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Abstract

Judges perform an important role on behalf of society, as impartial decision-makers; interpreting and applying the law, presiding over courtrooms and ensuring a fair trial. The image of the judge, that is the way that they are viewed culturally, reinforces their role, by emphasizing their authority and neutrality, and thus supporting the legitimacy of the court as an institution. Increasingly, however, judges are performing their roles using videoconferencing, where either they, or other participants, are physically located outside the courtroom. Reporting on a three-year empirical study on the use of videolinks in Australian courts, this paper argues that the introduction of videoconferencing technologies in court has had a profound impact on the production, management and consumption of judicial images, and that has implications for the role of the judge. We contend that videolinks challenge cultural assumptions about both how the role of the judge is performed, and what the image of the judge should be. We argue that increased attention needs to be given to the crafting of the image of the judge received on the video link, so as to achieve greater congruence between that image and the role of the judge. The judicial role itself may need to encompass increased awareness of, and responsibility for, that task
Remote judging: the impact of video links on the image
and the role of the judge
Emma Rowden1* and Anne Wallace2
1
Chancellors Postdoctoral Research Fellow, School of Architecture, Faculty of Design, Architecture and Building, University
of Technology Sydney and
2
Professor, Associate Head of School, School of Law, La Trobe University
*Corresponding author. E-mail: emma.rowden@uts.edu.au
Abstract
Judges perform an important role on behalf of society, as impartial decision-makers, interpreting and
applying the law, presiding over courtrooms and ensuring a fair trial. The image of the judge how
they are viewed culturally reinforces their role, emphasising their authority and neutrality, thus support-
ing the legitimacy of the court as an institution. Increasingly, judges use video conferencing where either
they, or other participants, are located away from the courtroom. Reporting on a three-year empirical
study, this paper argues that the introduction of video-conferencing technologies in court has had a pro-
found impact on the production, management and consumption of judicial images, with implications for
the role of the judge. Video links challenge cultural assumptions about how the role of the judge is per-
formed and what the image of the judge should be. We argue that greater congruence needs to be achieved
over video links between that image and the role of the judge.
Keywords: video links; judges; courts; courtroom; judgecraft; judicial image; virtual court; distributed court
1 Judging by video link
Since the travelling justices of Henry IIs court, judges have generally performed their role in the same
spatial arena as all other parties in the case, including the public. The place of justice, the court, has
been synonymous with the location of the judge.
1
With the introduction of video conferencing into
court proceedings from the late 1980s, this relationship has dramatically shifted.
2
The use of cameras,
television screens, microphones and speakers linked by Internet or telephone connections has allowed
judges to appear to parties on screen and to preside over matters remotely. It is now possible for a
judge to sit in one location and for every other party in the proceeding to be elsewhere. As a result,
court proceedings and the image of the presiding judge are no longer confined to a single discrete
courtroom, but have become a spatially distributed event, extending the boundary of the court to
other buildings, such as libraries, forensic laboratories, university offices, barristerschambers, com-
munity centres, hospitals and police stations. Traditionally, courts have taken a very conservative pos-
ition on the dissemination of judicial images on film and it has been argued that image-making and
image management are important components of the judicial role (Moran, 2013; Baum, 2005). Given
that, in many jurisdictions, the proceedings of courts are rarely broadcast on television, video confer-
encing has, for the first time, allowed the presence of the judge sitting livein court to be frequently
transported and transformed, and viewed in places other than the courtroom.
3
While the use of video conferencing in court proceedings has interested academics for the past
thirty years, many expressing concerns (Mulcahy, 2008; Poulin, 2004), scholarship has been largely
© Cambridge University Press 2018
1
We use the word judgeto denote judicial officers (persons appointed to a judicial role) in higher-level and intermediate
courts, as well as those appointed to lower-level courts (in some jurisdictions designated as magistrates).
2
For instance, legislation governing the use of video links by Australias Family Court defines a court constituted by two or
more judges sitting at the same time but in different places linked by audio-visual technologies as a split courtand provides
that the Court is taken to be sitting at the place at which the presiding Judge is sitting, Family Law Act (1975) Cth, s. 27(3).
3
But see use of the Internet to broadcast judgments of the UK Supreme Court (Moran, 2016).
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focused on specific uses of this technology most notably on its use for taking evidence from children
and vulnerable witnesses (e.g. Davies and Noon, 1991; Cashmore and De Haas, 1992; Taylor and
Joudo, 2005). Attention has also been given to the use of video links for facilitating the appearance of
defendants (McKay, 2018; Diamond et al., 2010; Poulin, 2004) and for its use in immigration hearings
(Haas, 200607; Federman, 2006). Far less consideration has been given to its use for other types of
participants, such as experts (but see Wallace, 2011;2013), even less on the implications of its use for
lawyers and judges. This is surprising, given that they are generally key participants in court video links.
Recent research does, however, hint at the potentially transformative impact that the introduction
of this courtroom technology might have on the judiciary. Lanzara and Patriottas(2001) study iden-
tified that work practices of judges were being challenged with the shift from audio transcription to
video-cassette-recording technologies. Licoppe and Dumoulins(2010) study revealed ways in
which traditional court rituals were being disrupted by the introduction of court video links.
4
Others have shone a light on the unique position of the judge in an information environment that
is more intensive, more extensive and less controllable than it was in the past(Thompson, 2005,
p. 48) and in which cameras have traditionally been kept out of courts.
5
In light of this, Morans recent
work (2016) on the broadcasting of judgments of the UK Supreme Court identifies how the crafting of
the judicial image for consumption outside of that court environment is informed by a number of
unwritten rules and principles, the facilitation of the technology, as well as court policies and frame-
works. We found, however, far less conscious attention being given to the crafting of the judicial image
in video-linked encounters in the courts we studied.
Reporting on a three-year empirical study on the use of video links in Australian courts, we argue
that their introduction has had a profound impact on the production, management and consumption
of judicial images, and that has implications for the judges in-court role both as traditionally con-
ceived and in practising new types of therapeutic jurisprudence that require increased emphasis on
engagement with other court participants. We argue that fundamental judicial tasks, such as monitor-
ing participant behaviour, exercising control over proceedings, ensuring a fair trial, facilitating witness
testimony and conveying and demonstrating community-held values, are transformed when performed
via video link. How the judge appears to other court participants, how judicial rituals operate and how
the technological and spatial architecture that underpins the distributed courtroom works are all vitally
important in presenting the judge as authoritative and the court as legitimate. We argue that the judge
has less direct control over the management of the distributed courtroom and over the production of
their image than is the case in the physical courtroom, and that these two shifts have implications for
the reception of the judges image and even, perhaps, how judges view the performance of their role.
2 The role and image of the judge in court
The work undertaken by a judge in a courtroom is the most publicly visible aspect of their role and
helps to create and sustain their cultural image. The judge embodies the authority of the court, as an
adjudicator and as the authority responsible for managing the court and the other courtroom parti-
cipants. Any dissonance between the image of the judge and the nature of their role potentially
detracts from their effectiveness because courts, unlike other branches of government, essentially
rely on public acceptance of their legitimacy.
The nature of the judges role will vary, depending on the jurisdiction and the nature of the work
allocated to them, but may consist of conducting various types of preliminary hearings, taking pleas of
guilty to criminal charges, presiding over trials, sentencing offenders, delivering rulings or judgments
and hearing appeals. In an adversarial trial, the judge must control and monitor proceedings to ensure
that the rules of evidence and procedure are followed (Kiefel, 2013, p. 6) and that parties, witnesses,
4
Their accounts draw upon assemblage (De Landa, 2006) and Actor-Network Theories (Latour, 2005), which have also
influenced this interpretation of our data.
