By Dr. Ken Broda Bahm:
The pandemic came upon us pretty quickly, and many of our essential social institutions, including the legal system, had to change just as quickly. The situation called for action, without a lot of time for reflection. Now, as we are swiftly reopening, that dynamic has changed: There is less of a need for urgent action, and perhaps more time to reflect. A recent article entitled, “The courts, the remote hearing and the pandemic: From action to reflection” (Legg & Song, 2021) draws on previous literature and experience around the globe in order to focus on current need for reflection on the future role of the partially-remote or fully-remote courtroom.
The authors are from the University of New South Wales School of Law, and Australia seems to be one of the leaders in practice and research on online courtrooms. Perhaps this is because many Australian jurisdictions have always needed to deal with large geographic distances, and as a result, remote video has been common in Australian courtrooms for nearly two decades. Some courts there were able to continue at normal capacity through the pandemic. In this post, I will draw from that article to reflect on the state of our knowledge on what works and doesn’t work for the online courtroom, and share my own list of the research questions that remain to be answered.
The Liminal Current State
The article notes that courts changed out of necessity, in “the largest, unforeseen mass-pilot of remote hearings across the world.” Naturally, there was a mix in how it was done, as well as a mix in its reported success and the reception it received. The reality is that at this stage, we don’t quite know the effects of online courtroom processes. There has been a great deal of anecdotal information, both from those who are technology boosters and from those who would prefer to keep nearly all trial activities in a physical courtroom. Advocates in both directions have had to speculate based on their experience.
Noting “a significant empirical research gap on fully remote hearings,” the authors note that the actual research is either just now emerging, or it is drawn from analogous, but not-quite-parallel, experiences with closed-circuit or video-recorded testimony. Naturally, there is also a wide variation in the remote-courtroom models tested and the specific technology used.
The current situation is that we are moving back into courtrooms and deciding what pieces, if any, of the remote experience we will want to keep. This is essential both because the necessity may return, and because some adaptations might be useful in solving some of the other problems that have made trials in many countries difficult, costly, and relatively rare. In short, we have a unique historical need for a participant-informed research agenda.
The Loaded Research Agenda
There is no shortage of questions calling for a systematic answer. We need both field and experimental research, with representative and valid samples, adapted to the many differences across courts. The research should focus on the full range of adaptations, looking at the influences of remote communication on the full scope of participants. Better answers will help to inform our considerations of which cases and which aspects of cases ought to be remote, and which should not. Some questions to be addressed through research include the following:
- Are there nonverbal cues (such as hand gestures, facial expressions, gaze direction, or posture) that are removed or distorted when testimony or advocacy is viewed remotely?
- To what extent does the video background, angle, lighting, or other characteristics influence the perception of remote testimony and remote advocacy?
- Are remote viewers (such as jurors) more likely to become distracted or to multitask during a trial?
- Do viewers of remote testimony or advocacy have an improved or reduced ability to see facial expressions and reactions?
- What specific technology best maintains quality and minimizes the risks of connection loss or degradation?
- How do larger monitors and a more spatially-immersive viewing setting influence the courtroom experience?
- Have recent improvements in video and audio quality changed the conclusions drawn from earlier research on “video testimony”?
- Do presenters and witnesses have greater self-consciousness when presenting remotely?
- Are remote witnesses more likely to be seen as alienated, distant, dehumanized or “other”?
- Are witnesses hampered in presenting intense or emotional testimony when presenting remotely?
- Do vulnerable witnesses (lower age, cognitive differences, etc.) fare differently when testifying remotely?
- Do some witnesses (I.e. child witnesses) experience greater confidence or less intimidation when testifying remotely?
- Are inmates likely to be viewed or treated differently when appearing on camera by themselves, without their attorney by their side?
- What specific video and audio conditions should prisons and jails institute in order to minimize the adverse influence of remote appearances and testimony?
- Are clients less able to build trust and rapport with their attorney when both are participating remotely?
- Are attorneys able to be less aggressive or less emotional when presenting or cross-examining via camera?
- To what extent, if any, does remote questioning influence the “rhythm” of an examination?
- Are attorneys less able to build trust and rapport with a jury when presenting remotely?
- Do judges tend to interrupt less and ask fewer questions when participating remotely?
- Does remote participation lead to greater informality, or undercut the solemnity and gravitas of courtroom proceedings?
- Do participants experience a greater cognitive load when participating remotely, or otherwise find it more taxing (Zoom fatigue)?
- Does “Zoom fatigue,” limit the ideal daily duration of courtroom proceedings?
On these topics, there are definitely opinions, and some are informed to some degree by the research. But comprehensive answers lie in the future, and the key is to know before deciding what we want to keep from the remote courtroom experience, and how we want to apply it. As the authors conclude:
As remote hearings evolve from an emergency measure to a matter of course, the lessons learnt from the decades of research into [remote video] combined with the experience from fully-remote hearings during the pandemic can provide a strong anchor for innovation to flourish without losing sight of the fundamental principles of our legal system.
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Other Posts on Remote Trials and Hearings:
- The Distributed Courtroom: Don’t Assume the Trial Feels Any Less ‘Real’ When It Appears on Screens
- The Virtual Trial: Be Conscious of What Is Lost and What Is Found
- Prepare for Your Zoom Hearing
Song, A., & Legg, M. (2021). The courts, the remote hearing and the pandemic: From action to reflection. University of New South Wales Law Journal, 44(1), 126-166.