Article

Criminal Justice and Videoconferencing Technology: The Remote Defendant

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Abstract

This Article addresses the increasing use of videoconferencing to avoid bringing criminal defendants to court for certain proceedings. Unfortunately, courts use videoconferencing technology to bring criminal defendants to court without carefully evaluating the impact of that practice on the quality of justice. This Article evaluates the implications of using technology to have defendants appear through videoconferencing and argues against the practice. It brings to bear the literature from other fields, particularly communications and social psychology. That body of literature suggests that videoconferencing may have a negative impact on the way the defendant is perceived by those in court as well as the representation the defendant receives and the way in which the defendant experiences the criminal justice system. The author argues that courts should not extend their reliance on videoconferencing further and instead must undertake studies to explore the impact of the technology in criminal proceedings. In addition, the author advocates that the courts take steps to ameliorate the negative impact of videoconferencing through design of videoconferencing systems and training of those who participate in videoconference proceedings. Finally, the author suggests that courts with videoconferencing equipment make it available for communication between incarcerated defendants and their attorneys.

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... For example, defense attorneys and other commentators have expressed concern that having a defendant appear for a proceeding from a remote location, rather than in the courtroom, will diminish his or her sense of the seriousness of the proceedings and the justice he or she is receiving. 2 In turn, they argue, this diminished sense of the proceedings could affect the defendant's behavior negatively and thus compromise his or her right to due process (Poulin 2004; Thaxton 1993). Federal courtrooms are designed to convey a sense of seriousness and dignity. ...
... For example, research by Dan Lassiter and his colleagues suggests that when a camera is focused only a defendant during a videotaped interrogation, factfinders who view the videotape are more likely to believe that a defendant's confession was voluntary and to find him guilty than if the camera focuses on the interrogator or on both the defendant and the interrogator (e.g., Lassiter & Irvine 1986). Thus, the camera angle, which would likely be chosen by a technician and not by the court or an attorney (Poulin 2004), could influence how the judge perceives the defendant. Regardless of the camera angle used, if the defendant is nervous because of the presence of the camera focused on him, his behavior may reflect that nervousness, and such behavior could negatively affect the judge's perceptions of his credibility (Feldman & Chesley 1984). ...
... If the defense attorney does not travel to the defendant's location, critics argue that she might be unable to fully grasp the defendant's view of the case and to build a relationship of trust with him. 7 Indeed, an unsophisticated defendant might have difficulty understanding the role of his or her attorney, particularly if the attorney appears on the video screen to be seated near the prosecutor and judge (Poulin 2004; Thaxton 1993). Similarly, if the defendant is in a different location from defense counsel, he or she arguably will have a harder time communicating with counsel or even signaling a desire to communicate with her. ...
Article
State and federal courts are increasingly using videoconferencing to hold proceedings in criminal cases, including first appearances and arraignments. However, little systematic information is available about the extent of its use, the proceedings for which it is used, how it is implemented, and, most importantly, whether videoconferencing affects the behavior or perceptions of participants in a way that violates a defendant's fundamental rights. In this article we review the legal and empirical issues raised by the use of videoconferencing in criminal cases and describe empirical research that could and, we argue, should, inform policy decisions concerning its use.
... encing are that it enhances safety and security by eliminating risks associated with prisoner transport and improves staff's responses to emergencies (Khalifa et al., 2008;Magaletta, Ax, et al., 1998;National Institute of Justice, 2002;Poulin, 2004). Finally, this technology increases access to quality medical, mental health, and forensic services in remote locations which might otherwise go underserved (Khalifa et al., 2008;Manfredi, Shupe, & Batki, 2005;Miller et al., 2008). ...
... Consequently, little is known regarding how this technology may impact attorney-client relational dynamics. Some legal scholars have suggested that using videoconferencing to facilitate attorney-client consultations may undermine a client's trust or confidence in counsel, thus weakening an already tenuous dynamic (Bellone, 2013;Poulin, 2004). Alternatively, research findings from other professional domains (e.g., correctional telehealth and telemental health) would suggest that services delivered via videoconference are likely to be viewed as equivalent to in-person services (Antonacci et al., 2008;Batastini, King, Morgan, & McDaniel, 2015;Brodey, Claypoole, Motto, Arias, & Goss, 2000;Khalifa et al., 2008;Leonard, 2004;Magaletta et al., 1998;Magaletta, Fagan, & Peyrot, 2000;Morgan, Patrick, & Magaletta, 2008;Nelson, Zaylor, & Cook, 2004;Zaylor, Nelson, & Cook, 2001). ...
... The majority of clients surveyed gave positive ratings of audio and visual quality, believed videoconference services were equivalent or superior to services delivered in person, reported they would be likely to participate in videoconference consultations again, and indicated they would be inclined to recommend videoconference consultations to their peers. These findings may alleviate concerns raised by some legal scholars that using videoconferencing to facilitate attorney-client interactions undermines the attorney-client working relationship (Bellone, 2013;Poulin, 2004). Based on the preliminary results of this study, defense attorneys may feel more confident that their clients are comfortable and willing to engage with counsel via videoconference. ...
Article
The current study compared criminal defendants’ perceptions of attorney-client working relationship variables across in-person and videoconferencing consultation modalities. Defendants participated in pre-trial consultations with their defense attorneys either inperson (n = 22) or via videoconference (n = 21) and then completed a series of measures assessing their perceptions of working alliance, trust, procedural fairness, and satisfaction with attorney services. Results of a series of multivariate analyses of variance (MANOVA) procedures, independent samples t-tests, and Mann-Whitney U tests revealed no significant between-group differences in defendants’ ratings of each of these variables. In addition, estimates of effect size indicated generally small experimental effects. Examination of descriptive and frequency statistics indicated defendants provided positive ratings of videoconference consultations. These findings are considered to be preliminary given the methodological limitations of this study; however, results suggested that core components of the attorney-client working relationship were not significantly altered with the use of videoconferencing. Furthermore, results suggested defendants found videoconferencing to be an acceptable medium for facilitating attorney-client pre-trial consultations. These results are consistent with research findings regarding the acceptability of correctional telehealth and telemental health services, and extend this research to the domain of attorney-client consultations. Implications for legal practice and policy are discussed, as is the need for further research in this area.