5
Judges, therefore, have remained somewhat immune to what Thompson (2005) describes as the mediated visibilityand
intense public scrutiny to which other leaders of high office, such as politicians and government officials, have had to adjust.
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lawyers, jurors, media and members of the public behave appropriately in the courtroom. The judge
decides what evidence is admissible and how it is given, such as whether in the form of in-court tes-
timony or by video link. The judge may ask direct questions of a witness, although they must be careful
not to interfere with the conduct of the case in doing so (Finkelstein, 2011, p. 138).
6
A judge who has a
fact-finding role will listen to the evidence and draw conclusions from it in order to make their find-
ings and ultimate decision. That may involve forming impressions of a witness (as to their credibility
or reliability) and determining the value that should be attached to their evidence, although it has been
acknowledged that demeanour is not always a reliable guide to determine whether or not a witness is
telling the truth (Kiefel, 2013, p. 6). In a jury trial, the judges role is to sum up the facts for the jury
and direct them as to the law that they must apply in reaching their verdict (Kiefel, 2013, p. 5). The
judicial role in the courtroom also involves communication with the parties or their legal representa-
tives hearing submissions on procedural issues, points of law and final submissions, directing ques-
tions to those making those submissions, as well as delivering rulings and judgments.
In Weberian terms, judgesperformance or enactment of their authority in their courtroom role
reinforces the laws claim to legitimacy. Traditionally, this has been hypothesised as requiring that
the judges primary function, when presiding over a trial, is to perform an impartial adjudication,
embodying impersonal, unemotional detachment(Roach Anleu and Mack, 2015, pp. 10521053;
see also Shaman, 1996). However, more recently, it has been argued that legitimacy also requires an
assurance of procedural fairness, which, in turn, requires a degree of engagement between the
judge and other courtroom participants (Tyler, 2003; Mack and Roach Anleu, 2010). This may be par-
ticularly important in sentencing, where judges can employ a range of communication strategies to
accomplish legitimacy, such as directing their gaze and speech directly to the defendant to create a
more engaged, personal encounter(Roach Anleu and Mack, 2015, p. 1064). Effective judicial engage-
ment is also a hallmark of the therapeutic and problem-solving approaches to justice implemented in
some criminal courts over recent decades, largely in the sentencing phase, to address offender behav-
iour related to issues such as illicit drug use, mental health problems and homelessness (King et al.,
2014). They require a more relational approach to judicial work, where judges make greater use of their
personal and interactional skills (Roach Anleu and Mack, 2017; Wallace et al.,2012) to secure more
effective sentencing outcomes. As has been noted (Wallace et al., 2017), this development has occurred
at a time when courts are also under increasing pressure to use technologies, such as video links, to
improve the efficiency with which they conduct their proceedings.
Judicial appointment criteria in Australia reinforce the cultural image of the judge as embodying
both neutrality and engagement. This requires the capacity to inspire and demonstrate respect, main-
tain authority, deal impartially, treat all persons fairly, communicate clearly and listen with patience
and courtesy (AIJA, 2015). Aesthetically, clothing, court rituals and the architectural framing of the
judge on the dais have historically supported this construct in a variety of ways. Official judicial
dress such as robes, but also the wigs and jabots more common in the higher courts does more
than just signal that the legal event is out-of-the-everyday. It signifies the authority of the judge to
make what are, for some, life-changing pronouncements on behalf of the community and, on a
more practical note, decreases the likelihood of identification of the judge outside of the court.
Their elevated seating on the judicial dais also fosters a certain distance between the bench and parti-
cipants. In combination, these features help to distinguish the office of the judge from the actions of a
citizen randomly imposing their will on others and reinforce the legitimacy of the courts. These dis-
tinctions also help to create boundaries, as Dovey (2010) contends: [a]uthority relies on clear bound-
aries, identities and practices the architecture of the courtroom stakes out the territorial boundaries
of judicial power(p. 128). In the following section, we provide a background to the study in which we
found that the use of video links in courts has begun to blur some of these boundaries.
6
Finkelstein also suggests that the judges right to ask questions is possibly confined to clarifying ambiguities or raising
relevant matters that have not emerged in the witnesss evidence.
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3 Video-link use in Australia: a study
This paper draws upon the findings of an empirical research project that examined the trend towards
using audio-visual links in Australian court proceedings, with the aim of improving communication
between court participants.
7
It employed a mixed-methods approach, combining field research, sur-
veys, interviews and experimental work. Some methods were directed to more specific issues within
the general field of inquiry. The surveys focused principally on the extent to which video links were
used to take forensic evidence, while the experimental work sought to examine the impact of the
use of video links on the experience of witnesses and the reception of their evidence. This paper
draws on data collected from the field research conducted in the form of site visits to locations
from which video-link evidence was taken and in which it was received, and on data from a series
of interviews conducted with key stakeholders.
8
These methods yielded a wealth of qualitative data
from which the authors were able to assess the impact of the use of video links on the way that the
judicial role is performed and judicial authority is enacted.
Site visits were conducted principally in two Australian jurisdictions that were industry partners in
this project Victoria and Western Australia which both make extensive use of video links. A total
of twenty-seven courthouses and twenty-two remote siteswere visited.
9
These were selected as rep-
resentative of the wide range of spaces that might be connected using court video links. These visits,
which took approximately one hour, were documented by means of notes, using criteria developed by
the research team, which recorded the rooms scale, size, materials and ambience, together with photo-
graphs and sketches. Where possible, photographs also included on-screen views. Inspections included
the remote spacefrom which evidence was taken (whether a purpose-built audio-visual suite or
another courtroom) and, in the case of a purpose-built facility, its entrance, waiting areas and the
entrance of the building in which it was located. Further valuable insights were obtained at some
sites where the research team was permitted to use the video link to interact with each other between
a courtroom and a remote space. These experiences, together with the other findings from the site
visits, provided important contextual information to assist in conducting the interviews and in enab-
ling the research team to appreciate the perspectives and information offered by the interviewees.
Interviews were conducted with sixty-one stakeholders about the use of video links in courts, with
participants selected via a snowballing process amongst the industry partners
10
to the project. They
included judicial officers ( judges and magistrates), lawyers, court staff, architects, expert witnesses,
technical support staff and remote court officers.
11
We used a semi-structured interview format to
ensure consistency between the content of each interview. Meanings were co-constructed in an inter-
active negotiation(Lather, 1991, p. 60) where both the researchersand interviewees positions were
adjusted throughout; the researchers used self-disclosure of their forming viewpoints on the subject
matter to encourage this dynamic. Interviews were anonymised in accordance with the research ethics
permission.
12
Analysis of the interview and site visit data for this paper focused on three principal
7
Gateways to Justice: Improving Video-Mediated Communication for Justice Participants, Australian Research Council
Linkage Project (LP0776248) led by Professor David Tait (Western Sydney University).
8
Ethics permission was granted for this project by University of Canberra, Human Research Ethics Committee (Ethics
Approval Project No. 0857) and the Victorian Department of Justice Human Research Ethics Committee (Ethics
Approval No. CF/08/15559).
9
These were compared with twenty-two courtrooms and three remote spaces visited in Europe. All visits were documented
by the first author.
10
Western Australia Department of the Attorney General, Department of Justice Victoria, Australian Federal Police, the
Australian Capital Territory Department of Public Prosecutions, Jumbo Vision, ICE Design, PTW Architects and
Production Audio Services.
11
These were nineteen judicial officers, fifteen expert witnesses, eight remote court officers, six lawyers, six court technol-
ogy officers, three court administrators, three architects and one judgesassociate.
