In the first published criminal decision of the year, United States v. Knight, --- F.4th ---, No. 21-10197 (9th Cir. 2023), the Court affirmed Edward Knight’s robbery convictions in a case in which a juror participated remotely during the first two days of trial.
Although Knight repeatedly agreed to allow the juror to appear by Zoom, on appeal, he asserted that permitting a juror to participate remotely 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 Court disagreed. It assumed without deciding that criminal defendants have a constitutional right to the in-person participation of jurors during their trial. The Court held, however, that the right was not structural, and that Knight had waived any objection to the juror's remote appearance.
"The procedure that the district court used in this case to confirm that the waiver was knowing, voluntary, and intelligent was sufficient. Knight was specifically informed on several occasions that he had the right to insist that all jurors be present in the courtroom and, when questioned by the district court, he indicated that he understood that he had that right. Knight was present when the various options for dealing with Juror 10’s situation were discussed, including the juror’s dismissal and replacement with an alternate. He was present as counsel identified all the things that could go wrong with remote participation. And he affirmatively indicated that he understood what was going on. Having had the opportunity to confer with counsel, Knight chose to waive the right to have all jurors participate in person and agreed to Juror 10’s remote participation."
Thus, the Court concluded, "[t]he district court did not err when proceeding with a remote juror given Knight’s knowing, voluntary, and intelligent waiver of any right he may have had to the juror’s in-person participation."