... Videoconferencing has been criticized for its potential to "greatly change the dynamic of a [court] proceeding," (Kuchler and O'Toole 2008, 210). It depersonalizes interactions (Hartmus 1996) and impedes defense attorneys' ability to zealously represent clients (Poulin 2003). Although Licoppe and Verdier (2013) find videoconferencing affords increased opportunities for participation, Poulin (2003) finds videoconferencing impair defendants' audio and visual perceptions and deprives them of spontaneous interjections, opportunities to address the court, and the ability to seek clarification. ...
... It depersonalizes interactions (Hartmus 1996) and impedes defense attorneys' ability to zealously represent clients (Poulin 2003). Although Licoppe and Verdier (2013) find videoconferencing affords increased opportunities for participation, Poulin (2003) finds videoconferencing impair defendants' audio and visual perceptions and deprives them of spontaneous interjections, opportunities to address the court, and the ability to seek clarification. Poulin (2003) also argues videoconferencing may negatively influence courts' perspectives, defendants' experiences, and process fairness. ...
... Although Licoppe and Verdier (2013) find videoconferencing affords increased opportunities for participation, Poulin (2003) finds videoconferencing impair defendants' audio and visual perceptions and deprives them of spontaneous interjections, opportunities to address the court, and the ability to seek clarification. Poulin (2003) also argues videoconferencing may negatively influence courts' perspectives, defendants' experiences, and process fairness. Videoconferencing also disproportionately impacts those who cannot afford -or are ineligible for-bond (Lederer 1994;Diamond et al. 2010). ...
Article
The Executive Office for Immigration Review houses America's trial-level immigration courts, which adjudicate hundreds of thousands of cases annually, many resulting in deportations. Most proceedings require interpretation and all rely heavily upon technology. Yet, we know little about communication and technology in these hearings, and even less about the views of attorneys who navigate this system daily. I examine the effects courtroom interpretation and technology have on immigrant voices as described in interviews with immigration attorneys representing clients facing deportation. Attorneys overwhelmingly characterize the court as procedurally unjust, pinpointing how flaws in interpretation, telephonic conferencing, and videoconferencing offer the illusion of due process. Drawing upon criminology, legal sociology, and linguistics, this study finds profound improvements are needed to ensure due process in the nation's immigration courts, including: Elimination of telephonic and videoconferencing in all but extreme circumstances. Modernization of telephonic and videoconference technology. Improvement of interpreter standards and working conditions. Education of attorneys, judges, and interpreters regarding challenges inherent to courtroom interpretation and technology. Although enhancing the quality of interpretation and technology protocols may improve immigrants’ access to justice in immigration court, meaningful immigration court reforms should reduce the need for an immigration court altogether.
... Supporters see it as indispensable for speeding up judicial processes and facilitating access to evidence that would otherwise be unattainable. However, critics are concerned that the diminished quality of communication over audiovisual links makes confrontation and cross-examination challenging (Friedman, 2001(Friedman, -2002 and may result in the witness being perceived differently (Poulin, 2004). One commentator even suggests that using videolinks might threaten the legitimacy of the trial (Mulcahy, 2008). ...
... Qualitative interviews, questionnaires and site visits to courthouses and remote witness locations revealed perceptions on behalf of experts and judges that audiovisual links deprive experts of the feedback necessary to shape their performance, compromise their ability to gesture and interact with exhibits and demonstrative tools and create an additional cognitive load for the witness. These data support previously expressed concerns that all witnesses may find it more difficult to achieve gesture and other important nonverbal cues over audiovisual links (Poulin, 2004). Findings from this research also suggest that awareness of the important civic function of the court may be diminished when evidence is given in this way (Mulcahy, 2008;Rowden, 2018). ...
... 5 Arguably, this expectation is enhanced when we see an expert appearing onscreen. Poulin (2004Poulin ( : 1112Poulin ( -1113 asserts that our society is conditioned to expect those appearing onscreen to be 'attractive and competent', wear makeup, stylized clothing, have media training and 'know where and how to look at the camera'. Expert witnesses appearing by audiovisual links who do not conform to those expectations may, as Poulin argues of defendants appearing remotely, 'compare unfavourably' and be 'judged more harshly' than if they had appeared in person (2004: 1113). ...
Article
This article reports on empirical research conducted into the use of audiovisual links (videolinks) to take expert testimony in jury trials. Studies reveal ambivalent attitudes to court use of videolink, with most previous research focussed on its use for vulnerable witnesses and defendants. Our study finds there are issues unique to expert witnesses appearing by videolink, such as compromised ability to gesture and interact with exhibits and demonstrative tools, and reductions in availability of feedback to gauge juror understanding. Overall, the use of videolinks adds an additional cognitive load to the task of giving expert evidence. While many of these issues might be addressed through environmental or technological improvements, we argue this research has broader ramifications for expert witnesses and the courts. The use of videolinks for taking expert evidence exposes the contingent nature of expertise and the cultural scaffolding inherent in its construction. In reflecting on the implications of these findings, and on the way that reliability, credibility and expertise are defined and established in court, we suggest a more critical engagement with the relationship between content and mode of delivery by stakeholders.
... Given that, in many jurisdictions, the proceedings of courts are rarely broadcast on television, video conferencing has, for the first time, allowed the presence of the judge 'sitting live' in 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 focused on specific uses of this technologymost 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). ...
... 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, 2006-07;Federman, 2006). Far less consideration has been given to its use for other types of participants, such as experts (but see Wallace, 2011;, even less on the implications of its use for lawyers and judges. ...