12
Interviews were numbered and given an alphabetic code to indicate the jurisdiction and category of the interviewee. For
example, I047VICE, I = Interview, 047 = Interviewee number 047, VIC = Victoria and E = expert witness. Other codes
include: WA = Western Australia, NT = Northern Territory, OS = overseas, M = Magistrate, S = Supreme Court Judge, D =
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areas: the extent of the use of video links to undertake judicial work, the way in which judges used
video links and the effects of their use on the performance of the judicial role.
4 The expanding use of video links
It became evident through the course of the research that use of video links in Australian courts was
far more extensive than had previously been documented and that judges were presiding via video
link in a variety of different contexts and environments. Beyond its well-known use for taking evi-
dence or allowing a defendant to appear from a prison or remand centre, interview data revealed
that judges, supported by a range of legislation that presumes or permits its use (for a summary,
see Rowden et al.,2013,pp.9596), are using video links for a wide variety of purposes and in
many different situations. Video links are routinely used to conduct various types of pre-trial or
other administrativehearings. In criminal cases, this might include the use of video links (to pris-
ons or other courtrooms) for the purposes of remand hearings, bail applications or hearings to dis-
cuss how a trial will be managed or run.
13
In civil cases, video links might be used to conduct
various types of directions hearings with lawyers, advocates or parties
14
and can involve linking
to other courts, to law firms, barristerschambers or private locations. In hearings or trials, video
links are being used to take evidence from witnesses generally
15
and from expert witnesses
16
for
various reasons including convenience and cost-saving. It has been particularly useful for facilitating
the testimony of witnesses located interstate or overseas, and for taking evidence from children and
other vulnerable witnesses.
17
Video links also may be used at the conclusion of a case to deliver a
sentence
18
or to hand down a judgment.
19
They are also being used to more efficiently manage
court workloads by bringing a judge remotelyto another court location, such as to deal with urgent
applications for restraining orders in domestic-violence cases,
20
to fill in for another judge who is on
leave or unwell,
21
to enable judges to finish matters that they had begun while on circuit
22
and to
receive a pre-sentence report or deliver a sentence.
23
In any of these situations, any number of
trial participants, including the judge, could be attending remotely.
24
Many of the uses described
above are discretionary and another analysis of these data has found that there are a range of factors
that influence judicial decisions to allow or disallow the use of video links (Wallace, 2011). In this
paper,however,wefocusratherontheimpactontheimageandtheroleofthejudgeinthosecases
where video links are used.
5 The video-linked image of the judge
Our study revealed that judges appeared on screen during video-linked hearings in several different
ways, each with implications not only for the way the judge might perform their role, but also for
how they presented to other court participants. Perhaps most commonly, judges appeared from within
a full courtroom, seated at the judicial bench upon the dais. The judge was then visible to the remote
District or County Court Judge, LEC = Land and Environment Court Judge, T = Technical support staff, CA = Court
Administrator, AFP = Australian Federal Police (forensic officer).
13
I099VICT; I086OSNCA; I095VICS; I091WAM; I082WAM, I087WAAr; I095VICS; I091WAM.
14
I096VICS; I092NSWJA; I095VICS; I090NSWLEC.
15
I096VICS; I092NSWJA; I091WAM; I090NSWLEC; I082WAM.
16
I095VICS; I090NSWLEC; I084OSSL; I083OSSL; I088WAE; I082WAM; I079OSNZE.
17
I095VICS; I084OSSL; I083OSSL; I087WAAr.
18
I087WAAr; I091WAM.
19
I092NSWJA.
20
I042VICCC; I099VICT; I082WAM.
21
1042VICC.
22
I042VICC; I099VICT; I048VICCA; I087OSNZE.
23
I042VICC. Regional judges also reported having used video links to attend conferences and magistratesmeetings and to
connect with others during important community events (I091WAM).
24
I099VICT; I095VICS; I092NSWJA; I091WAM.
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participant in one of three ways. In the first example, a head-and-shoulders shot of the judge would
take up the full screen on one of two monitors (Figure 1) or appear as one half of a split screen with
the other showing a view of the bar table.
25
The level of zoom can vary greatly, with the judge sometimes appearing larger than life but in other
instances much smaller. A second way in which the judge appears on screen is for the
head-and-shoulders shot of the judge to take the form of a small picture-in-picture that accompanies
a wide-angled view of the courtroom or a more narrow shot of the bar table (Figure 2).
A third set-up that is used provides an overview of the whole courtroom, including the judge seated
at the dais, with the option for a picture-in-picture image of the remote participant (which can be kept
or turned off) (Figure 3). The availability of each of these set-ups would be dependent on a range of
factors, including the age of the technology employed (the quality and technical range of the cameras
and monitors), as well as the extent to which technicians at either end are trained or willing to adjust
the settings on a case-by-case basis.
26
Judges presiding over a matter using video links may sit in a full courtroom and appear on screen to
mostly one, but sometimes two or more, remote participants. The remote participant may be a vul-
nerable or expert witness, a defendant or a legal representative. There may be two or more remote
participants in a link. As well as appearing on video link from a seated position behind the judicial
bench in a courtroom, judges reported using video-conferencing facilities from their chambers to
link to a variety of locations, including barristerschambers, prisons or other courtrooms. They
also may preside over matters from empty courtrooms via video link to a courtroom at another loca-
tion where all other participants are present.
In other publications arising from this research, we have reported that the use of video links is
impacting on other aspects of the judicial role, including those that require the judge to make assess-
ments about witness testimony and demeanour (Wallace, 2011; Rowden et al.,2010). For this paper,
however, we have focused primarily on those examples in our data that shed light on the way that the
image and role of the judge are being renegotiated in video-linked court proceedings. What our study
makes evident is that the use of video links in court proceedings disrupts many of the ways in which
judges usually appear to court participants and how they are imagined culturally. This effect on the
Figure 1 The judges image appears on a separate monitor to the lawyers at the bar table.
25
One interviewee, I057VICE, noted another arrangement: one monitor containing a self-view then, on the other monitor,
a small view of the magistrate and another of the body of the court.
26
I048VICT.
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image of the judge has important implications for two particular aspects of the judicial role: their man-
agement of the courtroom and their capacity to embody and project the authority of the court.
6 The judge: managing the court
One of the most fundamental judicial tasks is to control the conduct of court proceedings in order to
achieve a fair trial. For example, judges must ensure that only admissible evidence is put before a jury,
that witnesses understand the significance of giving evidence, are not coached or intimidated and the
questions put to them are within the bounds of what is legally permissible. At a more general level, the
judge must monitor proceedings to ensure that all participants in the courtroom, including the public
gallery, conduct themselves with an appropriate level of respect for each other and for the court.
In reality, while ultimately judges are responsible for achieving a fair trial, they rely on other court
personnel to assist them to fulfil this task. To achieve a smoothly run hearing, judges depend upon the
information provided in a file prepared and kept by court staff and upon the activities of the tipstaff,
court clerks and bench clerks who variously act as the stage managers(Liberman, 2015) of the
courtroom.
Our data suggest that the use of video links adds several additional elements to the judicial task of
managing the courtroom, which require some adaptation by judges to the way they usually conduct pro-
ceedings. At its most basic, judges viewing a courtroom participant over video link now need to take add-
itional steps to confirm that participantsidentity.
27
Judges also now need to satisfy themselves that the
communication link has been properly established, so that the witness can see and hear those in the
Figure 2 Picture-in-picture close-up of head-and-shoulders shot of the judge within a shot of the bar table.
27
I070WAL and I071WAL, who suggested this was particularly important where the lawyer had not sighted their client. A
magistrate suggested that cultural and linguistic factors may cause difficulties for some witnesses, who may have difficulty
comprehending the questions used to verify identification and reply yesto the wrong name (I082WAM).
