The report noted that the pandemic has prompted many judges to conduct “nonessential proceedings” via video or phone. Many are continuing this practice even as courts have reopened. Further, public health concerns have led some legal services providers and other advocates to oppose in-person courtroom proceedings while some judges urge the expanded and permanent use of remote technology. The question remains whether a remote proceeding is fair.
The evidence suggests that it may not be.
A 2008 analysis of more than 645,000 felony bail hearings in Cook County, Illinois, between 1991 and 2007 found that, after courts began using closed circuit television to give defendants a telepresence in court, bond amounts rose 51% in bail proceedings using video technology. For some types of charges, it increased 90%. During the same time, bond amounts for defendants appearing in person did not change. The study was prepared in connection with a class action lawsuit seeking to force a return to live bail hearings.
The authors of the study pointed out several factors that might have influenced the different outcomes. The picture quality was poor — black and white with poor contrast that made darker-skinned defendants difficult to see — and the camera angle gave defendants the appearance of avoiding eye contact. Further, the physical separation of attorney and client made it difficult for attorneys to gather information before the hearing or consult with a client during the hearing. There also was a question of whether appearing via video diminished a person’s believability.
Another study examined video technology in the context of immigration proceedings as it has been commonly used for decades. During the final three months of 2019, one out of six final hearings in an immigration case was held via video. Such use of video technology in immigration proceedings is specifically authorized by statute even without the immigrant’s consent.
Examining almost 154,000 immigration cases adjudicated on the merits in fiscal years 2011 and 2012, the study found that immigrants were more likely to be deported when their proceedings were held using video technology. However, this was not because the immigration judge was more likely to deny the claims when video was used. Rather, immigrants whose proceedings used video were less likely to take advantage of procedures that might help them.
Thus, detained immigrants who appeared in person were 90% more likely to request relief, 35% more likely to be represented by an attorney, and 6% more likely to apply for voluntary departure instead of deportation, even after controlling for other factors that might influence the outcome.
Among the immigrants who actually applied for various forms of relief, there was no statistically significant difference in the outcome after controlling for other factors. One reason given for this was that immigrants appearing via video faced logistical challenges such as having to mail in an application for relief in advance rather than simply handing it to the judge during the hearing. They also had difficulty communicating effectively with their attorneys or even understanding what was happening in the hearing.
One study of child witnesses testifying via video and in-person in sex abuse cases using actors and mock juries found that the children were seen as less honest, intelligent and attractive when testifying via video. This raises questions about whether video testifying disadvantages litigants by making witnesses seem less credible. A similar study in Sweden had similar results.
A 2007 study on the use of video technology in Montana found that it helped legal aid organizations serve lightly populated parts of the state, opening up greater possibilities for pro bono representation. The study endorsed the use of video technology but urged caution in using it, noting that there were cases in which its use was inappropriate and left many unanswered questions about its use.
This writer has twice been required to use remote technology, over his objection, in pro se proceedings reaching a final adjudication. Both times, the presiding official refused to require that the opposing party also appear using the same technology as requested to ensure a level playing field. This writer felt marginalized and easily ignored during the proceedings—both of which had unfavorable outcomes—leaving him skeptical about the fairness and justice in using remote technology in court, especially if one party is forced to use it while the other is allowed to appear in person.
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