Article
Full-text available
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
... A 2010 survey by the National Center for State Courts that found that 37 percent of courts in which virtual hearings had been conducted did not provide a way for attorneys and their clients to communicate privately (Bellone, 2013;Fox Cahn & Giddings, 2020). Even when a private phone line was provided for attorney-client communication, nonverbal communication was lost, making it difficult for a client to as well as they could have done in person (Poulin, 2004). During a hearing, the physical separation of attorneys and their clients has reportedly posed a barrier to communication, resulting in a lesser client contribution to their own case (Diamond et al., 2010;Fox Cahn & Giddings, 2020). ...
... Thus, judges may have been biased by visible litigants' physical appearance or background, as evidence suggests that the varying backgrounds and video frames may directly impact first impressions of litigants (Gray, 2013). As such, the defendant or respondent's behaviors and backgrounds may have contributed to a reduction in perceived trustworthiness and credibility, ultimately impacting case outcome (Denault & Patterson, 2020;Gourdet et al., 2020;Poulin, 2004). ...
Preprint
While the prevalence of virtual court hearings has increased in recent years, their use has grown exponentially due to COVID-19 court closures, leading to widespread implementation across jurisdictions. With the introduction virtual hearings into a multitude of courts, practitioners have begun reporting on the influence of several yet unexamined variables that could lead to differential outcomes in these proceedings, which raise critical questions about the equivalence of virtual hearings to in-person hearings. In this paper, we explore the impact of technical aspects of virtual proceedings, including video presence and technical difficulties, on outcomes of 196 recent virtual hearings across multiple U.S. jurisdictions. For each hearing, researchers coded the number and duration of technical problems, as well as visual and audio presence for each party. Defendants / respondents were least likely to be visually present for hearings, yet a logistic regression model indicated that their visual presence significantly decreased the likelihood of a favorable disposition. In contrast, increases in the total number of technical problems in a hearing, together with time wasted on technical issues, also increased the likelihood of a favorable outcome for the respondent or defendant. These findings raise concerns around respondent / defendant access to the courts as well as current guidance for participants in virtual hearings, prompting several key policy implications for broad, post-pandemic implementation of virtual hearings. Specifically, broad implementation of virtual hearings may require a systemic approach towards ensuring equal access to technology along with specialized guidance, particularly for self-represented litigants
... In view of such research findings, the Harvard Law Review warns that VC use may result in a system "in which individuals gain speedier entrance [to an immigration court] but fewer receive the opportunity to be heard in a meaningful manner" (2009: 1193). Poulin (2004) believes that decisions regarding the use of videoconferencing in criminal proceedings may be biased or influenced by cost savings and 7 that defendants' needs and interests are not sufficiently addressed. Taking this point further, Sossin and Yetnikoff (2007: 248) argue that "questions of financial resources and structures" cannot be separated "from the question of fairness and reasonableness" of judicial decisionmaking. ...
... Just as the use of legal videoconferencing itself has given rise to academic debate, which has suggested that that videoconference technology should be used with utmost care in legal proceedings to ensure that fairness of justice (e.g. Federman 2006, Haas 2006, Johnson & Wiggins 2006, Poulin 2004, Sossin & Yetnikoff 2007, Havard Law School 2009), a number of questions arise in relation to bilingual legal videoconferencing involving the services of an interpreter. Key questions are how the use of a videoconference link affects the quality of interpreting and the dynamics of the communication; how this is related to the actual videoconference setting and the locations of the main parties and the interpreter; and ultimately whether the combination of videoconferencing and interpreting is sufficiently reliable for achieving the specific goals of legal communication such as evidence and information gathering, decision-making and delivering justice (Braun & Taylor 2012a, Ellis 2004, Fowler 2007. ...
... As one opponent to reliance on video conferences for criminal defendants says, "video conferencing technology cannot replicate normal eye contact." 96 Finally, some possibilities of juror reliance on high-tech methods to deliberate can be unnerving. Although one could consider permitting deliberation by chat room, that would weaken or eliminate the face-to-face interaction of jurors in reaching human decisions that seems an important aspect of the decisionmaking process. ...
Chapter
Full-text available
Like everything else, the Computer Age has changed civil litigation in the U.S. The broad discovery allowed in American courts has become even broader as they have confronted Electronic Discovery. To date, it has been handled within the existing framework for American discovery, with some special tailoring of provisions for the specific problems it presents. Electronic communications are affecting the organization of American law firms, however, with offshoring of legal work gaining prominence. The handling of trials has begun to change as well, both because of problems regarding the admissibility of digital information as evidence and because electronic presentations have begun to affect the mode of trial. Although there has been change, there is also continuity; the American system of civil justice will still be “exceptional” after these changes are absorbed.
... Regarding legal applications, anecdotal evidence seems to suggest that judges, attorneys, law enforcement, and courtroom personnel may be more accepting of VTC as a method of service delivery than mental health providers (Khalifa et al., 2008). Most of the reported resistance among legal professionals relates to the constitutionality or admissibility of VTC in court proceedings (Johnson & Wiggins, 2006;Poulin, 2004). ...
Article
The application of videoteleconferencing (VTC) to individuals involved in the criminal justice system—whether at the pretrial, incarceration, or postrelease phase of the continuum—is steadily increasing. However, little is empirically known about its effectiveness as a viable tool for identifying and managing legal or treatment needs. This chapter explores the current state of VTC as a modality for providing quality mental health services to forensic and correctional populations. Applications of VTC in the legal process will also be reviewed. First, we briefly discuss the development of VTC uses in forensic and correctional settings. The rationale for applying VTC to the growing number of individuals experiencing psychological and behavioral distress within the criminal justice system is then explored by highlighting the increase in rural correctional facilities, as well as problematic trends in correctional health care. Following this, we describe the role of VTC in resolving barriers to effective treatment. Next, the extant literature on the acceptability and feasibility of VTC in conducting mental health assessments, court-related services, and rehabilitative programming is reviewed. Lastly, suggestions for future areas of research are offered. VTC is a promising alternative to alleviating an overburdened criminal justice system at all levels; however, more research is required to fully understand the benefits and limitations of VTC as a service delivery modality.