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courtroom and vice versa,
28
as well as ensure that, in the planning stages of a case, documents or exhibits
that will need to be shown to a witness giving evidence by video link will be available at the remote end.
29
Remote participants, particularly those less familiar with court proceedings, also require more
orientation to the courtroom when appearing by video link. The remote participant may need to
be introduced to those with whom they will be speaking
30
and this may require additional preparation
to tailor the introduction to their particular needs
31
or to the situation. For instance, in sexual-assault
trials involving children, it might be necessary to reassure the remote child witness about who is pre-
sent in the courtroom watching them give evidence.
32
It may also involve providing some orientation
as to the court process
33
to a remote participant who is not familiar with it.
34
6.1 Asserting or sharing control?
Many judges spoke of needing to be, and being perceived to be, actively taking controlof proceedings
where a participant was appearing via video link. This appeared to reflect an underlying concern that
control was more difficult to assert in this situation.
One area of concern related to the administration and enforceability of the oath or affirmation
required of a witness giving evidence by video link. There were concerns that the oath might not
be taken as seriously if not administered face to face
35
and may even not be enforceable.
36
For
these reasons, one judge preferred to administer the oath to a remote witness themselves, rather
Figure 3 Overview of the courtroom with the image of the judge at the dais.
28
I091WAM.
29
I095VICS; I063VICM.
30
I059VICM; I079OSNZE.
31
I063VICM.
32
I059VICM.
33
I059VICM.
34
I091WAM.
35
I091WAM.
36
I046VICM.
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than relying on court staff to do this, as is usual where a witness is physically located in the court-
room.
37
Other judges felt that the oath had more impact, and was more likely to be enforceable,
when it was administered by a court officer present with the witness at the remote end
38
otherwise
they too might opt to swear the remote witness in themselves over the link.
39
Judges were also concerned about being assured, and assuring others, of their ability to exert suf-
ficient control over the remote court environment to ensure that a witness is not intimidated or other-
wise influenced in a way that may affect the truth of their evidence. Our data revealed several
interrelated challenges that the logistics of taking testimony by video link posed for judges in exercis-
ing this responsibility.
Many interviewees, especially judges, expressed concerns over the extent to which the current con-
figuration of most video links enabled judges to discern whether or not a witness was being influenced
by others present at the remote site, given that, unlike the situation in the courtroom, the judge may
not have a clear view of the entire remote witness facility. One judge described the courts vulnerability:
Well thats the other thing, you dont know who else is in the room . For example there might
be an order for witnesses out of Court. You might have three lay witnesses giving remote evi-
dence. Now how do you know that the other lay witnesses are not present listening to the
cross-examination? youre relying on the other end complying ensuring that people are
out of ear shot of the other evidence being given, so that can be a problem as well.
40
During the course of the research, we witnessed and heard of several different strategies that courts had
employed to address this situation. For example, in the criminal courts in Dublin, Ireland, the remote
court officer is required to swear an oath to the court that they are present in their capacity as an offi-
cer of the court and that they will not in any way coerce the witness.
41
The extent to which Australian judges perceived a risk of coercion or influence with video-linked
evidence often depended on the ability to provide them with a more complete picture of the remote
room and its occupants. The technology is usually configured to provide the judge with a separate
camera view of the remote space (Figure 4). Judges usually accepted this overview, coupled with the
view of the witness transmitted to the courtroom, as providing sufficient visual information to assess
the risk of improper influence.
However, if the video-link set-up did not provide good visibility of the whole room or when there
were no court officers or support persons at the remote site, some judges reported enlisting the remote
witness themselves to provide information about any potentially corrupting persons or material in the
remote space.
42
One judge described the way they did this:
If theyre not in that sort of Court environment, if theyre in, like, a DPP [Director of Public
Prosecutions] or a public office, Ill say if theres any, anything interfering with your evidence,
can you let me know that straight away?you know, in case people walk in on their room by
mistake or something like that.
43
6.2 Directing or collaborating?
The task of monitoring of witnesses as they give their testimony also becomes more collaborative in
video-linked encounters. A judge may need to intervene to disallow improper, bullying or harassing
37
I090NSWLEC
38
I091WAM; I046VICM.
39
I091WAM.
40
I046VICM.
41
First authors fieldnotes: 7 July 2009.
42
I091WAM; I062WAD.
43
I062WAD.
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questions (see e.g. No. 42 of 2008, s. 41) or when a witness becomes too distressed to continue giving
evidence. Making such an assessment can require the exercise of a fine judgment, for example, as to
whether a witness appears distressed, is genuinely distressed or whether that distress is the result of
having their credibility successfully challenged. It appears from our data that the limitations of com-
munication over a video link can make it harder for the judge to perceive some aspects of the witnesss
body language that may inform those judgments. For example, a court clerk recalled:
I do recall one matter quite a few years ago that there was a child, she was giving evidence and
she was being asked some questions that she got a bit fired up over . And the Magistrate had
asked me to go into the remote [room]. She had somebody with her. But she looked like to the
Court she looked angry about it, but you went in there she was just shaking.
44
Another remote court officer felt they would often pick up distress signals from a remote witness earl-
ier than a judge would.
45
Some remote court officers who sat with vulnerable child witnesses felt that the judiciary had now
come to rely on them for monitoring the witness. As they expressed it:
I think when we started we were seen as possibly, you know, doing all sorts of evil things
influencing the court process, you know in terms of coaching witnesses or, you know, interfer-
ing in proceedings and I think that [it has] come to be [seen] that we dont coach children and we
dont interfere with the proceedings, that theres a level of comfort of it being out of court
theres a level of comfort that were looking after the needs [of witnesses] and that they dont
have to worry about that in their job.
46
The judge, then, may rely on the remote court officer to gauge the emotional state of the witness and
advise when the witness needs a break. In this way, the judge is sharing the task of monitoring the
witness with the remote court officer something that would not be necessary if the witness were
Figure 4 Example of an overview shot of a remote space, captured by a CCTV camera and visible on a separate display at the
judges bench.
44
I042VICC.
45
I1, I05053VICR.
46
I1, I05053VICR.
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giving evidence in the physical courtroom where the judge could observe their demeanour more
clearly. The level of direct engagement between the witness and the judge is also diminished, as the
encounter becomes more akin to a screen performance (by other parties) rather than a face-to-face
encounter.
6.3 A shared enterprise?
Remote court officers are not the only participants who share responsibility for courtroom manage-
ment with the judge in the video-linked courtroom. In interacting with remote participants over
video links, the judge is dependent on the effective management of the video-link connection itself:
the way links are established and configured and their technical quality monitored. This task is
often carried out by the court clerk or bench clerk, adding an additional cognitive load to that persons
task (Rowden et al.,2010, p. 375). Some judges evidenced an awareness of the need to maintain over-
sight of the process. One commented, when speaking of the way that video links should be set up and
operated: But you need your court officer to be at the gear stick, and you need your judicial officer to
be saying this is how I want it done.
47
In this way, both the judge and the court officer are sharing the responsibility for the configuration
and operation of the video link, with the judge taking on something of a new role, akin to that of the
directorof the video link.
6.4 Judge as independent, but dependent on others?
The data described above demonstrate several ways in which many aspects of the judges role as the key
manager of courtroom proceedings are impacted by the use of video links. Important functions that
need to be carried out have become dependent on the operation and configuration of the technology
or reliant on the judgment of others, so that responsibility is shared. These factors in some way blur
and confront the cultural image of the independent judge wielding absolute control over their court-
room, although, in fact, it is possibly only drawing attention to the fact that controlling the courtroom,
in many ways, has always been a collaborative effort. However, the exercise of judicial control in the
distributed court environment is dependent on a greater range of factors, including the technology, the
affordances of the courtroom, as well of those of the remote environments, and the talents and energy
of the court personnel stationed in either place.
