The holding of today's Ninth Circuit opinion seems right to me, but I might have expressed the same view in a slightly softer tone.
A juror's wife gets sick in early 2021, and since it's the middle of the pandemic, people freak out that the wife -- and, by extension, the juror -- might have COVID. One option is to excuse the juror, but another is to have the juror temporarily view the trial remotely. The government isn't keen on that idea, but defendant is psyched for it, and the trial judge (Judge Du, in Nevada) thinks it's the best option. So Judge Du makes a very clear record that the defendant wants the juror to stay and to view the proceedings remotely, and the juror then does so for a couple of days, thereafter returning to participate in jury deliberations, ultimately resulting in a unanimous guilty verdict.
Defendant then appeals, claiming that the juror shouldn't have been able to remotely view the trial for those two days.
That's a tough sell, of course, since the defendant himself was totally in favor of the procedure that the district court employed. Doctrinally, however, if remote viewing is a "structural" error, then the fact that the defendant consented doesn't matter. So the question then becomes whether or not having jurors view a trial remotely is a structural error, or whether (instead) they have to specifically show prejudice.
The Ninth Circuit says that structural errors are rare, and that's true. But they exist. Things like not having a lawyer, not having a public trial, not being able to represent yourself, etc. We call those things types of "structural" errors in part because they're fundamental, and in part because it's super hard to demonstrate particularized prejudice from their denial. Take the right to a public trial, for example. There's no way that a criminal defendant will ever be able to show "prejudice" from keeping out the public, since the evidence and facts would presumably all remain the same. So if we required a showing a prejudice, we would never reverse. So we call these things "structural" and require reversal per se.
Today's opinion holds that having a juror (or jurors) view the trial remotely isn't a structural error, and I can see why that's the case.
But it's a lot closer, I think, than the current opinion might suggest.
Yeah, sometimes, you can identify particular errors with viewing testimony remotely -- for example, if the feed went out or the juror was watching ESPN instead of the trial -- and reverse on that basis. But there are other -- important -- reasons why we want trials to be in person that aren't amenable to similar showings of particularized prejudice. For example, one reason we have in-person trials is because we want the jurors to physically see (and, typically, be in the same room) as the defendant. You're deciding guilt or innocence, and sometimes life or death. (Here, the ultimate sentence is a little shy of 15 years in prison.) That's a fairly personal decision. We want you to physically be there. To show up in the majesty of a courtroom and look the defendant in the eye when you adjudicate their fate.
That's why -- back in the old days -- the Ninth Circuit held, for example, that it was structural error for a jury to sentence someone in absentia, without being physically present. A Ninth Circuit opinion that I happen to know a fair amount about since it was written (way back in 1992) by a judge for whom I was then a law clerk. Now, that particular Ninth Circuit ruling was subsequently overruled by a sharply split en banc opinion written by Judge Kozinski. But the principle remains, and the point is simply that it's a close issue sometimes. Physical presence matters. Sometimes, it's structural. Which is one reason why, for example, we don't conduct in absentia criminal trials (unless the defendant absconds after the trial commences). Some other countries convict people even if the defendant isn't present, on the theory that it doesn't really matter -- e.g., the defendant can't show specific prejudice. We don't.
You can see, I think, the potential parallel between a defendant not being at the trial, on the one hand, and a juror not being at the trial. Are there arguable differences? Of course. And, again, I can see why a panel might hold (as here) that so long as the defendant's affirmatively psyched for it, it's okay to allow a juror to view proceedings remotely for a limited period of time.
Still. It's a close one. So I'd have written the opinion cautiously. Including but not limited to talking about the structural errors of in absentia proceedings in general -- a topic that's entirely omitted from today's opinion.
But, hey, in the end, if you're okay with a juror viewing proceedings remotely for a couple of days, perhaps because you're thrilled to have that particular juror stay on the jury rather than be excused for cause, feel free. I'm okay with that. Your call.