... Ill-considered remote environments -even the use of 'neutral' facilities, such as commercial or business premises -may fail to convey the seriousness of the event. While this may ease the experience of giving evidence for the vulnerable witness (Mulcahy, 2008: 480), it could result in 'inappropriate demeanor' (Poulin, 2004(Poulin, : 1125, that may signal a lack of respect for the process (Mulcahy, 2008: 478-9;Lederer, 1999: 820). It may be questionable whether, and to what extent, the remote witness is aware of the legal nature of the courtroom setting; the rules and rituals that control the interactions with the players in it; and their capacity to effectively participate (Mulcahy, 2008: 480). ...
Article
Videoconferencing technology is becoming a significant component of eJustice. Across the justice system many countries are making substantial investments in this technology for a range of uses, which increasingly involve the taking of evidence in legal proceedings. While the use of videoconferencing is most often justified on the grounds of cost-savings and convenience, there has been little in the way of research on its effects. What do we know about its impact on the witness who uses it? How is that remote witness perceived in the courtroom? How do they experience the court process? Will the giving of evidence remotely advantage or disadvantage the party who calls that witness? What criteria should courts apply when deciding whether or not to allow evidence to be taken by this method? Should there be different criteria for different types of witnesses? What protocols and procedures should guide the way the evidence is taken? This paper will report on the preliminary findings of a major three-year multi-disciplinary research project designed to improve the way remote witness technology is used in Australian courts. It will discuss the types of technology used, the extent and incidence of its use, the legal and procedural framework, and the design of the remote witness environment. In the past ten years since their inception, the design of remote witness facilities has changed little, reflecting the paucity of research undertaken in this area. We contend that the environmental context in which evidence is given is of great significance, and that a judge allowing a witness to give their evidence remotely cannot be certain that the current architectural and technological configurations will not be deleterious to a witness' ability to communicate their position to the courtroom effectively. We argue that an exploration of the concept of 'presence' in virtual environments can provide valuable insights into the way in which the remote witness environment can be improved. We will outline how our research is being used to develop criteria that will be tested experimentally in the next phase of the project. The results of this research will be used to produce practical guidance for courts on how to best use remote witness technology to achieve just outcomes in an eJustice environment.
... Accordingly, e-justice is usually pursued in order to improve the efficiency and effectiveness of judicial procedure. Accordingly, e-justice literature has often failed to account for the institutional, organizational, and indeed judicial, transformations associated with the deployment of ICT in the judiciary (Nihan and Wheeler 1981;McKechnie 2003;Poulin 2004; Moriarty 2005). ICT adoptions in the public sector and in the judiciary carry political, social, and contextual transformation that calls for a richer explanation of the overall impacts that public sector ICT-enabled reforms have on the processes undertaken to deliver public services and on the values generated by these services (Cordella and Bonina 2012;Contini and Lanzara 2014;De Brie and Bannister 2015). ...
... VTC impacts nonverbal cues and eye contact, and "[t]o the extent that technology changes behavior or masks or distorts infor-mation, it may undermine the accuracy of perceptions and corrupt the result of the proceeding." 34 Lastly, when a defendant is not present in court for his guilty plea, his absence will complicate communication between him and his attorney. 35 If the defendant is prevented from asking his attorney questions in confidence, it may affect the voluntariness of the defendant's plea. ...
... Despite the plausible benefits of using VMC, there are reasons to expect that investigators would be wary of conducting interviews remotely. For instance, many people-both legal professionals and laypeople-believe that VMC negatively affects the ability to build rapport (Braun, 2011;Poulin, 2004). Indeed, this belief is substantiated by some empirical data, such as Fullwood's (2007;Fullwood & Finn, 2010) finding that dyads who interacted remotely considered each other less likeable 6 than did dyads who interacted face-to-face. ...
Article
Full-text available
Justice systems around the world are increasingly turning to videoconferencing as a means to reduce delays and reduce costs in legal processes. This preliminary research examined whether interviewing a witness remotely – without physical co-presence of the witness and interviewer – could facilitate the production of quality facial composite sketches of suspects. In Study 1, 42 adults briefly viewed a photograph of a face. The next day they participated in Cognitive Interviews with a forensic artist, conducted either face-to-face or remotely via videoconference. In Study 2, 20 adults participated in videoconferenced interviews, and we manipulated the method by which they viewed the developing sketch. In both studies, independent groups of volunteers rated the likeness of the composites to the original photographs. The data suggest that remote interviews elicited effective composites; however, in Study 1 these composites were considered poorer matches to the photographs than were those produced in face-to-face interviews. The differences were small, but significant. Participants perceived several disadvantages to remote interviewing, but also several advantages including less pressure and better concentration. The results of Study 2 suggested that different sketch presentation methods offered different benefits. We propose that remote interviewing could be a useful tool for investigators in certain circumstances.
... However, social psychological research shows that face-to-face interaction is typically beneficial to rapport-building (Drolet & Morris, 2000); other research from the videoconferencing literature suggests that rapport-building is often less successful in VMC than in faceto-face interactions, with mutual liking harder to establish (Fullwood, 2007;Fullwood & Finn, 2010;Straus, Miles, & Levesque, 2001). Many legal professionals report similar concerns about the ability of defendants and attorneys to develop effective relationships remotely (Johnson & Wiggins, 2006;Poulin, 2004). ...
Article
Full-text available
Witnesses often experience lengthy delays prior to being interviewed, during which their memories inevitably decay. Video-communication technology – favored by intergovernmental organizations for playing larger roles in judicial processes – might circumvent some of the resourcing problems that can exacerbate such delays. However, whereas video-mediation might facilitate expeditious interviewing, it might also harm rapport-building, make witnesses uncomfortable, and thereby undermine the quality and detail of their reports. Participants viewed a crime film and were interviewed either one day later via video-link, one day later face-to-face, or 1–2 weeks later face-to-face. Video-mediation neither influenced the detail or the accuracy of participants' reports, nor their ratings of the quality of the interviews. However, participants who underwent video-mediated interviews after a short delay gave more accurate, detailed reports than participants who waited longer to be interviewed face-to-face. This study provides initial empirical evidence that video-mediated communication (VMC) could facilitate the expeditious conduct of high-quality investigative interviews.
