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Criminal Justice and Videoconferencing Technology: The Remote Defendant
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.
... Studies of the advantages of remote dispute resolutionwhich began with the use of videophones in the 1970sprimarily investigate economic savings and resource issues (Fielding et al. 2020). Immediately before the COVID-19 outbreak, videoconferencing technology in criminal cases was mostly used when the detained defendants need safer, less costly, and/or easier participation in the trial (Davis et al. 2015;Poulin 2004). Videoconferencing allows greater flexibility in court scheduling, which in turn permits a higher use rate of courtrooms and personnel (Turner 2020). ...
... Defendants are also less likely to fully understand legal proceedings as a result of technology malfunctions, constant distractions, and their compromised presence (Nir and Musial 2022). Above all, scholars generally argue that the court should not extensively rely on videoconferencing technology, given videoconferencing's negative impact on the representation of defendants and the integrity of the justice system (Bannon and Keith 2020;Nir and Musial 2022;Poulin 2004;Turner 2020). ...
... (2) Visual modelayout: As this open trial is presented online in video format, the layout of each participant's camera resembles the courtroom layout. This plays a significant role in displaying power relations (Poulin 2004;Zheng 2014). ...
... Given the number of cases the legal system must process, working through video links between courts and detainees has become a growing practice in many countries, especially during pre-trial hearings. Nonetheless, few studies have examined the implications of employing VC technology on procedural justice (Poulin, 2004). ...
... When VC technology replaces live hearings, clear benefits accrue to the governmental side of the system (Poulin, 2004;Thaxton, 1993). Because detainees do not need to be brought to court, videoconferencing reduces the costs and risks associated with transportation and security, while increasing the court's efficiency, allowing more cases to be heard in the same time (Poulin, 2004;Roth, 2000). ...
... When VC technology replaces live hearings, clear benefits accrue to the governmental side of the system (Poulin, 2004;Thaxton, 1993). Because detainees do not need to be brought to court, videoconferencing reduces the costs and risks associated with transportation and security, while increasing the court's efficiency, allowing more cases to be heard in the same time (Poulin, 2004;Roth, 2000). Those in favor of VC argue that it also benefits detainees, in that they are spared the physical discomfort, emotional distress, and loss of dignity associated with being transported to court and having to appear in public (Poulin, 2004;Silbert et al., 1984). ...
The use of videoconferencing (VC) technology in legal hearings has been expanding recently. However, the effects of using VC in court hearings on different elements of procedural justice have not yet been widely investigated. Systematic observations conducted in 370 exten-sion-of-detention hearings were used to compare the court settings and dimensions of procedural justice between hearings where the detainee was present in person vs. through VC. Multivariate regression analysis indicates that the voice, respect, and neutrality elements of procedural justice are significantly lower in VC hearings than in-person hearings, controlling for various variables. The findings suggest that legal bodies should consider measures to improve the quality of procedural justice during VC hearings, thereby improving satisfaction and acceptance of courts’ decisions.
... 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). ...
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). ...
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.
... 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. ...
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.
... Suppose the counsel attempts to join the remote criminal trial from the detention center or jail, where the accused person/client is detained. In that case, it may lead to distractions or an inability to participate attentively due to external factors (Poulin, 2004). ...
... "Inadequate illumination may impact the judge's visual clarity of the defendant on the screen and potentially influence the judge's interpretation of the person's character." The technology could hinder the judge's ability to evaluate the defendant's nonverbal cues (Poulin, 2004). ...
This article evaluates the credibility and evidentiary value of witness testimony and cross-examination conducted remotely in a criminal trial. It begins by discussing the difference between a typical criminal trial/proceeding and a criminal trial conducted remotely through video-link via Zoom, Google Meet, or other online video-meeting platforms. Furthermore, it elaborates on the principles of a fair trial. It makes a critical inquiry as to whether the parameters of a fair trial are met if the trial is conducted remotely. The article aims to establish that while remote criminal trials can serve as an alternative to regular criminal trials, this benefit does come with a significant cost. It is for the judges and jury to decide whether the benefit outweighs the price through a cost-benefit analysis of the entire scenario. The main argument behind discouraging the trend of remote criminal trials is its impact on the evidentiary value of witness testimony and cross-examination. These two components are considered to be the essence of a criminal trial. Lastly, it discusses the impact of remote criminal trials on the evidentiary value of these components in light of the comparative analysis of procedural formalities and requirements.
