By Dr. Ken Broda Bahm:
The now one-year-old coronavirus pandemic has caused courtrooms across the country to move many of their functions, as well as some full jury trials, into an online space. On the wisdom of that move, there are broadly two camps. The technological-optimists welcome the change, noting that trials can be more efficient and accessible, as well as less expensive and burdensome in some ways — advantages that could play a role in helping to save the jury trial. The technological-pessimists, on the other hand, emphasize that online platforms are plagued with shortcomings, and often designed in ways that are unsuited to the specific functions of a courtroom. For that reason, they argue, we shouldn’t be too quick to sacrifice the symbolism and the specific protective functions of an in-person courtroom trial.
One recent article (Bandes & Feigenson, 2020) finds a space in between these two extremes. “Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom” appears in the Buffalo Law Review. Professors Susan Bandes and Neal Feigenson (of DePaul and Quinnipiac Law Schools, respectively) provide a very close analysis of the practical communication differences between the in-person and online settings for trial and legal procedure. Over a comprehensive 79 pages, they share a wealth of considerations for the online trial, acknowledging but not aligning with either the technical-optimist booster or the reflexive and traditional critique. Their thesis is that our required shift into the online realm, because it “disrupts and calls into question longstanding assumptions about the conditions essential for the delivery of justice,” provides a unique opportunity to reassess what our legal practice and culture should value. While some things are lost, others might be found. In this post, I will briefly touch on some of their thoughts in three areas: demeanor evidence, the physical place of the courtroom, and the role of the public audience.
A Chance to Rethink the Importance of Demeanor Evidence
Based on the apparent belief that face and body language are natural, un-manipulated, and universally understood, trial law and practice has made it an “article of faith” that live witnesses are better, the authors note. The assumption is that we are able to get to the honesty and the emotive content of witnesses by looking at them. And because we can look at them better in a live setting, viewing testimony online is considered a sacrifice.
The problem, as Bandes and Feigenson note, is that this is “dubious folk knowledge” that has been actively rejected by those social scientists who have looked at it empirically. There is no good data to show that relying on live nonverbals provides an edge in that kind of assessment. There is some research, reviewed in their article, pointing to the possibility that testimony delivered online may be evaluated more negatively, and with less empathy. One possible reason is reduced eye contact, since communicators tend to look at the screen instead of the camera, and because the small images in the “gallery view” do not carry the same impact. Witnesses might also communicate less effectively due to boredom, unfamiliarity, or the heightened cognitive load of communicating online. And, of course, there could be audio or video problems with the platform. But while these factors demonstrate different constraints, they don’t amount to a deprivation of the ability to assess credibility based on demeanor. “If our legal culture continues to privilege physical courtrooms” they write, “it ought to be on a firmer basis than a mystical faith in the ‘elusive and incommunicable imponderable’ nature of demeanor evidence.” The solution is to instruct differently, and more accurately based on the social science regarding the limited role of demeanor itself.
A Chance to Reframe the Importance of Physical Space
The physical courtroom has a vaunted place in literature and drama. It is a public and sacred space, a “temple of justice” set up for a unique purpose. “When proceedings are forced onto Zoom, WebEx, or other virtual platforms, much if not all of that mystique or aura is likely to be stripped away,” the authors note, before asking, “Should we mourn it?”
Of course, some of that mourning would be based on a role that is more ideal than real. For example, the vast majority of cases in the pre-pandemic world were resolved out of court in far less public places. Inside the courtroom, things also aren’t often ideal. The sightlines, for example, are designed to give a judge and jury optimal viewing, but that often leaves out the gallery; I can’t count the number of times I have sat in a courtroom gallery looking at the back of a poster board and wondering what was on it.
Moving the trial online guarantees a good view to everyone, while also making participation less burdensome and more inclusive. Playing one’s part in the procedure, for example, might take an hour rather than the better part of a day. Participating from home is also less formal, with both the good and the bad that this implies. The greater fear, though, is that the videoconference seems ‘placeless,’ and that takes away from the emotional and symbolic importance we invest in the results, perhaps making them feel less momentous. The authors also note the chance that “fragmenting the virtual courtroom into a mere juxtaposition of personal settings,” makes it seem more private than public.
However, online environments can evoke place, as a generation of video-gamers can attest. Without going to the extremes, it should be possible to design online platforms that are customized to the trial purpose, and also capture at least some of the courtroom’s solemnity. The authors also argue that judges can also make explicit efforts to address the trial’s social importance, and to compensate for the perceived informality and placelessness by emphasizing the unique and special purpose of trial.
A Chance to Upgrade the Importance of a Public Audience
Those sitting in the gallery usually don’t play a formal role in the trial. But to the authors, they do play a ceremonial role. They are a “powerful reminder that the proceedings are not merely a private interchange, but a function performed on behalf of the community, in which community-wide problems are addressed and norms articulated.”
And, of course, the right to a public trial is one that is enshrined in the Constitution, and one that is restricted only in extreme settings. As with the physical space of the courtroom, however, this may be a consideration that is more ideal than real, given the reality that trials were rare in pre-pandemic times, being resolved far more often in the less public settings of summary judgment, arbitration, and mediation.
In that context, if online trials become more common, they also hold the chance of making trials more visible. With the public being able to watch a one-way stream of the web-conferenced trial, it could make it much easier for academics, the press, and simply interested citizens to see the public work of the court system. The authors note, “many more people can see justice being done if the proceedings are available on television or the Internet and not merely open to those in a physical courtroom.” In the process, we could have broader and more reliable access, without necessarily adding the media filter that is part of the “cameras in the courtroom” discussion.
Naturally, the article goes into much greater depth, and I believe that anyone with a stake in courts transitioning to an online space should read the full article. One reason is that online features are likely to be with us in some form even once we’re all vaccinated. The article quotes the Chief Justice of the Texas Supreme Court, “We’re going to be doing court business remotely forever. This has changed the world.”
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Other Posts on Online Trials:
- Online Trials: Expect Both Challenges and Opportunities
- Plan for Online Jury Trials
- Help Your Virtual Jurors Pay Attention
Bandes, S. A., & Feigenson, N. (2020). Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom. Buffalo Law Review, 68(5).