Error to allow juror to participate in criminal trial remotely by Zoom?

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The Court of Appeals, Lasnik, District Judge, sitting by designation, held that:
district court's alleged error in permitting juror to participate in criminal trial remotely did not fall within limited class of structural errors that could not be waived, and defendant's waiver of his right to insist that all jurors be present in courtroom during his trial was knowing, voluntary, and intelligent.
The panel affirmed Edward Knight’s robbery convictions in a case in which a juror participated remotely in the first two days of trial.
Knight asserted that permitting a juror to participate remotely via Zoom violated his Fifth and Sixth Amendment rights, that the error was structural and could not be waived, and that he is therefore entitled to a new trial without having to show prejudice. The panel assumed without deciding that criminal defendants have a constitutional right to the in-person participation of jurors during their trial. Knight asserted that the alleged error is akin to depriving him of his right to a jury trial, depriving him of his right to a fair and impartial jury, depriving him of a representative jury, and/or depriving him of his right to confront witnesses. The panel wrote that none of these comparisons is apt, as there is no indication in the record—and no reason to suppose—that the remote participation of a duly empaneled juror interfered with the functioning of the jury, somehow made that juror partial or unrepresentative, or impacted the procedures used for the presentation of witnesses. The panel wrote that allowing remote juror participation does not impact the entire framework of the trial in ways that cannot be accurately measured on review. Rather, it merely creates room for the types of problems and errors identified by Knight, such as difficulties in seeing exhibits, hearing testimony, and/or viewing witnesses. But none of those errors will necessarily arise simply because a juror is participating remotely. The panel wrote that there is no case law or record evidence to support a presumption that the remote participation of a juror will always render a trial unfair and the judgment unreliable; the alleged error simply does not fall within the limited class of structural errors that cannot be waived and which require automatic reversal.
Noting that non-structural errors can be waived, the panel wrote that the procedure the district court used to confirm that Knight’s waiver was knowing, voluntary, and intelligent was sufficient. Knight conceded that he consented to remote juror participation, but argued that the district court did not obtain a valid waiver because it did not inform him of the constitutional nature and implications of waiver. The panel wrote that this argument fails in light of Knight’s knowing, intentional, and voluntary abandonment of the cl

Anton Vialtsin, Esq.
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