... At the same time, research into the use of videoconferencing in legal proceedings has called for the utmost caution until such time as its consequences are fully appreciated (e.g . Federman 2006;Haas 2006;Harvard Law School 2009;Johnson & Wiggins 2006;Poulin 2004;Sossin & Yetnikoff 2007). With regard to cost-saving through videoconferencing, for example, Sossin and Yetnikoff (2007) contend that the availability of financial resources for legal proceedings cannot be separated from the fairness of judicial decision-making. ...
Article
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Remote interpreting, whereby the interpreter is physically separated from those who need the interpretation, has been investigated in relation to conference and healthcare settings. By contrast, very little is known about remote interpreting in legal proceedings, where this method of interpreting is increasingly used to optimise interpreters’ availability. This paper reports the findings of an experimental study investigating the viability of videoconference-based remote interpreting in legal contexts. The study compared the quality of interpreter performance in traditional and remote interpreting, both using the consecutive mode. Two simulated police interviews of detainees, recreating authentic situations, were interpreted by eight interpreters with accreditation and professional experience in police interpreting. The languages involved were French (in most cases the interpreter’s native language) and English. Each interpreter interpreted one of the interviews in remote interpreting, and the other in a traditional face-to-face setting. Various types of problem in the interpretations were analysed, quantitatively and qualitatively. Among the key findings are a significantly higher number of interpreting problems, and a faster decline of interpreting performance over time, in remote interpreting. The paper gives details of these findings, and discusses the potential legal consequences of the problems identified.
... With reference to criminal justice, Poulin (2004) believes that decisions regarding the use of videoconferencing in criminal proceedings may be biased or influenced by cost savings and that defendants' needs and interests are not sufficiently addressed. Taking this point further, Sossin and Yetnikoff (2007: 248) argue that "questions of financial resources and structures" cannot be separated "from the question of fairness and reasonableness" of judicial decision-making. ...
... Towards An "Expansive Vision" Of Justice And Technology 203 perception of the witness by the court, the representation received by a defendant, the outcome of the court proceeding, or the experience of the justice system by a defendant. 164 Although direct evidence on the impact of videoconferencing on the courts and court processes is relatively limited, and thus some concerns are based on speculation rather than evidence, we can be certain of one thing: videoconferenced appearances of defendants, witnesses, or even court officials are different from face to face appearances. The literature identifies a multiplicity of ways in which hearings involving appearances by videoconference differ from those not involving videoconferencing, including the ability to confront a witness, 165 the ability to cross-examine, 166 the assessment of credibility, 167 the "solemnity" of the proceeding, 168 the jury's perception of witnesses, 169 and the adequacy of representation by counsel for those appearing remotely. ...
Article
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In this paper, the authors examine developments in the Canadian access to justice dialogue from Macdonald’s seminal 2005 analysis to the recent reports of the National Action Committee on Access to Justice in Civil and Family Matters [NAC]. They draw on the NAC’s call for an “expansive vision” of access to justice as the basis for critically evaluating examples of particular technologies used or proposed as responses to the access to justice crisis in Canada. In so doing, they illustrate the importance of conscious consideration of deliverables and beneficiaries in prioritizing technologies for deployment, in determining how the technology ought to be deployed, and in evaluating the potential of a technology to facilitate access to justice. The authors argue that nuanced accounts of the relationships between justice deliverables, technological mechanisms for delivery and intended justice beneficiaries are essential to developing good decision-making mechanisms with respect to access to justice and technology.
... Sossin and Yetnikoff (2007: 248) argue that "questions of financial resources and structures" cannot be separated "from the question of fairness and reasonableness" of judicial decision-making. Taking this point further, Poulin (2004) believes that decisions regarding the use of videoconferencing in criminal proceedings may be biased or influenced by cost savings and that defendants' needs and interests are not sufficiently addressed. ...
Chapter
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This chapter reports the key findings of the European AVIDICUS 3 project, which focused on the use of video-mediated interpreting in legal settings across Europe. Whilst judicial and law enforcement authorities have turned to videoconferencing to minimise delays in legal proceedings, reduce costs and improve access to justice, research into the use of video links in legal proceedings has called for caution. Sossin and Yetnikoff (2007), for example, contend that the availability of financial resources for legal proceedings cannot be disentangled from the fairness of judicial decision-making. The Harvard Law School (2009: 1193) warns that, whilst the use of video links may eliminate delays, it may also reduce an individual’s “opportunity to be heard in a meaningful manner”. In proceedings that involve an interpreter, procedural fairness and “the opportunity to be heard in a meaningful manner” are closely linked to the quality of the interpretation. The use of video links in interpreter-mediated proceedings therefore requires a videoconferencing solution that provides optimal support for interpreting as a crucial prerequisite for achieving the ultimate goal, i.e. fairness of justice. Against this backdrop, the main aim of AVIDICUS 3 was to identify institutional processes and practices of imple¬ment¬ing and using video links in legal proceedings and to assess them in terms of how they accommodate and support bilingual communication mediated through an interpreter. The focus was on spoken-language interpreting. The project examined 12 European jurisdictions (Belgium, Croatia, England and Wales, Finland, France, Hungary, Italy, the Netherlands, Poland, Scotland, Spain and Sweden). An ethnographic approach was adopted to identify relevant practices, including site visits, in-depth and mostly in-situ interviews with over 100 representatives from different stakeholder groups, observations of real-life proceedings, and the analysis of a number of policy documents produced in the justice sector. The chapter summarises and systematises the findings from the jurisdictions included in this study. The assessment focuses on the use of videoconferencing in both national and cross-border proceedings, and covers different applications of videoconferencing in the legal system, including its use for links between courts and remote participants (e.g. witnesses, defendants in prison) and its use to access interpreters who work offsite (see Braun 2015; Skinner, Napier & Braun in this volume).