... Research also finds that crucial non-verbal communication cues, such as eye contact, body language, voice tone, and demeanor, may be obscured or misinterpreted by key legal actors, namely judges (e.g., Walsh and Walsh 2007). Further complicating this issue, the use of virtual backgrounds, video filters, and visual distractions within the video frame may also contribute to diminishing the perceived credibility of defendants in virtual environments (Denault and Patterson 2021;Poulin 2003). Given that these factors play a crucial role in conveying a person's message and establishing credibility, the use of virtual modalities and accompanying technical difficulties introduces inherent risks to the credibility of defendants and, consequently, may negatively impact decision-making (Mehrabian 2017;Timony 2000;Landström and Anders Granhag 2010;Landström et al. 2015;Levenson 2008;Walsh and Walsh 2007). ...
... The logistical challenges faced by defendants during virtual hearings have also led to numerous constitutional concerns, namely surrounding the infringement of Fifth and Sixth Amendment constitutional rights (Bermant and Woods 1994;Nir and Musial 2022;Poulin 2003; also see Seymour v. State, 582 So. 2d 127 and People v. Guttendorf, 723 N.E. 2d 838; State v. Smith, SC99086). ...
Following the onset of the COVID-19 pandemic, courts nationwide abruptly halted operations. Seemingly overnight, courts adopted videoconferencing technology and resumed critical operations virtually. Given that resuming operations took precedence, less attention was given to the numerous concerns surrounding virtual courtrooms, including, for example, constitutional violations and technical-related challenges. In the current study, we used a sample of pretrial detention hearing cases (N = 330) systematically collected in a New Jersey courtroom (April 2020 – April 2021) that expeditiously shifted modalities from in-person to virtual following the pandemic. In doing so, we described the prevalence of technical difficulties (e.g., video/audio glitches and disconnections) experienced by legal actors and defendants, assessed how the court adapted to the new virtual modality, and explored how technical difficulties influenced case decisions. Employing descriptive statistics and multivariate models, we found no evidence to suggest that technical difficulties influenced decisions. However, we found that technical difficulties were commonplace and that defendant disconnections increased over time, putting into question the court’s adaptability. Based on our findings, we echo other scholars’ concerns surrounding the current use of the technology and signal the need for additional research before continuing and or possibly expanding its use post-pandemic.
... For example, it may not be clear to a judge that a litigant or witness who is hearing impaired cannot read the lips of others who are speaking to them while on their mobile screen. Moreover, in the view of critics, any benefit of enhanced access is overshadowed by the difficulty (1) participants experience in reading non-verbal signals over video, (2) attorneys experience in protecting private communication with their clients before and during a proceeding, and (3) interpreters experience ensuring that those who do not speak English as their first language can fully understand the proceedings (Bannon & Keith, 2021;Napier & Leneham, 2011;Poulin, 2003). Empirical research supports the claim that, at least for criminal defence attorneys, the lack of a confidential communication channel with their clients negatively affects their representation (Bellone, 2013;Walsh, 2018). ...
... While some of their concerns repeated those of anti-remote-court legal scholars, namely, the difficulty of reading non-verbal signals and technical disruptions, they pointed to an additional concern not addressed in the literature-the perceived inability to persuasively communicate in an unfamiliar digital context. These findings echo concerns about communication barriers in remote court processes communication challenges that inhibit full and fair participation (Donoghue, 2017;Poulin, 2003). In doing so, these findings raise questions about whether remote court technologies undermine remote user's ability to have their voice heard, an important tenet of whether the public views legal proceedings as just (Tyler & Sevier, 2013). ...
... 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). ...
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
... 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. ...
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
... Pre-COVID, several studies uncovered findings demonstrating that defendants (or other parties) whose hearings were conducted remotely fared worse than similarly situated parties whose cases were held in court (Poulin, 2004;Walsh and Walsh, 2008;Diamond et al., 2010). Explanations ranged from increased bias towards those appearing on video, through difficulty of establishing credibility online, to opportunities missed due to the absence of a physical encounter (Bannon and Adelstein, 2020. ...