Our data also revealed that the way in which the image of the judge is portrayed to other court
participants in the video-linked encounter can be at odds with the cultural image of the judge to
the extent that it influences the capacity, or perceived capacity, of the judge to imbue the authority
of the court. This is often made evident through the behaviour of other court participants. It is to
these examples that we now turn.
7 The judge: imbuing authority
Managing court proceedings to ensure they are conducted fairly is one important way that judges pro-
mote community acceptance of the court as a legitimate source of authority. But it is not the only way
in which authority is generated. As Dovey asserts, authority becomes stabilized and legitimated
through spatial rituals and the architectural framing of them(2010, p. 125). The space of the trial
has long been used to create an authorised space for law and the raised judicial dais has remained
an important long-standing symbol within that tradition (Graham, 2003). From early makeshift fur-
nishings in the fifteenth-century courtroom to modernist and post-modern courthouse schemes that
tend towards flattening the courtroom interior, the raised dais has prevailed (Mulcahy, 2011). Other
architectural cues such as the judicial canopy, or the coat of arms, frame the judge in a regal majesty
and hearken back to justice dispensed by the monarch under a tree, lending legitimacy and authority
47
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(Jacob, 1995).
48
If architecture sets the scene, court rituals punctuate the message and reinforce the
point. The well-worn characterisation of the court as a theatre (Ball, 197576), evidenced by the reten-
tion of arcane costume, use of heightened language and long-standing court rituals, such as standing
when the judge enters, and bowing to the court on departure all contribute to the generation and
maintenance of the courts authority. They also combine to cue particular expected civic modes of
address as well as respectful and polite behaviour by courtroom participants. The fact that so many
of the rituals and so many of the longest-standing spatial features of the court centre on the judge
emphasises the central symbolic function of the judicial role as embodying the independent authority
of the court.
Challenges to the authority of the court can take a variety of forms and be overt or subtle. Court
participants might choose to ignore rules and protocols, and behave disruptively or impolitely towards
authority figures such as the judge, court orderlies or other court staff. The judicial power to punish
behaviour that transgresses these rules as contempt of court is one measure for maintaining and
restoring authority. However, the power of the cultural image of the judge is evidenced by the fact
that judicial presence alone may also serve to deter such challenges.
7.1 An alternative view
It appears from our data that the use of video links can make it more difficult for the judge to both
embody and maintain the authority of the court. This arises, in part, from the impact of the video link
on the image of the judge and also on the rituals that serve to reinforce that authority. We argue that
the introduction of television screens in the courtroom and the way in which the video links alter the
image of the judge challenge the judges performance of authority in subtle but complex ways.
The work of Clover (1998) and Moran (2016) reminds us that framing and camera angles have
important implications for how the camera presents the judge, as well as how it positions the viewer
in relation to the judge. We found that the way that the framing and angles are used in court video
links often creates views of courtroom participants, including the judge, that are different to those
available in the courtroom. In many set-ups we visited, this results in a somewhat imperfect view
of the judge for the remote participant that impacts adversely on the judges ability to establish
their authority, both literally and figuratively. For example, it was common for the camera that
takes the judges image to the remote room to be located above one of the monitors in the courtroom,
often the monitor above the witness stand, thus positioning the camera above the eye line of the judge
(see Figures 5 and 6). As a result, the image of the judge provided to the remote participant completely
inverses a well-established spatial cue of many courtroom designs. Rather than the judge occupying
the highest position in the room, the eyes of the remote participant effectively look down on the
judge. In another example, one technology officer explained that, in that jurisdiction, when a judge
is being linked to a regional court to preside, the judge generally appears as a small picture-in-picture
on the larger screen available in the courtroom.
49
Interviewees felt that it was important that the image of the court and the judge that was shown to
the remote participant on video link was as realistic as possible, to ensure an understanding by the
remote participant of the seriousness of the matter. One judge commented:
obviously the more a video link can have the effect of a witness seeing that there is a Court
in operation a presiding Judge or Magistrate and barristers over at the bar table I think it
gives a much better feel for a Court I think theyre acquainted more with the seriousness
48
Mulcahy (2011, p. 170) notes that the Civil Procedure Rules in the UK prescribe that, if practicable, the royal coat of
arms should be placed above the judges seat when the judge is appearing on video link from a location other than a court-
room, presumably so that it is visible behind the judge to the remote participant.
49
Largely, it appeared that, because those in charge of the link were so nervous of something going wrong that they were
reluctant to alter the setting to correct the image and make the judge appear full-screen (I048VICCA).
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of the evidence that theyre giving I think its important to impress on the person the
solemnity of the occasion and the importance of their evidence.
50
Another judge was of the view that, in the absence of the environment of the courtroom, there was an
onus on the judge to look for other means to reinforce their authority:
[W]e do run these on-site hearings, or we take some evidence on site you may be on site but
you still have to run it as a court hearing . You should be able to be authoritative in that situ-
ation by your presence and your words regardless of the court trappings that situation is no
different to when youve got the witness on the videoconference. You take control of it and say
this is whats going to happen”…weve just never had any issue with that. People are very
obedient once you actually do that, show that youre in control.
51
When the usual court trappingsare in short supply, something else needs to be invoked to ensure
judicial authority, to signify judicial presenceand to ensure that the fact that the court is in session
is clearly recognisable by those in attendance. This interviewee is suggesting that this can be achieved
by an appropriate use of language and demeanour on the part of the judge and an attempt to actively
take control in the new environment.
7.2 Conveying authority
In the absence of additional measures, the image of the judge and the courtroom on the video link
alone may not always adequately convey the authority of the court and this can affect proceedings.
As the authors have noted elsewhere, there was frequent mention in interviews of a tendency by
some remote participants to exhibit less inhibited behaviour when participating in court proceedings
via video link (Rowden et al.,2010). Possibly this is due to the relative informality of proceedings at the
remote end of the video link that may diminish the availability of the behavioural cues of the
Figure 5 Image of the judge produced by a camera sitting slightly above the judge.
50
I046VICM.
51
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courtroom (Rowden et al.,2010; Rowden, 2011). The impact of this disparity, however, seemed to dif-
fer for each kind of participant.
Overall, stakeholders did not feel that children and other vulnerable witnesses giving evidence by
video link lacked an appreciation of the seriousness of the matter and the authority of the court.
Interviewees reported that remote vulnerable and child witnesses were well aware of the fact that
they were attending court via video link. As one remote court officer described, the formality of
the proceedings, the language and the ritual of the judicial robes were all important in informing
that understanding:
The whole the question and answer routine is very formal. The Judges are wearing gowns and even
if there are people in relativelyordinary clothes, theway they present, the language that they use is so
alien to these kids in the first place that, theyare immediately its like, you know, suddenly being in
front of the principal at school as they go into that [remote] room they will be serious.
52
Another remote court officer reported: all witnesses are very aware of whats going on. Most of them
are frightened to death. And many of them are shaking I think they all take it very seriously .
Even the children.
53
Court support officers who sat with these participants argued overwhelmingly that, despite sitting
in a non-descript room, away from the imposing architecture of the courthouse and the physical pres-
ence of the judge, children and vulnerable adults giving evidence remotely understood that they were
attending a courtroom and that the matter was serious. However, those commenting on the behaviour
of some defendants appearing via video link did not report the same opinions.
In sentencing a defendant, and in some cases denying their liberty, a judge acts on behalf of the
state and the community in whose name they uphold certain values and shared beliefs about what
Figure 6 Sketch of cameras in the courtroom picking up the image of the judge at the bench. If the courtroom has multiple
screens, the judge needs to be aware of which screen to look at, otherwise the witness would see a side view of their face.