... With reference to criminal justice, Poulin (2004) believes that decisions regarding the use of videoconferencing in criminal proceedings may be biased or influenced by cost savings and that defendants' needs and interests are not sufficiently addressed. Taking this point further, Sossin and Yetnikoff (2007: 248) argue that "questions of financial resources and structures" cannot be separated "from the question of fairness and reasonableness" of judicial decision-making. ...
... 217 The longstanding criticism in the literature that technology could not fully capture cues such as hand gestures, facial expression, gaze, and posture has also been challenged. 218 Perram J in Capic v Ford Motor Co of Australia Limited ('Capic') stated that the authorities which highlight the unsatisfactory nature of cross-examination by video were not 'made with the benefit of seeing crossexamination on platforms such as Microsoft Teams, Zoom or Webex' 219 stating that his 'perception of the witness' facial expressions is much greater than it is in Court'. 220 Similarly, Lee J in Australian Securities and Investments Commission v GetSwift Ltd found no diminution in observing the 'hesitations and idiosyncratic reactions when being confronted with questions' of cross-examination and that in some respects it was easier to do so compared to a 'distant witness box'. ...
Article
With the onset of the COVID-19 pandemic, courts around the world rapidly shifted to remote hearings. Balancing public health directives with the need to continue upholding the rule of law, what followed was the largest, unforeseen mass-pilot of remote hearings across the world. For courts this was necessarily a time of action, not reflection. However, after having maintained court operations, it is now necessary to reflect on the experience of remote courts and their users during an otherwise unprecedented situation. Unlike previous iterations of remote hearings, the COVID-19 experience was fully remote – whereby all participants took part in the hearing remotely. The difficulty is until now, almost no prior empirical data has existed on this type of fully remote hearing with the majority of previous research focused on the use of audiovisual links (‘AVLs’) to facilitate partially remote appearances within courtrooms. To bridge the research and data gap on fully remote hearings, this article draws on the previous body of literature to both examine the COVID-19 experience, and to assist in guiding future research and use of remote hearings.
... It is not clear whether the lawyer should be-in the courtroom or with the accused. It may be necessary to have two lawyers present; but then there would be the problem of ensuring the right of the accused to receive explanations from the lawyer from a distance -that is, present in the courtroom (Poulin 2004;Thaxton 1995). Moreover, a test of the jurors ' perceptions of witness testimony by video transmission has shown that they tend to have less confidence in evidence obtained indirectly than in evidence in the form of personal testimony (Goodman and Tobey 1998). ...
... Nevertheless, before extolling the merits of phone and computer applications, the multiple functions of nonverbal communication should be carefully considered, as should other concerns raised by experts. Legal scholars have written about various adverse consequences of trials by videoconference (e.g., Cimino et al. 2014;Diamond et al. 2010;Donoghue 2017;Federman 2006;Marr 2013;Poulin 2004;Walsh and Walsh 2008). These consequences not only include dehumanizing defendants (Eagly 2015;Salyzyn 2012), but also compromising their right to effective counsel assistance (Johnson and Wiggins 2006), and hindering the image and the role of judges, the symbolic function of courthouses, and the law's legitimacy and authority (Rowden 2015;Rowden and Wallace 2018;Salyzyn 2012). ...
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On 11 March 2020, the World Health Organization officially declared COVID-19 a pandemic. The new physical distancing rules have had many consequences, some of which are felt throughout the justice system. Courts across the world limited their operations. Nonetheless, given that justice delayed is justice denied, many jurisdictions have turned to technologies for urgent matters. This paper offers an evidence-based comment and caution for lawyers and judges who could be inclined, for concerns such as cost and time saving, to permanently step aside from in-person trials. Using nonverbal communication research, in conjunction with American and Canadian legal principles, we argue that such a decision could harm the integrity of the justice system.
... So the district judge gave up on hearing the case and remanded the defendant to prison for a mental health assessment. Source: Transform Justice (2020) While recent academic research has focused on courtroom design (Poulin 2003;Rossner et al. 2017;Rowden et al. 2013;Tait et al. 2017) relevant to the use of technology in jury trials and jurors' comprehension of AVL evidence (Gertner 2004;Taylor & Joudo 2005;Widdison 1997), little research has been conducted on the more general use of AVL in Australian criminal courts. The Productivity Commission examined the use of technology in the civil courts in 2014 and how it affects access to justice, efficient use of court time and effective presentation of evidence during hearings. ...
Book
Audiovisual link (AVL) technologies have had considerable impact on criminal court processes in Australia and overseas, particularly following the need for social distancing created by the coronavirus pandemic in 2020. AVL technologies have enabled courts to take oral evidence from witnesses and litigants in different geographical locations, reducing the need to travel long distances and minimising the time, administrative costs and health risks associated with attending court in person. In 2016 the AIC commenced a project to document the extent to which AVL technologies are used in criminal courts in Australia, as well as the types and prevalence of AVL technologies used and the technological, administrative and procedural issues associated with their use in terms of fairness, openness, legality and natural justice. This report assesses the practical and legal considerations that need to be taken into account when adopting AVL technologies in the criminal courts and concludes by identifying best practice initiatives for the adoption of AVL technologies in Australia. An accompanying report presents findings regarding the implementation of systems in Australia (Smith, Savage & Emami 2021).
... As the National Association of Criminal Defense Lawyers (NACDL) notes, "[t]he fact that hearings and trials can be conducted via videoconference platforms does not make these proceedings legal" (Ettinger, Gerger, and Pollack, 2020). Defense lawyers have urged the abandonment of video; however, seeing that videoconferencing is perhaps unavoidable, they have at least called for better technology and training (Poulin, 2004). ...