... Only in exceptional circumstances may a state restrict confidential contact between a person in detention and his defense counsel. 28 During remote criminal proceedings this issue of private communication is less acute when the accused (or suspect) is out of custody, as the burden of private communication then falls on him and his defense counsel. For example, they may attend the hearing together from the same room or, if separately, confer by telephone. ...
Although remote criminal proceedings have existed in Lithuania for some time, they have never been used as extensively as during the COVID-19 pandemic. The pandemic demonstrated that remote criminal proceedings could help prevent the spread of infectious diseases and at the same time facilitate the criminal justice process by eliminating, for example, the need to spend time travelling to the location of the proceedings or wasting other resources. For this reason, even after the COVID-19 pandemic, remote criminal proceedings remained popular. However, the remote criminal process is not a neutral substitute for the in-person criminal proceedings. It has an impact on the traditional paradigm of criminal proceedings that is not always positive. This article discusses the regulation of remote criminal proceedings in Lithuania by presenting the findings of an empirical study of Lithuanian lawyers’ perspectives on the remote criminal process which surveyed more than 100 Lithuanian lawyers (judges, prosecutors, lawyers, and pre-trial investigation officers). The article discusses the main advantages and disadvantages of remote criminal proceedings noted by the professionals and identifies legal problems caused by such mode of proceedings. The paper seeks to demonstrate that the development of remote criminal proceedings should be carried out with caution, taking into account its impact on the quality of criminal proceedings and the rights of the participants.
... Although the COVID-19 pandemic led to an exponential increase in the hearing of witnesses through videoconference or other suitable technical means of communication in court (de Vocht, 2022;Legg, 2021;Sanders, 2021;Turner, 2021), statements given via videoconference or prerecorded video versus statements given live in the courtroom had already been the subject of some research prior to the pandemic (Johnson & Wiggins, 2006;Landstr€ om, Ask & Sommar, 2015Landstr€ om, Will en & Bylander, 2012;Poulin, 2004;Williams, 2011). From a legal point of view, the most prominent concern raised has been that of whether videoconferencing compromises the parties' constitutional rights (Johnson & Wiggins, 2006;Rowden, Wallace & Goodman-Delahunty, 2010). ...
The increase in remote hearings after the COVID‐19 pandemic presents an urgent need to examine how judges assess video‐mediated witness and party statements compared with live statements. There is currently a limited body of research on this subject. As for the assessment itself, professionals within the judicial system sometimes believe they can detect deception based on visible cues such as body language and emotional expression. Research has, however, shown that lies cannot be detected based on such cues. The Finnish Supreme Court has also given rulings in accordance with the scientific literature. In this study, we used a survey to investigate how much importance a Finnish sample of district judges (N = 47) gave to several variables pertaining to the statement or the statement giver, such as body language and emotional expression. We also investigated the association between the judges' beliefs about the relevance of body language and emotional expression and their preference for live statements or statements via videoconference. The judges reported giving more importance to body language and emotional expression than legal psychology research and Finnish Supreme Court rulings would call for. Our results also indicated that there was a slight bias to assess live statements more favorably than statements given via videoconference, as well as a slight bias in favor of the injured party. More effort must be put into making judges and Supreme Courts aware of findings in legal psychology to avoid biases based on intuitive reasoning where it is contrary to scientific evidence.
... A key limit to the effectiveness of any AVL is the quality of the technology and equipment, including telecommunications infrastructure. 27 Indeed the legislation permitting the use of AVL requires that the AVL enable all persons to see and hear each other. 28 Earlier, pre-pandemic cases dealing with the use of AVL for oral examination had expressed concern about technical difficulties (e.g. ...
In 2020, the federal courts in Australia moved quickly to conducting matters "remotely", typically by telephone or audiovisual link, in response to the outbreak of the COVID-19 pandemic. This article reports on a survey of judicial officers in three federal courts about their experiences of conducting matters remotely. The findings are discussed in relation to judges' perceptions of the challenges and benefits of undertaking proceedings remotely and the functioning of technology, including views about procedural fairness and maintaining their role. It is clear that judicial willingness to make use of technology, and confidence displayed in doing so, is critical for the continued and successful use of remote procedures. The conclusion considers judges' views about continuing to use remote proceedings into the future, even once pandemic conditions subside. Most respondents stated that while conducting proceedings remotely was a "second best" option, inferior to the physical courtroom, it was better than the courts ceasing to function. Many thought it should continue to be employed for procedural matters though not for trials.