52
I3, I050VICRI054VICR.
53
I004WAR.
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is acceptable behaviour. It is perhaps unsurprising, then, that, in the one act in which the judge brings
to bear on an individual the full authority of the court and the full force of the state, the challenges that
video link poses for the judge are at their most acute. As one judge described:
[A]lmost every time Ive done that is, it seems that the person, if theyre on the other end of a
video screen, are more likely to ark up and swear, shout, complain about how theyre being dealt
with whereas they tend not to do that if theyre in court and youve got them face to face. So it
seems they feel like there is a greater liberty to go ballistic on the other end of a video camera than
if theyre in court.
54
This judge also noted that, in such instances, the technology could be used to silence those participants
who are perceived to be misbehavingby switching off the microphone. Others confirmed that this
was a common response by judges when faced with a fractious defendant appearing by video link.
55
However, the same judge noted that such an overt use of the technology in this way was not ideal in
terms of a process of justice.
56
The discomfort they expressed about, in effect, silencing the defendant
through the mute button has resonance with the example of the Bobby Seale trial in the US in the
1960s where the defendant was gagged and bound in the courtroom (Cover, 1986, p. 1607, n. 17).
Such a response of the courts to a violent outburst by a disgruntled remote defendant receiving a sen-
tencing verdict may impact upon perceptions of due process and therefore has implications for the
legitimacy and authority of the court.
It is important to note that not all judges interviewed reported experiencing difficulties maintaining
the authority of the court when sentencing via video link. One reported that:
I think maybe because they see you, and they see you robed, and they see youre in an obvious
courtroom setting they tend to behave as if they were present in the courtroom. And Ive never
had any difficulty in dealing with people. I suppose if there was going to be a person who was
going to be fractious, or you had any sort of advance warning, you might be careful. But no,
generally speaking, no. No problem whatsoever.
57
Unlike the judge quoted earlier, this judge is from a higher court and would have appeared robed from
a more elaborately furnished courtroom. The former, a magistrate, would appear unrobed from a more
prosaic courtroom location. This suggests that the ability for the encounter to provide behavioural cues
from the way that the judge is framed, in terms of dress and background, may be an important factor
in conveying and maintaining judicial authority when sentencing proceedings are conducted by video
link. A sentencing judge who is framed as sitting in a more neutral space, on their own, is perhaps
more likely to be perceived by the remote defendant as an individual rather than as an authority figure
whose role is to deliver that verdict as the designated representative of the community.
7.3 Engaging the community
Several interviewees spoke of the symbolic importance of the court in expressing community-held
values values that were somehow expressed and locatable by the presence of the courtroom and
courthouse and the performance of the judge. Other judges spoke of how the very presence of the
courts affirmed the presence of a community, of a society, by reflecting its values back to itself.
58
54
I091WAM. Similar concerns about the effects of remote participation by defendants over video link on defendants
in-court behaviour have been expressed recently by practitioners in the UK (Gibbs, 2017).
55
I070WAL; I071WAL.
56
I091WAM.
57
I073WAS. A remote room support officer who oversaw video links in prisons suggested that, in their view, the type of
person who was going to be difficult in the remote room would most likely also behave that way in the courtroom
(I093VICR).
58
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The invocation of these values seemed most acute at the point of judgment, although there were some
perceived differences in the relative importance of this between criminal and most civil cases.
Judges seemed to have fewer issues using video link to deliver judgments in civil cases, most likely
because these cases are often simply resolving a dispute between two private parties. While one inter-
viewee expressed the view that it was an odd feeling for a judgment to be delivered by video link, essen-
tially to an empty courtroom,
59
interviewees were less concerned about the possible diminution of the
authority of the court when a decision in a civil case was delivered by video link. As one interviewee
expressed, it is the decision itself, rather than the image of the person delivering it, that is more
important:
I dont have any great difficulty with all that [delivering a judgment via video link], its really not
so much important as to what I look like or the view that people have of me, its really the words
coming through so I dont think its as quite as important.
60
However, it may be different in particularly fraught civil cases that affect a group of the public, such as
the findings of coronial inquiries involving mass disasters or in class actions. One judge emphasised
the importance of providing an opportunity for an affected community to come together to experience
the emotions connected with the delivery of a judgment in such circumstances:
they are really hugely charged environments but people can cope and I think it is valuable
also to a large degree for them to experience the suffering and anguish together to understand
that its not a mechanical process, its not some arbitrary cold-blooded process.
The use of the terms arbitraryand cold-bloodedsuggest that, for this stakeholder, removing the par-
ticipant from the communal space of the courtroom speaks not only to feelings of disconnection, but
also to damaging perceptions of legitimacy.
However, a sentencing decision is delivered not only to the defendant, but also to the community
that the judge serves. Those proceedings are traditionally conducted in public and may include the
victim, or victims, and family and supporters of both the victim and the defendant, as well as repre-
sentatives of the media. Reservations about sentencing hearings being conducted by video link were
not confined to concerns about the impact on the defendant, but also, as one interviewee described,
about the symbolism of sentencing and what it meant for the community.
61
As noted above, while we observed considerable variation between courts in the way the video links
were set up and operated, generally speaking, it appears that the image of a judge delivering a sentence
on video link is conveyed to the remote end as a head-and-shoulders shot seated behind the judicial
dais, in a full-screen view.
62
While some Australian courts do film footage of the judge delivering sig-
nificant sentencing decisions for dissemination on the courts website, this appears to be done outside
of the court video-conferencing system and, in most cases, the media are only provided with a tran-
script or audio file of the sentencing remarks.
63
59
I092NSWJA.
60
I046VICM.
61
I079OSNZE.
62
When sentencing to another courtroom, the judge has a view of the remote defendant, together with any legal repre-
sentative, and a view of the public gallery at the remote end. When defendants are sentenced via prison video link, the
judge generally sentences from a courtroom where the legal representatives and the public are also present and that court-
room is provided with a full-screen image of the defendant that may, depending, on the set-up, be visible at one or more
points in the courtroom. The public, for this purpose, includes representatives of the media, who are the primary source
for conveying judicial sentencing decisions to the broader public.
63
See e.g. Supreme Court of Victoria Judgments and Sentences. Available at https://www.supremecourt.vic.gov.au/law-
and-practice/judgments-and-sentences (accessed 24 July 2018). This might be seen as what Thompson (2005) terms a
new form of visibilityfor judges, as their delivery of a sentence is now visible to a wider audience who do not share a com-
mon spatial-temporal framework.
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That the image of the judge as someone engaged with the community should speak to their set of values
was seen as important for the legitimacyof the sentencing process. One judge commented that they would
directly involve community members during sentencing, particularly when sentencing children:
I dont use the video link where I want [not just] the child, the family but the community to
all have an impression [of] the law, I go there . The video link facilities dont really cater for
that sense of community. Whereas if youre there and youre in the courtroom, the courtroom
can be packed with community. So where I think theres a case that goes to the child, to the fam-
ily, to the community, [and] youre wanting to make a point, a very serious point, I dont use
video links. I go there so you can basically interact with as many people in the community as
possible all at the one time, which is not possible on the video link.
64
Similarly, another interviewee referred to the difference between setting limits through sentencing in
the context of a community of people gathered in one location vs. the attempt to set those limits when
the transgressing person is isolated:
itsabout saying to people there are limits, there are communitylimits there are thingsthat there
are bounds beyond which you really should not go. And you can say that to a person in a small room
whos looking into a video screen and have potentially some impact I suppose. But if youve got
somebody sitting in the Court surrounded by other people where youre saying that, then it does
appear to be more of a reflection of what people in a community think about something.