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Forthcoming in C. Campbell and J. Holtzclaw, eds. Trends in State Courts 2021. Williamsburg, VA: National Center for State Courts. Courts occupy a unique position in the justice system that is steeped in tradition and formality. Likewise, any changes from established procedure are likely to invite challenges to decisions and outcomes based on their legal and constitutional implications. As such, it should be no surprise that courts have been slow to embrace technological advances. Yet the pandemic has forced courts to quickly adapt and adopt new technologies. Courts and other governmental entities are currently overcoming hurdles to meet this challenge. In this article, we discuss the rise of and courts’ potential issues with embracing the use of new technologies, with a particular focus on three innovations -- video conferencing, text messaging, and cloud storage.
... Just as the use of legal videoconferencing itself has given rise to academic debate, which has suggested that that videoconference technology should be used with utmost care in legal proceedings to ensure that fairness of justice (e.g. Federman 2006, Haas 2006, Johnson & Wiggins 2006, Poulin 2004, Sossin & Yetnikoff 2007, Havard Law School 2009), a number of questions arise in relation to bilingual legal videoconferencing involving the services of an interpreter. Key questions are how the use of a videoconference link affects the quality of interpreting and the dynamics of the communication; how this is related to the actual videoconference setting and the locations of the main parties and the interpreter; and ultimately whether the combination of videoconferencing and interpreting is sufficiently reliable for achieving the specific goals of legal communication such as evidence and information gathering, decision-making and delivering justice (Braun & Taylor 2012a, Ellis 2004, Fowler 2007. ...
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This chapter focuses on the use of videocon¬ferencing in bilingual legal proceedings that involve an inter¬preter. The rationale is twofold. Firstly, videoconferences are frequently used in both national and cross-border proceedings now, for example to establish a video link between a court and a defendant in prison or a witness in another country. Due to the current scale of migration and mul¬ti¬lin¬gualism in Europe such proceedings are sometimes bilingual and require the integration of an interpreter into the videoconference. Secondly, videoconferences can be used to gain or optimise access to qualified legal interpreters. References to this use of videoconference are incor¬porated in Directives 2010/64/EU on the right to inter¬preta¬tion and translation in criminal proceedings and 2012/29/EU on the rights, support and protection of victims of crime. Given these developments and the crucial role of video¬conferencing in European eJustice, bilingual videoconference-based legal proceedings are likely to become more frequent across Europe. Just as the use of legal videoconferencing itself has given rise to academic debate, which has suggested that that videocon¬ference technology should be used with utmost care in legal proceedings to ensure that fairness of justice (e.g. Federman 2006, Haas 2006, Johnson & Wiggins 2006, Poulin 2004, Sossin & Yetnikoff 2007, Havard Law School 2009), a number of questions arise in relation to bilingual legal videoconferencing involving the services of an interpreter. Key questions are how the use of a videoconference link affects the quality of interpreting and the dynamics of the communication; how this is related to the actual videoconference setting and the locations of the main parties and the interpreter; and ultimately whether the combination of videoconferencing and interpreting is sufficiently reliable for achiev¬ing the specific goals of legal communication such as evidence and informa-tion gathering, decision-making and delivering justice (Braun & Taylor 2012a, Ellis 2004, Fowler 2007). The emerging uses of video-mediated interpreting in legal proceedings suggest that the implementation of videoconferencing facilities in legal settings needs to make appropriate provisions for the integration of interpreters. Against this background, the European AVIDICUS projects (‘Assessment of Videoconference-based Interpreting in the Criminal Justice System’; funded by the European Commission, Directorate General for Justice), have conducted research into several aspects of bilingual videoconferencing and have developed relevant guidelines and training (Braun & Taylor 2012a, 2016). AVIDICUS 1 and 2 have focused on the viability, quality and communicative dynamics of videoconference-based, interpreter-mediated legal proceedings, e.g. by comparing traditional and videoconference-based proceedings. The AVIDICUS 3 project is currently conducting a comprehensive assessment of the videoconferencing solutions that are used in legal proceedings across Europe in terms of their fitness for accommodating bilingual situations and integrating an interpreter. The comparative studies conducted in AVIDICUS 1 and 2 pinpoint potential challenges of bilingual videoconference communication; the interim findings from AVIDICUS 3 highlight the emerging variety and diversity of videoconference configurations (e.g. remote witness, remote interpreter, multi-point videoconferences), and point to the need for identifying best practice and areas for improvement. This chapter will begin by giving an overview of the main configurations of bilingual videoconferencing (section 2) and then outline the key findings of the AVIDICUS projects (section 3). The concluding section (section 4) will highlight future directions of research and development.
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أضحى استخدام تقنية المحادثة المرئية عن بعد في الإجراءات ذات الطابع القضائي من أدوات تطوير النظام القضائي في عصرنا الحاضر، بيد أنه يطرح على صعيد الدول التي وطنت هذه التقنية في محاكمها إشكالية تتعلق بمدى ملاءمة هذه التقنية لتحقيق العدالة القضائية بذات الطريقة التي تحققها الإجراءات القضائية التقليدية. وعلى هذا يثير موضوع البحث التساؤل عن مدى إمكانية استخدام تقنية المحادثة المرئية عن بعد في الإجراءات ذات الطابع القضائي تحقيقا لمتطلبات تطوير النظام القضائي, وعن المخاطر التي يفرضها استخدام هذه التقنية على تحصيل العدالة القضائية. ومن هنا يحاول البحث الموازنة بين الأثار الإيجابية لتوظيف المحادثة المرئية عن بعد في الاجراءات القضائية على تطوير النظام القضائي، وتمكينه من الاستفادة من التطور التقني على مستوى اختصار الوقت، والإجراءات والنفقات، وتحسين الأداء القضائي بشكله العام. وبين الأثار السلبية لاستخدام هذه التقنية في الإجراءات القضائية بما تفرضه من مخاطر تهدد جودة العمل القضائي وتنتهك العدالة القضائية. بناء على ذلك يستعرض البحث المزايا الإيجابية لاستخدام تقنية المحادثة المرئية في الإجراءات القضائية، ومخاطر استخدامها على العدالة القضائية. ويسلط البحث الضوء على الضمانات الفنية والقانونية التي يجب توفيرها لضمان استخدام آمن لهذه التقنية على العدالة القضائية. ومن ثم يحاول البحث في إطار الموازنة بين هذه المزايا والمخاطر الترجيح بين التوجه لفتح الباب أمام المحاكم لاستخدام هذه التقنية دون ضوابط تحد من آثارها السلبية، وبين التوجه القانوني في تحريم اللجوء إلى هذه التقنية في نطاق العمل القضائي دون الالتفات الى منافعها الإيجابية والسعي لمواكبة التطور التقني الذي أستولى على أغلب القطاعات الحكومية الأخرى. الكلمات المفتاحية: المحادثة المرئية، اصول التقاضي، العدالة القضائية، حيوية التقاضي.