... Candidates should therefore be aware of their backgrounds to make a good first impression. Beyond the boardroom, the implications of the study are pervasive for the criminal justice as defendants are increasingly appearing by videoconferencing [95]. Based on this study's results, it is feasible that video background will influence perceptions of defendants, particularly as Blair [14] demonstrated influence of appearance on sentencing and judicial decisions. ...
Trait inferences from first impressions are drawn rapidly and spontaneously. However, the Covid-19 pandemic forced interactions online introducing differential influential factors on first impressions. As such, there is an absence of research investigating video background on videoconferencing impression formation. This study explored the influence of video background, facial expression, and gender on first impressions of trustworthiness and competence. Video background affected trustworthy and competence perceptions with Plants and Book backgrounds scoring highly on both dimensions while the Home and Novelty backgrounds consistently received the lowest ratings. Happy faces were perceived as more trustworthy and more competent while female faces were also rated as more trustworthy and more competent, regardless of the background they were using. The explanations for these findings are discussed, along with future directions for research and the implications for videoconferencing use.
... будівлі суду. 23 Також варто зазначити, що дистанційне провадження може заощадити кошти, усуваючи потребу транспортувати затриманих підозрюваних, обвинувачених із місць утримання до зали суду 24 . Наприклад, за оцінками, використання дистанційного провадження в окрузі Лос-Анджелес допомогло округу заощадити значний відсоток із приблизно 63 мільйонів доларів США витрачених у 2016-17 роках на управління складною транспортною програмою, яка включала робочу силу, обладнання, технічне обслуговування, ремонт і паливо для транспортування 723 000 поїздок ув'язнених до місцевих судів. ...
... Candidates should therefore be aware of their backgrounds to make a good first impression. Beyond the boardroom, the implications of the study are pervasive for the criminal justice as defendants are increasingly appearing by videoconferencing (Poulin, 2003). Based on this study's results, it is feasible that video background will influence perceptions of defendants, particularly as Blair (2004) Overall, the current study demonstrates the power and influence of video background on first impressions, as well as the importance of being able to negate these influences in order to leave the best first impression possible. ...
Trait inferences from first impressions are drawn rapidly and spontaneously. However, the Covid-19 pandemic forced interactions online introducing differential influential factors on first impressions. As such, there is an absence of research investigating video background on videoconferencing impression formation. This study explored the influence of video background, facial expression, and gender on first impressions of trustworthiness and competence. Video background affected trustworthy and competence perceptions with Plants, Books and Blank backgrounds scoring highly on both dimensions while the Home, Blurred Home and Novelty backgrounds consistently received the lowest ratings. Happy faces were perceived as more trustworthy and more competent while female faces were also rated as more trustworthy and more competent, regardless of the background they were using. The explanations for these findings are discussed, along with future directions for research and the implications for videoconferencing use.
... 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'. ...
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.
... 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. ...
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). ...
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.
... 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). ...
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.
... 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). ...
... 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. ...
... 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. ...
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.
... 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. ...
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).
... 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). ...
... 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. ...
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.
... 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. ...
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.
... 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). ...
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.
... 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). ...
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.
A tanulmány azt a kérdést járja körül, hogy milyen szerepet játszott és játszik a jogi szférában a technológia a járvány okozta különleges helyzet túlélésében. Ehhez először bemutatja a különböző jogi technológiákat, amelyek megjelenését három korszakra bontja: az irodaautomatizálási, az online és a mesterséges intelligencia korszakaira, és azzal érvel, hogy a pandémia meggyorsította a második korszak lezárását és a harmadikba történő átlépést. A tanulmány második része a pandémia alatt használt technológiák működését mutatja be: az online azonosítási módszereket, az audio- és a videokonferencia, az online iratkezelő és az online vitarendező rendszereket. Ez utóbbiak már a jogi informatika új korszakát, a mesterséges intelligenciával támogatott korszakot reprezentálják. A tanulmány néhány általánosabb következtetéssel és ajánlással zárul.
