The global coronavirus pandemic is having profound effects and the responses by governments, health care providers, individuals, etc., is ongoing. At this time (mid-March) we do not have all the answers and the totality of what may happen is yet to be learned. Nevertheless, there are actions we can take to help mitigate the spread of the coronavirus. One way this can happen is to have courts use technology to enable remote personal appearances. Today’s blog post is written by Professor Anne Wallace, whose research about the issues involved in such remote appearances provides valuable information for courts worldwide to consider as they cope with the coronavirus pandemic. Many thanks go to her for this valuable information.
Courts and Coronavirus: Is Videoconferencing a Solution?
As the COVID-19 virus was officially declared to be a pandemic this week, courts, along with other public institutions, began working out how best continue service to the public while minimizing the risks associated with large gatherings of people. U.S. federal and state courts are taking a variety of measures, including restricting visitors to court buildings, cancelling or suspending hearings, screening detainees, and conducting only essential matters face-to-face – https://www.abajournal.com/news/article/one-federal-court-suspends-court-appearances-others-restrict-visitors-amid-coronavirus-concerns,https://www.ncsc.org/Newsroom/Public-health-emergency.aspx. UK Courts are taking similar measures – https://www.gov.uk/guidance/coronavirus-covid-19-courts-and-tribunals-planning-and-preparation, as are courts in Singapore – https://www.supremecourt.gov.sg/quick-links/visitors. In Australia, too, the COVID-19 virus has begun to impact the legal system; as I am writing this, the Chief Justice in my State of Victoria has announced that all new jury trials will be suspended, and the Federal Court of Australia has announced that it will limit face-to-face hearings to essential matters only – https://www.theage.com.au/national/victoria/victorian-trial-adjourned-after-juror-reports-coronavirus-symptoms-20200313-p549x2.html.
One of the measures being adopted by courts to limit the risk of spreading the virus includes either encouraging or requiring greater use of videoconferencing in place of face-to-face hearings. This technology is a familiar feature in the courtrooms in many countries these days. Depending on the legal rules in the particular jurisdiction, it might be used for overcoming the cost and security risks associated transporting prisoners to and from court, sparing the time and travel costs of witnesses, making it easier for vulnerable witnesses (including children) to testify from a place where they feel safer or less intimidated, as well and to enable judges or lawyers physically located in one courthouse, chambers or office space to take part in a hearing.
While it clearly has advantages, there are also associated concerns that should not be overlooked in any expansion of videoconferencing use. As my colleague Emma Rowden and myself explain in our recent publication on videoconferencing for expert evidence (see research links below), our research and that of others makes it clear that a videoconference doesn’t simply act as a ‘pipeline’ conveying an individual’s picture and words from one place to another so that they are ‘present’ in the courtroom in a way that is equivalent to physical presence. Their presence is ‘mediated’ by the technology in ways that make the experience of appearing by videoconference, and the experience of others viewing them, different to the equivalent ‘in court’ appearance . The ‘remote’ participant – whether it is the defendant, the witness, the judge or the lawyer – will likely experience some or all of these issues:
- Difficulty in giving and receiving non-verbal cues from the other participants in the proceeding;
- Difficulty in hearing or seeing all or some of those participants as well as they could if they were in the courtroom;
- Lacking the same opportunity to observe and take cues from others in the remote physical space, and perhaps even to fully appreciate the significance of their role;
- They will be seen and heard by those in the physical courtroom in ways that are dependent on the quality and configuration of the videoconferencing set up: how it frames them, how good the sound it, how fast the connection is and how well it is synced with the picture, and what views are available at either end of the link.
These experiential differences and issues may be of little significance in a more formal, or administrative, type court appearances, such as remands, pre-trial conferences or motions, adjournment hearings or case conferences. And, for some types of matters – for example, a child witness — some of these effects may be advantageous in making court appearances less intimidating . However, they may be more problematic in hearings and trials involving contested evidentiary issues, or issues of credibility, where the stakes are higher.
It may be more difficult for a lawyer to establish rapport with a witness over videoconference, or to cross-examine effectively. For expert witnesses, giving evidence via videoconference can compromise ability their ability to use gesture and interact with exhibits and demonstrative tools. Limited views can also make it more difficult for the expert to assess whether the jury is following their evidence, and an expert’s failure to perform convincingly on the screen may adversely impact the court’s assessment of their reliability, credibility and expertise.
Defendants appearing via videoconference from prison can also find their ability to fully participate significantly impacted. Research has identified that defendants appearing in court by videolinks from prison can feel isolated and excluded, find it difficult to communicate with their lawyer, and miss out on the support provided by glimpses of family and friends when they appear in the physical courtroom.
Some of these concerns can be addressed by improved technology – unlikely to be an option for a court considering increasing its use of videoconferencing in the short-term during the Covid-19 pandemic. However, careful planning and attention to the way the technology is set up and operated, provision of more information and support to the ‘remote’ court participant, can ameliorate some of the disadvantages . The Gateways to Justice report produced from a research partnership with two Australian court agencies, contains some useful suggestions about these matters – see Research Links below.
Videoconferencing technology plays an important role in delivering justice in many court systems today, and in a time of a pandemic it is a logical step to consider expanding its use as a way of minimizing the number of people that need to be brought together in close physical proximity. However, it shouldn’t be regarded as a panacea, and courts need to carefully weigh some of its potential disadvantages in deciding whether other options might produce better, if somewhat delayed, outcomes
- E Rowden & A Wallace, Performing expertise: the design of audiovisual links and the construction of the remote expert witness in court – https://journals.sagepub.com/doi/10.1177/0964663918802991
- A Wallace, S Roach-Anleu & K Mack. Judicial engagement and AV links: judicial perceptions from Australian courts.
- A Wallace Virtual Justice in the Bush: The Use of Court Technology in Remote and Regional Australia.
- E Rowden E, A Wallace, J Goodman-Delahunty,Sentencing by videolink: Up in the air?.
- Gateways to Justice report: Design and Operational Guidelines for Remote Participation in Court Proceedings – https://researchdirect.westernsydney.edu.au/islandora/object/uws:15505
- Dr Carolyn McKay interviewed about her research on prison videolinks – https://www.abc.net.au/radionational/programs/lawreport/10464568, published in “The Pixelated Prisoner: Prison video links, court ‘appearance’ and the justice matrix’, Routledge (2018). https://www.routledge.com/The-Pixelated-Prisoner-Prison-Video-Links-Court-Appearance-and/McKay/p/book/9781138085107
Dr Anne Wallace is an Adjunct Professor with Latrobe University, and the Sir Zelman Cowan Centre at Victoria University, in Melbourne Australia. Her research focuses on the field of judicial administration and has included the application and implications of technology in courts (access, privacy, interactive visual evidence, videoconferencing and social media), judicial workload allocation, court safety and security, court workforce development and judicial education.