65
To ensure transparency and accountability, open public hearings are necessary for proper engagement
between judges and the communities that they serve. The law needs to be able to be located not just by
the figure and presence of the judge appearing on screen, but also by the ability to locate the place to
see justice being dispensed. Unsurprisingly, then, the prospect of several parties appearing remotely at
once caused concerns for some interviewees, as one queried:
so, you know, its not just audio visual links with witnesses and defendants but potentially coun-
sel and judges especially there you ask wheres the court? You need to, sort of, in a sense,
define where the court is or at least actually have a system that identifies where people can go to
see if proceedings are public.
66
For this interviewee, this place needed to be in a defined location so that a community could know
where to go in order to view proceedings a feature deemed critical to the principle of open justice.
The image of the judge is an important part of those proceedings and should, therefore, be visible,
legible and accessible. However, our findings suggest that increasing use of video-conferencing tech-
nologies requires more overt attention to the ways in which the image of the judge is crafted.
This new advertence to the ways in which the judges image is being constructed through camera
and screen requires the attention more commonly associated with film production (Mulcahy, 2008).
Courts should pay attention, as film directors do, to the background to the subject, the costume of the
subject, the presence or absence of symbolic markers of justice (such as the coat of arms), as well as the
impact of camera angles, close-ups or long-shots, views from above, below or from the side (Moran,
2016; Clover, 1998). Courts could develop more sophisticated protocols, as they have done in the UK
in regard to filming judgment summaries (Moran, 2016), that set minimum standards for a video-
linked image of a judge.
67
64
I065WACC.
65
I076WAM.
66
I079ONZE.
67
For an example of suggested guidelines, see Rowden et al. (2013).
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8 Judge as collaborator
In the studies referred to earlier, technology is presented as a new insertion into an assemblage of parts a
network of human and non-human elements (Latour, 2005)ofsocial, material, linguistic and non-
linguistic agencies(Licoppe and Dumoulin, 2010, p. 229) that shape both activities and meaning-making.
These studies also point to the ways in which the construction of justice, authority and legitimacy in the
courtroom is not fixed, but contingent, performative and in the making (Rowden, 2011). Our study lends
further weight to their findings and demonstrates how cultural ideations of the judge and how they per-
form their role are being challenged in the new networkedparadigm of the distributed courtroom.
Lanzara and Patriotta (2001) found that judges needed to actively engage with designing new practices
to adjust to the changes brought by the introduction of a new technology into their workplace.
Similarly, the examples we cite from our study highlight the additional workload that successful video
links entail for judges, which may require them to give more conscious attention to particular tasks.
These examples from our data are also often noteworthy for the degree of anxiety expressed by
judges and others over a perceived loss of judicial control of the entire courtroom environment and
the effect of video links on the capacity of the judge to embody and project the authority of the
court. The latter reflects a particular level of concern as to how the authority of the court can be
impressed upon a remote participant appearing via video link. Of course, the ability to control pro-
ceedings and the capacity to project authority are somewhat interrelated.
In the physical courtroom, the environment provides behavioural cues through spatial syntax and
symbolic imagery that help to impress upon all courtroom participants the serious nature of the mat-
ter, their tasks and their importance for the proceeding. What appears from our data is that, in its
absence, this task then needs to be reassigned to other parts of the heterogeneous network (Latour,
2005) of materials, rituals and personnel involved in a court proceeding (Rowden, 2011;2013). Our
data demonstrate that, in many instances, this is already occurring, such as in the case of the personal
administration of the oath by the judge themselves or by the person who is present with the witness in
the remote space, as well as incorporation of virtual orientations to the courtroom conducted over the
video link. It is evident that judges are often not aware of the ways in which they are adapting their
performance to the new medium. However, there were several instances revealed in our study that sug-
gest judges could make more explicit efforts to compensate for the absence of the usual affordances
and cues provided by the physical courtroom in order to assist the remote participant to effectively
enterand remain in the court space. Our findings also suggest that the construction and maintenance
of the cultural image of the judge as the embodiment of authority require careful calibration in
concert with the efforts of court staff and lawyers in the video-linked court environment.
In terms of courtroom management, the judges access to the remote space is dependent on the
court staff who initiate and configure the video link. Some judges appear to be reassured in their con-
trol of the remote space by utilising the shot of the overview camera, where available, to get a better
picture of the extent of the room and any potential influences it could contain. Some are forced instead
to rely on the help of others in the remote space to verify that the testimony is not being tampered with
or affected or, in their absence, to engage directly with the witness about that issue and rely upon their
honesty. Similarly, where vulnerable witnesses give evidence remotely, judges appear, to some extent,
to be outsourcingto the remote court support officer the responsibility for monitoring the witnesss
performance and emotional state.
In many ways, these acts of knowledge-sharing and reliance become open acknowledgements of the
networked nature of judicial controlbeing performed in courts, whether video-linked or not. Here
again, our findings conform to Licoppe and Dumoulin, as they explain that the judge in their
study was more reliant on the strategic work of others in the courtroom to reinterpret events and
restore judicial authority in the event of a failed judicial speech act (summoning a witness and nobody
arriving) during a video-linked encounter (2010, pp. 185186). Furthermore, a more overt acknowl-
edgement of the way courtroom management is networked in the distributed court challenges our cul-
tural conception of the judge as being the one person solely in charge of the courtroom. In the
International Journal of Law in Context 521
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distributed court, control is more obviously exercised through others who variously manage and con-
figure the technology, verify the oath and support and monitor the witness.
Similarly, the projection of judicial authority becomes a collaborative construction, dependent on
the technology and tasks that are shared with others. Our findings suggest that, in the video-linked
courtroom, the framing of the judge, the choice of camera shot and the way that the judge is presented
assume considerable importance in reinforcing judicial authority. Witnesses and defendants may be
most likely to perceive and respect that authority when the image they receive places the judge in a
context that is formal and authoritative and provides appropriate cues, such as by way of language,
dress and backdrop, to prompt them to respond appropriately.
9 Conclusions
Our findings suggest that achieving distributed court encounters that deliver an image of the judge that
is congruent with the judicial role in the adversarial court system may require a refinement in design,
where greater attention is paid to the configuration of the technology and the overall spatial design. It
may also require increased attention to the skills of those managing the technology, who are, in a
sense, directing the production of on-screen judicial images. They also suggest the need for the
judge to take more active steps to exert control and authority in a video-linked court proceeding
and to pay closer attention to elements of their performance and how it may impact upon perceptions
of their authority and their role. It is also clear that judges need to call upon others, in both the court-
room and the remote space, who have the skills and the capacity to support them in crafting that
image. Other factors that may be important to consider will include the degree of familiarity that vari-
ous court participants may have of video-mediated communication and the court process generally.
For example, a novice participant may require a greater degree of orientation and support than a
repeat player.
It has been observed elsewhere that it is somewhat paradoxical that the increased use of video links,
associated as they are with more distant or impersonal communication, has occurred at time when
there has also been a strong move towards more engaged styles of judging (Wallace et al., 2017).
The trend towards therapeutic styles of judging has also resulted in a change in the nature of judicial
work, to the extent that judges working in problem-solving courts typically view themselves as work-
ing as part of a team, which draws on the skills of other professionals, each managing the specific
aspects of an individuals programme (King et al., 2014). This suggests that the image of the judge
may be one that is continuing to evolve and the challenge for courts in the future will be to ensure
that, in whatever form it is conveyed, the image is congruent with the nature of the role and its respon-
sibilities. In its most positive light, the use of video links might prompt new discussions about what the
image of the judge should be.