During the 2010s, technological development created the opportunity to hold online hearings, when the parties are physically distant from each other, when their personal appearance would entail significant threat to them, or when external circumstances would impose additional barriers for interested stakeholders to appear in the courtroom. As a consequence, amongst others, the Belgian Constitutional Court heard a case concerning the constitutionality of such trials, and rejected this new form of judicial operation due to numerous constitutional concerns. Nevertheless, the context of such controversies changed significantly during the pandemic, and in the light of the public health risks several judicial bodies decided to continue most of their operations through digital means. As a result, the holding of numerous online trials was ordered. Obviously, losing parties often submitted remedies against the incorporation of these platforms into judicial work by claiming the violation of their right to fair trial. For instance, the French Constitutional Council, the Spanish Constitutional Tribunal, as well as the Supreme Courts of Austria, Norway, Costa Rica and India assessed the constitutionality of these trials during the public health emergency, and in most of the cases, the application of online hearings was upheld. Bearing in mind this tendency in the relevant case law, one should argue that the rapidly evolving technological landscape requires the reconsideration of our attitudes towards online hearings: it should be clarified which grounds are acceptable justifications for ordering online trials during ordinary periods, and how the analysis is affected by unforeseen extra-ordinary circumstances. Online, or partly online proceedings may provide greater flexibility for both the court and the parties, and could also support the efficiency of judicial work, however, the main fair trial safeguards should be maintained. Our contribution will conceptualize this issue, and will provide a deeper understanding of the constitutional implications of remote trials.
Just court systems are enabled by inclusive justice practices. Toward creating conditions for more inclusive justice–specifically engaging with and enabling experiential experts–we applied the Diverse Voices method to improve the Access to Justice Technology Principles (ATJ-TPrinc) which guide court administration in Washington State, USA. We situate our work in literature on inclusive justice, public interest technology in the courts, value sensitive design, and experiential experts. Then we present our research context, the Washington State ATJ-TPrinc, and our method, the Diverse Voices. We provide details on our methods, including our project genesis and implementation of the Diverse Voices process. We conducted experiential expert panels with four stakeholder groups: legal professionals, currently/formerly incarcerated people, immigrant communities, and rural communities. We then report key concerns and insights which surfaced during the panels as well as the review process and adoption of the revised Principles by the Washington State Supreme Court. We document changes to the ATJ-Princ informed by feedback from the expert panelists, including two new principles – P11 Human Touch and P12 Language Access. The discussion focuses on evidence for success, skillful implementation of the Diverse Voices method, the need for complementary regulation, and benefits to inclusive justice efforts and public interest technology projects. Our contributions entail: (1) a case study demonstrating the use of the Diverse Voices method to improve a tech policy document for the Washington State court system; (2) for public interest technology, a model for public engagement around tech policy that foregrounds participation of experiential experts, as well as the conditions necessary to ensure concerns raised are both heard and acted upon; (3) facilitation techniques and skills for enabling diverse stakeholder groups to express their concerns around responsible computing systems; and (4) revised and expanded access to justice technology principles to support more inclusive justice.
عرفت المملكة المغربية، شأنها شأن العديد من دول العالم، خلال فترة الإغلاق الصحي، تزايد اعتماد المحاكم على تكنولوجيا الفيديوكونفرنس من أجل تسهيل مثول المتهمين عن بعد خلال جلسات المحاكمات؛ من أجل ضمان استمرار المرفق القضائي، في محاولة للوفاء بحق المتهم في محاكمة تحترم الضمانات الأساسية، وعلى الخصوص المحاكمة بأجل معقول. يهدف البحث إلى مقاربة مختلف الانشغالات القانونية والقضائية التي تطرحها تقنية الفيديوكونفرنس المستعملة في جلسات المحاكمة عن بعد، وبالنتيجة التأسيس المتين والواضح لأي قرار يهم التخلي عن الجلسات التقليدية، والتوجه مستقبلا، بشكل مباشر، نحو الجلسات عن بعد. أخذًا بعين الاعتبار الطبيعة الخاصة للموضوع، الذي يتداخل فيه ما هو قانوني مع ما هو تكنولوجي، واجتماعي، ونفسي، اعتمد الباحث في هذه الدراسة على منهج تحليلي، يستند بالأساس على تحليل نتائج دراسات حول تأثير الفيديوكونفرنس، أنجزت في العديد من المجالات العلمية، وعلى ملاحظة واقع استخدام هذه التقنية في المحاكم المغربية، في محاولة للإحاطة الشاملة بالأثر الذي يحدثه هذا الواقع على المحاكمة. توصل البحث إلى عدة نتائج، تتمثل أهمها في عجز تقنية الفيديوكونفرنس عن نقل صورة محايدة وشفافة للمتهم الماثل عن بعد، وهو ما يؤثر على حقه في دفاع فاعل وملموس. أكثر من ذلك، تسهم التقنية الأخيرة في إضعاف المبادئ الأساسية للمحاكمة وعلى رأسها الحضور والمشافهة، وهو ما ينعكس سلبًا على عدالة وإنصاف المحاكمة الجنائية.
