By Dr. Ken Broda Bahm:
So the expert has arrived in town for trial. Their testimony could come today…or maybe by Thursday, and it isn’t unthinkable that it could get pushed into next week. Meanwhile, the waiting, and the billing, continues. This is just one of the factors that makes litigation expensive, creating unequal access and at times, pushing clients toward settlements that the facts might not warrant. It is also entirely a product of the expectation for in-person testimony. If the expert could just testify by Zoom, then it creates quite a lot of flexibility. With the coronavirus came the realization that many things can be done remotely, often with as much or more effectiveness. Now that the Omicron variant has brought us back to the pandemic peaks, there’s the potential that judges will continue to be more open to remote testimony. In the short run, remote testimony minimizes travel and exposure danger. But in the longer-term, remote testimony could also create a more economical and even playing field for litigants.
But is remote expert testimony as effective? According to a study in a forthcoming psychology dissertation from the University of Southern Mississippi (Jones, 2023), the answer is “Yes.” The author, Ashley Jones, used an experimental approach to test the effects of viewing testimony and cross-examination of a forensic psychology expert under three conditions. The expert was shown testifying either physically in a courtroom, by telephone with audio only, or via two-way videoconferencing. The result was that, while there were fewer characteristics of witness efficacy endorsed in the phone-only condition, there were no differences in the participants’ perceptions of the expert or the opinions offered in the video and the in-person conditions. She concludes, “Psychology experts can use remote technology and expect their credibility and effectiveness on the stand to remain largely intact, with minimal risk that the method of testimony will influence legal decisions.” In this post, I will take a look at the research and its implications.
The Research: So Far, Pretty Equivalent
Courts have long applied a strong presumption against remote testimony. Before the pandemic, that presumption had only recently weakened in cases involving immigration, child victims, or terrorism. But the empirical foundation for the belief that effective testimony and “confrontation” of witnesses could only occur in-person has been notoriously under-researched. A handful of studies, some dating back to the 1970’s, tended to show a general equivalence in the effects of in-person and videoconference communication. Other research, focusing on asylum hearings in one instance, showed less effectiveness when the testimony was remote.
The problem is that much of this research is theoretical or practice-based, lacking a clear control group. In the present study, the researcher controlled for the expert and the testimony itself, varying only the mode of communication in order to assess the expert’s credibility, efficacy, and social presence, as well as the weight assigned to testimony when making a decision. Finding that the “overwhelming majority agreed with the expert regardless of how she testified,” she concluded that the research buttresses the case for normalizing the option to present remote expert testimony during and after the coronavirus pandemic.
The Implications: Communicate Well Whatever the Mode
Interestingly, the research does point to several factors that matter more than the medium of testimony. For example, the study showed that something called “social presence” predicted more expert influence than the mode of testimony as either in-person or remote. Social presence refers to the tendency to be perceived as sociable rather than unsociable, warm rather than cold, personal rather than impersonal, and sensitive rather than insensitive. The greater the social presence, the greater the credibility. “Social presence,” she concludes, “may be an especially important factor for ensuring an expert’s opinion is valued in court — one that is not necessarily depreciated by the use of technology.”
In addition, the researcher found that experts who are seen as being invested in the testimony (interested and committed, as opposed to being dispassionate and removed) encourage jurors to put more weight on their testimony when making a decision.
So ultimately, the takeaway is that attorneys and experts shouldn’t assume that remote testimony means less effectiveness. The takeaway is also that communication matters more than technology, and experts should strive to communicate well no matter the mode of testimony.
Other Posts on Remote Testimony:
- Adapt to Remote Communication (Including Testimony)
- The Post-Pandemic Courtroom: Reflect on When Remote Court Still Makes Sense
- Don’t Assume Virtual Communication Creates Less Empathy
Jones, A. (2023). Does Convenience Come with a Price? The Impact of Remote Testimony on Expert Credibility and Decision-Making. Dissertations. https://aquila.usm.edu/dissertations/1896.