Acknowledgements. The authors are grateful to the reviewers who provided very helpful feedback on this paper. It reports
on data collected for the Gateways to Justice Project funded by the Australian Research Council Linkage Grant (Project
number: LP0776248) and led by Professor David Tait (Western Sydney University). All images © Emma Rowden.
Participants in all photographs within this article are members of the research team.
References
Australian Institute for Judicial Administration (AIJA) (2015) Suggested Criteria for Judicial Appointments. Melbourne:
AIJA. Available at http://www.aija.org.au/wp-content/uploads/2017/10/Suggested-Criteria-for-Judicial-Appointments-
AIJA-2015.pdf (accessed 20 July 2018).
Ball MS (19756) The plays the thing: an unscientific reflection on courts under the rubric of theater. Stanford Law Review
28,81116.
Baum L (2005) Judges and Their Audiences: A Perspective on Judicial Behavior. Princeton: Princeton University Press.
Cashmore J and De Haas N (1992) The Use of Closed-Circuit Television for Child Witnesses in the ACT. Sydney: Australian
Law Reform Commission.
Clover CJ (1998) Movie juries. DePaul Law Review 48, 389405.
522 Emma Rowden and Anne Wallace
https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1744552318000216
Downloaded from https://www.cambridge.org/core. IP address: 158.46.147.156, on 05 Jun 2019 at 04:39:02, subject to the Cambridge Core terms of use, available at
Cover RM (1986) Violence and the word. The Yale Law Journal 95, 16011629.
Davies GM and Noon E (1991) An Evaluation of the Live Link for Child Witnesses. London: Home Office.
De Landa M (2006) A New Philosophy of Society: Assemblage Theory and Social Complexity. London/New York: Continuum.
Diamond SS et al.(2010) Efficiency and cost: the impact of videoconferencing hearings on bail decisions. Journal of
Criminal Law and Criminology 100, 869902.
Dovey K (2010) Becoming Places. London/New York: Routledge.
Federman M (2006) On the media effects of immigration and refugee board hearings via videoconference. Journal of Refugee
Studies 19, 433452.
Finkelstein R (2011) The adversarial system and the search for truth. Monash Law Review 37, 135144.
Gibbs P (2017) Defendants on Video Conveyor Belt Justice or a Revolution in Access? London: Transform Justice. Available
at http://www.transformjustice.org.uk/wp-content/uploads/2017/10/TJ_Disconnected.pdf (accessed 8 February 2018).
Graham C (2003) Ordering Law: The Architectural and Social History of the English Law Court to 1914. Burlington: Ashgate.
Haas A (200607) Videoconferencing in immigration proceedings. Pierce Law Review 5,5990.
Jacob R (1995) The historical development of courthouse architecture. Zodiac 14,3043.
Kiefel S (2013) On Being a Judge. Canberrra: High Court of Australia. Available at http://www.hcourt.gov.au/assets/publica-
tions/speeches/current-justices/kiefelj/kiefelj-2013-01-15.pdf (accessed 8 February 2018).
King M et al.(2014) Non-Adversarial Justic, 2nd edn. Annandale: Federation Press.
Lanzara GF and Patriotta G (2001) Technology and the courtroom: an inquiry into knowledge making in organisations.
Journal of Management Studies 38, 943971.
Lather PA (1991) Getting Smart: Feminist Research and Pedagogy with/in the Postmodern. New York: Routledge.
Latour B (2005) Reassembling the Social: An Introduction to Actor-Network-Theory. Oxford/New York: Oxford University
Press.
Liberman D (2015) Exploring the Social World of Crown Court Clerks from the 1970s Onwards, presentation at the LSE Law,
PhD lunchtime seminar, Hoborn, London, 9 December 2015.
Licoppe C and Dumoulin L (2010) The curious caseof an unspoken opening speech act: a video-ethnography of the use of
video communication in courtroom activities. Research on Language & Social Interaction 43, 211231.
Mack KM and Roach Anleu SL (2010) Performing impartiality: judicial demeanour and legitimacy. Law and Social
Inquiry-Journal of the American Bar Foundation 35, 137173.
McKay C (2018) Video links from prison: court appearancewithin carceral space. Law, Culture and the Humanities 14,
242262.
Moran LJ (2013) Managing the news image of the judiciary: the role of judicial press officers. Oñati Socio-legal Series 4, 799
818.
Moran LJ (2016) Visible justice: YouTube and the UK Supreme Court. Annual Review of Interdisciplinary Justice Research 5,
223263.
Mulcahy L (2008) The unbearable lightness of being? Shifts towards the virtual trial. Journal of Law & Society 35, 464489.
Mulcahy L (2011) Legal Architecture: Design, Due Process and the Place of Law. London: Routledge.
No. 42 of 2008 Evidence Act 2008 Authorised Version No 022. Victoria: Victorian Legislation and Parliamentary Documents.
Available at http://www.legislation.vic.gov.au/ (accessed 20 July 2018).
Poulin AB (2004) Criminal justice and video conferencing technology: the remote defendant. Tulane Law Review 78, 1089
1167.
Roach Anleu S and Mack K (2015) Performing authority: communicating judicial decisions in lower criminal courts. Journal
of Sociology 51, 10521069.
Roach Anleu S and Mack K (2017) Performing Judicial Authority in the Lower Courts. London: Palgrave Macmillan.
Rowden E (2011) Remote participation and the distributed court: an approach to court architecture in the age of video-
mediated communications, PhD thesis, University of Melbourne, Melbourne.
Rowden E (2013) Virtual courts and putting summaryback into summary justice: merely brief, or unjust? In Simon J,
Temple N and Tobe R (eds), Architecture and Justice: Judicial Matters in the Public Realm. Farnham: Ashgate, pp.
114124.
Rowden E et al.(2013) Gateways to Justice: Design and Operational Guidelines for Remote Participation in Court Proceedings.
Sydney: University of Western Sydney. Available at https://researchdirect.westernsydney.edu.au/islandora/object/
uws:15505 (accessed 20 July 2018).
Rowden E, Wallace A and Goodman-Delahunty J (2010) Sentencing by videolink up in the air? Criminal Law Journal 34,
363384.
Shaman JM (1996) The impartial judge: detachment or passion? DePaul Law Review 45, 605632.
Taylor N and Joudo J (2005) The Impact of Pre-Recorded Video and Closed Circuit Television Testimony by Adult Sexual
Assault Complainants on Jury Decision-Making: An Experimental Study (No. 68). Canberra: Australian Institute of
Criminology.
Thompson JB (2005) The new visibility. Theory, Culture and Society 22,3151.
Tyler T (2003) Procedural justice, legitimacy and the effective rule of law. Crime and Justice 30, 283357.
International Journal of Law in Context 523
https://www.cambridge.org/core/terms. https://doi.org/10.1017/S1744552318000216
Downloaded from https://www.cambridge.org/core. IP address: 158.46.147.156, on 05 Jun 2019 at 04:39:02, subject to the Cambridge Core terms of use, available at
Wallace A (2011) Justice and the virtualexpert: using remote witness technology to take forensic evidence, PhD thesis,
University of Sydney, Sydney.
Wallace A (2013) Using videolink to take forensic evidence lessons from an Australian case study. International Journal of
Evidence and Proof 17, 221249.
Wallace A, Mack K and Roach Anleu S (2012) Caseload allocation and special judicial skills: finding the right judge?
International Journal For Court Administration 4,6881.
Wallace A, Roach Anleu S and Mack K (2017) Judicial work and AV use: perceptions from Australian Courts. Onati
Socio-Legal Series 7, 691716.
Cite this article: Rowden E, Wallace A (2018). Remote judging: the impact of video links on the image and the role of the
judge. International Journal of Law in Context 14, 504524. https://doi.org/10.1017/S1744552318000216
524 Emma Rowden and Anne Wallace
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