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Virtual justice and the future of courts

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An article by Professor Meredith Rossner, Centre for Social Research and Methods, ANU

There have been many remarkable and unexpected things about 2020.  One such development is the relative ease with which courts around the world, and judicial officers in particular, adapted to the new world of online courts and remote hearings during the COVID-19 pandemic.  It has certainly not been perfect, but a long-held scepticism about the use of audio-visual links (AVL) in courts has given way to a pragmatic and in some instances enthusiastic embrace of new technologies necessary to keep courts running.[1]  Courts have largely been able to get through their lists, remain sites of open justice, and promote procedural fairness.[2] In many jurisdictions, justice processes are slowly moving back into physical courtrooms.  However, it is likely that virtual technologies will continue to be a central element of courts of the future.

Remote technology has long been a feature of many courtrooms.  Prior to COVID-19, witnesses, defendants, and asylum seekers regularly appeared on screens in a courtroom, via video links to secure witness suites, police custody, prison, or immigration detention facilities. Judges have also appeared remotely at court, for instance in the Northern Territory where Supreme Court Judges sometimes conduct preliminary hearings in Alice Springs without leaving their courtroom in Darwin.  These developments have in some instances impacted the nature of judicial work.[3]

There is a growing body of social science research into the procedural and substantive impacts of remote appearances.  On the one hand, AVL has clearly enabled access to justice and enhanced participation for some.  For example, research on remote testimony for vulnerable witnesses suggests that the mode of delivery does not adversely impact mock-juror decision making,[4]  while improving the design and the quality of the remote technology can increase mock juror perception of witness credibility.[5] 

At the same time, research from the UK and the US suggests that both criminal defendants and asylum seekers may be at a disadvantage when they appear remotely.  An early experiment in video-link bail hearings in Chicago was abandoned after it was shown to significantly disadvantage defendants.[6]  This was partially due to poor quality technology that made effective communication with legal counsel nearly impossible. In Australia, qualitative research about defendants’ experience of remote testimony suggests that many defendants find the experience confusing and alienating.[7]   

However, I suspect there is reason to be more optimistic about the next generation of court technology.  To start with, there is a key design difference between early AVL and the situation for many during COVID-19.   In earlier AVL models, all the court players were co-located in the same physical room, while one participant appeared remotely on a screen.  In the current configuration, all participants are ‘remote’ in that they meet in a shared virtual space, each participant appearing gallery-style on a screen (such as the design of Microsoft Teams or Zoom).  The courtroom no longer has material form, and there is less potential for the single remote participant to feel that they are not ‘present’ in the courtroom. 

Courts have long been viewed as civic spaces where principles of democracy, the rule of law, and state power are communicated through the built environment, procedures and customs.  As courts have evolved online, we are forced to think deeply about how symbol, procedure, and ritual are communicated in a virtual space.  I suggest that moving courts to a virtual space presents both challenges and opportunities for improving practice. 

With colleagues I have been researching the new generation of virtual courts, including a recent pilot of virtual hearings with the UK Ministry of Justice in select Civil, Family, and Tax matters.[8]  While implemented before the pandemic, these hearings were similar to courts during COVID-19, in that participants logged into a web-based virtual court where each user appeared in a box on a screen (the judge sat in an empty courtroom with a camera on the bench and a coat of arms behind them).  Claimants, defendants, and appellants found hearings easy to navigate and reported that the hearing was suitably formal.  Most judges reported that virtual hearings were a suitable alternative to in-person hearings, at least for these types of cases (which were relatively straightforward and did not involve complex evidence).  Judges recognised that they needed to make slight adjustments to the way they managed a virtual hearing to ensure effective participation. For instance, they spent more time at the beginning of a hearing introducing parties and explaining what would happen.  They also regularly used people’s names when they spoke so that turn-taking rules could easily be followed.  These small changes to the everyday management of a hearing made a big difference to the users. 

Currently, virtual court participants generally see themselves and other participants arrayed in boxes on a single screen.  A more immersive setting might enhance the design of the court, involving multiple screens (including separate screens for documents), camera angles, and multidirectional speakers to simulate eye contact and audio direction.  In 2016 we demonstrated such a set up to legal practitioners at the Queensland Supreme Court in Brisbane, followed by a mock-juror study of a simulated criminal trial in an immersive virtual court.[9]   We found that under such conditions, appearing by video did not increase the likelihood of a guilty verdict.  Rather, a defendant appearing alone in a dock in the courtroom resulted in a higher chance of a guilty verdict. We conclude that a well-designed virtual court can communicate a sense of equality and shared experience among remote participants. 

In a virtual court, it is clear that the technology has to be high quality and it is inevitable that this will continue to improve.  But moving courts online also requires us to reimagine the design, staging, and ritual dynamics of a hearing.  This has come intuitively to many as we have adjusted to the new normal of life online. This year has given us an opportunity to further reflect on how we reimagine courts of the future.

   

[1] The Judicial College of Victoria is currently maintaining a comprehensive website documenting the different practices across all jurisdictions in response to COVID-19, https://www.judicialcollege.vic.edu.au/resources/coronavirus-and-courts.

[2] Rossner et al. (forthcoming) ‘Justice reimagined:  challenges and opportunities with implementing virtual courts.’ Current Issues in Criminal Justice.

[3] Anne Wallace et al. (2018) 26 (1) ‘Judicial engagement and AV links: judicial perceptions from Australian courts.’  International Journal of the Legal Profession, 51-67.

[4] Louise Ellison and Vanessa Munro (2014) 23(1)  ‘special’ delivery? Exploring the impact of screens, live-links and video-recorded evidence on mock juror deliberation in rape trials.Social & Legal Studies, 3-29.

[5] Davit Tait et al. (2013) Gateways to Justice:  Design and Operational Guidelines for Remote Participation in Court Proceedings.

[6] Shari Diamond et al., ‘Efficiency and cost: The impact of videoconferenced hearings on bail decisions’ (2010) 100(3) The Journal of Criminal Law and Criminology 869-902.  For similar findings with UK remote criminal hearings and US immigration detention hearings and See also Matthew Terry, et al. Virtual court pilot outcome evaluation. (2010); Ingrid Eagly, ‘Remote Adjudication in Immigration’ (2015) 109 Northwestern University Law Review 934.

[7] Carolyn McKay ‘Video links from prison: court “appearance” within carceral space’ (2015) 14(2) Law, Culture and the Humanities 242-262.

[8] Meredith Rossner and Martha McCurdy (2020) Final Report: Video Hearings Process Evaluation (Phase two); See also Meredith Rossner and Martha McCurdy (2018) Implementing Video Hearings (Party to State): A Process Evaluation.

[9] Tait et al. Towards a Distributed Courtroom (2017).