Resumo Este artigo é fruto de uma pesquisa de cunho bibliográfico que teve como objetivo entender os impactos decorrentes do uso da videoconferência nas audiências de custódia no Brasil. Para tanto, fez-se, inicialmente, um balanço sobre essas audiências, sete anos após o seu início, apontando para seus principais problemas e desafios no que toca à tomada de decisão, ao combate e à prevenção à tortura e à proteção social. Em seguida, refletiu-se sobre a virtualização das audiências criminais em geral, trazendo dados secundários de pesquisas empíricas realizadas nos Estados Unidos (país no qual essa prática está sedimentada há algum tempo) que apontam para as dificuldades que trouxeram, sobretudo para os acusados e para a defesa. Em um terceiro momento, passamos à problematização central do trabalho, isto é, o uso da videoconferência nas audiências de custódia, sugerindo que esse formato tem um grande potencial de vulnerar direitos básicos de custodiados e de esvaziar as finalidades centrais das audiências de custódia, especialmente a de controlar a atividade policial e prevenir a tortura.
The rapid increase in e-commerce transactions has led to the emergence of new dispute resolution models, e.g. online dispute resolution (ODR). Simultaneously, public courts embrace new information and communication technologies in order to overcome the shortcomings of the public court system. Technological redress is more and more often sought within the private regimes of e-commerce instead of through public courts. But what exactly does this shift to technology in dispute resolution entail? In this book Koulu examines the multifaceted phenomenon of dispute resolution technology, using private enforcement as an example, and the impact it has on justifying dispute resolution. The implementation of technology in dispute resolution reveals the hidden justificatory narratives of procedural law and thus provides possibilities for their critical examination. Koulu argues that the privatisation of enforcement – as it is enabled by different forms of technology from the direct enforcement of e-commerce market leaders to self-executing smart contracts in the blockchain – brings the inherent violence of law out into the open. This increase in private enforcement, in turn, challenges the nationstate’s monopoly on violence, which has traditionally formed the main source of justification for dispute resolution and the enforcement of judicial decisions. After examining the possibilities of finding justification for private enforcement from other sources, e.g. from private autonomy or from human rights discourse, Koulu claims that private enforcement constitutes a new grey area of conflict management. Koulu’s doctoral dissertation gives unique insight into contemporary debates both in global procedural law and law and technology studies.
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.
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.
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.
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.
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.
Obtained physical measurements and subjective ratings from 80 undergraduates of various facial features for 20 adult male stimulus faces, and these faces were also rated on 5 personality dimensions, physical attractiveness, age, and "babyfacedness" by Ss, to investigate components and consequences of a babyface. The personality dimensions were designated as warm–cold, honest–dishonest, irresponsible–responsible, kind–cruel, and naive–shrewd; physical measurements included narrow–wide nose, full–thin cheeks, close set–wide set eyes, narrow–broad chin, low–high eyebrows, angular–soft face, long–short nose, high–low forehead, round–narrow eyes, small–large eyes, and not attractive–attractive designations. Results show that large, round eyes, high eyebrows, and a small chin yielded the perception of a babyish facial appearance. A weighted linear composite derived from the measures of eye size and chin width accounted for 57% of the variance in ratings of babyfacedness. Both measured composite and subjective babyfacedness ratings were positively correlated with perceptions of the stimulus person's naivete, honesty, kindness, and warmth. Findings suggest that the adaptive value of recognizing natural covariations between certain appearance cues and behavioral affordances may provide an explanation for appearance-based stereotyping. (27 ref) (PsycINFO Database Record (c) 2012 APA, all rights reserved)