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This chapter reports on one of the outcomes of the AVIDICUS Project. Against the backdrop of recent developments in Europe, especially the promotion of the use of videoconferencing in criminal proceedings, for example in the European E-Justice Action plan,1 the AVIDICUS Project set out to evaluate the quality of video-mediated interpreting in criminal pro-ceedings and its viability from an interpreting point of view. To achieve this overarching aim, the project had three specific objectives: (1) To identify situations in the criminal justice sphere where video-mediated interpreting would be most useful and specify a set of rele-vant situations; (2) To assess the reliability of video-mediated interpreting in these situa-tions from an interpreting perspective through a series of comparative case studies and formulate a set of recommendations for EU criminal justice services on the use of video-mediated interpreting in criminal proceedings; (3) To devise and pilot three training modules on video-mediated interpreting based on the findings from (2): one for legal practitioners, including the police; one for interpreters working in the legal services; and one for interpreting students. The first of these objectives included a review of current practice of video-mediated interpreting, especially in legal proceedings, which will be discussed in this chapter.
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The COVID-19 pandemic has led to an increase in the use of video-mediated justice practices. However, such developments have already been transforming justice over the course of the previous 20 years. Scholars and legal professinals have expressed concerns over how remote appearance in court impacts perceptions of the accused. In this article, we consider some of these concerns and explore the concept of the ‘distributed court’ as a potential remedy. Unlike traditional video appearance in court, where a defendant participates remotely while all other players are co-located in the same courtroom, in a distributed court all participants meet in a shared virtual space. Such a configuration is similar to the virtual courts developed worldwide during the COVID-19 pandemic. We draw on a reimagining of co-presence from scholars in the sociology of technology to elaborate the concept of the distributed court. We then present the results of a mock jury study that examines how jurors respond to variations in court technology configurations. We find that appearing by video does not impact the likelihood of a guilty verdict. Rather, a defendant appearing alone in a dock seems to be the most prejudicial location. We find that a distributed court can communicate equality and produce a shared experience of remote participation. We conclude with a discussion of how this research can inform best practice in a future where a significant number of criminal hearings are likely to continue in a virtual format.
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In most common law jurisdictions worldwide, an offender’s remorse is a mitigating factor in sentencing. It matters whether or not a person who has committed a crime is truly sorry for what they have done. And yet how judges evaluate such expressions is unclear. Drawing on 18 interviews with judges in the New South Wales criminal justice system in Australia, this article examines the status of offenders’ live, sworn evidence in the judiciary’s assessment of offenders’ remorse. These interviews with the judiciary reveal that remorse assessment often operates beyond semiotic, representational paradigms (such as ‘demeanour assessment’) and instead works, in experiential terms, as a feeling. When it comes to offenders getting into the witness box and speaking of their remorse, it seems that sometimes something gets felt by judges at the level of embodied affect that then enables them to declare: ‘This person is remorseful.’
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As audio visual communication technologies are installed in prisons, these spaces of incarceration are networked with courtrooms and other non-contiguous spaces, potentially facilitating a process of permeability. Jurisdictions around the world are embracing video conferencing and the technology is becoming a major interface for prisoners’ interactions with courts and legal advisers. In this paper, I draw on fieldwork interviews with prisoners from two correction centres in New South Wales, Australia, to understand their subjective and sensorial experiences of using video links as a portal to the outside world. These interviews raised many issues including audio permeability: a soundtrack of incarceration sometimes infiltrates into the prison video studio and then the remote courtroom, framing the prisoner in the context of their detention, intruding on legal process, and affecting prisoners’ comprehension and participation.
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While the use of videoconferencing becomes commonplace in courtrooms, concerns remain about its impact on judges, parties, attorneys, and other participants as it relates to their interactions and communication in the courtroom and the outcome of judicial proceedings. Studies that examined the use of videoconferencing in criminal bail hearings and immigration hearings found less favorable outcomes for defendants and respondents. Unless it is demonstrated that the technology guarantees the equivalent procedural justice maintained in the existing process, adoption of such technology may not be a viable option even when it provides a gain in efficiency. Focusing on procedural consistency, one aspect of procedural justice, we compared the length of time incurred for the court to process a petition for a temporary protective order (TPO), both judicial and non-judicial processes, between when the hearing was held in person and when it was held via videoconference. Regardless of the approach, there was no discernible difference in the average length of time to complete the TPO hearing. The use of videoconferencing did not significantly impact how the court processes TPO petitions either. Potential benefits of using videoconferencing in domestic violence cases are also discussed.
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The Covid-19 pandemic has led to an enormous increase in the use of technology in the courtroom. This development raises the important question on the potential effects of the digitalisation of criminal justice—especially from the viewpoint of the right to a fair trial. This contribution discusses this complicated question from different angles. It focuses on a number of different assumptions underlying the debate: the assumption that the use of technology in the courtroom diminishes human interaction, impedes an effective defence, influences decision-making and affects the legitimacy of the trial. This is done with the aim to shed light on the lack of evidentiary basis of these assumptions which clearly complicates the current discussion on the future of technology in the courtroom. The author argues that the validity of these assumptions needs to be adequately tested before we can make any long-term decisions on the content and scope of virtual criminal justice.
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