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Remote court is now in session. But will defendants get a fair trial?

Holding virtual hearings is becoming increasingly necessary as the pandemic rages on. But the jury’s still out on how remote court impacts people involved in legal cases.

Remote court is now in session. But will defendants get a fair trial?
[Photos: Tim Mossholder/Unsplash; Derek Jensen/Wikimedia Commons]
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For a long time, Judge Michael Christofeno just didn’t see a place for online hearings in his courtroom.

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“I needed to see people in person in my courtroom or I wasn’t going to be able to have the capability to get a sense of how they’re testifying, their demeanor, whether they’re telling the truth or not, whether they’re being candid with the court,” says Christofeno, a circuit court judge in Elkhart County, Indiana. He was also concerned about operating and maintaining control of hearings in an unfamiliar medium.

But the judge’s opinion changed when the county looked to reopen courts that had been largely shut down by the coronavirus pandemic. It’s been a problem across the country. The New York Times recently reported that criminally accused people have been languishing in New York jails, in some cases contracting the virus, while only a handful of trials have taken place during the pandemic. Even participants in civil cases had been left anxiously awaiting their days in court, Christofeno says.

“You’ve got divorce cases, and people want to get on with their lives, and you can’t be hunkered down not conducting court forever,” he says.

The Elkhart County Courthouse in Goshen, Indiana [Photo: courtesy of Cisco]
Amid virus concerns, the Elkhart County court system suspended trials and many hearings beginning in mid-March. Historically, criminal proceedings have required corrections officials to transport dozens of incarcerated people to court each week for hearings, and even civil cases could draw crowds of friends and family members of litigants to the courthouse—all of which are risky situations for viral transmission.

Elkhart County initially tried holding hearings over the phone, but found that they took more than twice as long as in-person ones, quickly creating a backlog. Judges also objected to not being able to actually see and connect with the people who had cases before them.

In June, the county courts began to conduct hearings through videoconference. To do so, officials turned to Cisco, maker of Webex video conferencing tools and high-end telepresence software, to install cameras and other equipment in the courtroom. The tech company’s Connected Justice system, which was designed specifically for remote court, includes in-courtroom cameras to capture witnesses and evidence, file- and screen-sharing for documents, and breakout rooms for unrecorded attorney-client conversations or sidebars with the judge. Adopting the software enabled the county’s civil, family law, and even some pretrial criminal proceedings to take place with most of the participants connecting remotely.

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In Elkhart and other jurisdictions, not all proceedings have gone remote. For criminal trials, state and federal laws are generally considered to protect the right to an in-person trial. “There’s a right to confrontation of your accusers that’s enshrined in the Constitution in the Sixth Amendment,” says Locke Bowman, executive director of the Roderick and Solange MacArthur Justice Center at Northwestern University.

Even for those trials, Elkhart County has relied on the Connected Justice system. To protect against the virus, jurors are positioned around the courtroom so they are properly distanced from judges, witnesses, and one another. They’re then equipped with iPads that let them use Cisco’s software to digitally examine evidence as well as access the courtroom’s cameras, enabling them to zoom in to see the faces of people testifying.

[Photo: courtesy of Cisco]
Elkhart County is Cisco’s first client for its Connected Justice system. It’s one of several tools, including a product for legislatures to meet and vote remotely, that the company has promoted during the pandemic. In many cases, the technology that courts use for remote hearings is not built for that purpose. Other courts around the world have formally or informally switched many proceedings to a number of garden-variety videoconferencing tools, including Zoom, Microsoft Teams, and Google Hangouts. As of now, it is far from standardized, varying from state to state, county to county, and sometimes even from judge to judge.

However, many officials and attorneys say moving online is a necessity if court hearings are going to proceed during the pandemic, particularly to safeguard people who are especially vulnerable to the virus. “As a general matter, I’m leery of virtual court, but given the circumstances right now, I think it’s totally necessary, especially in this new surge,” says Amitai Heller, a disability rights attorney practicing in Louisiana.

But remote court has never been tried before on so large a scale. The effect of going virtual for people in the court system is still largely unknown, especially because they’re that much more removed from judges and even their own attorneys. Some previous studies have suggested there are worse outcomes for some court participants when they appear by video, including defendants at bail hearings and people involved in immigration proceedings.

“I think a lot of the power our clients have is looking a judge in the eye and having a judge have to look them in the eye and see what they’re going through, and it’s just not the same when they’re on video,” says Hannah Adams, a staff attorney at Southeast Louisiana Legal Services, a civil legal-aid organization.

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The long-standing U.S. digital divide that affects who can comfortably work, attend school, and connect with family while practicing social distancing also applies to remote court. Right now, finding access to a quality internet connection and a comfortable place to use it is easier for some people than others, potentially influencing who can easily communicate with judges and attorneys.

“We’re as anxious as the customers are to understand what the results of this will be—that data is going to be extremely important to society as a whole,” says Daniel Stewart, senior justice adviser at Cisco, who predicts scientific studies of the results of remote court are still at least a few months away.

In the case of court proceedings, the quality of one’s internet connection can potentially affect who can efficiently advocate for themselves in the virtual courtroom, even now as judges seek to be understanding of everyone’s circumstances. Adams says at least one justice of the peace in Louisiana has been dispatching a constable with an iPad to the homes of people who’d otherwise have trouble connecting to hearings, but the practice isn’t standardized throughout the state.

“The actual ability to connect without glitches, without lagging, does create different tiers of credibility I would imagine,” says Heller, the disability rights attorney. “Or just your ability to have a narrative that’s coherent and continuous—that’s really hard when you’re chopping up all the time.”

In many cases, the pandemic is putting a spotlight on inequities that already existed in the courts—and in society at large. It’s highlighted the injustice of the bail system, where people can be held in jails filled with COVID-19 cases when they haven’t been convicted of a crime simply because of their inability to post bail.

Videoconferencing certainly won’t erase all of the system’s problems. But courtroom participants and technology vendors say that some decisions can help make remote proceedings more fair. Cisco’s Stewart says that some judges wanted to confirm that they’d be able to use blurred or generic backgrounds to protect the privacy of their own homes and those of litigants. And in a videoconference demonstration using a vacuum cleaner within his workspace, Cisco senior vice president Jeetu Patel showed how the software is adept at filtering out background noise automatically. Using Cisco’s technology or other tools that easily support such features could also help hide the details of participants’ personal lives that might prejudice judges or simply be embarrassing in court.

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Judge Christofeno says he believes the remote system can actually boost access to justice by making it easier for participants to appear. People no longer have to take a day off from work and find transportation in order to appear for a hearing that lasts less than half an hour. That’s a problem that existed long before the pandemic, when people were forced to choose between work and avoiding the financial losses or even criminal charges that can come with missing mandatory hearings.

“The way we did it before was really disruptive in terms of how we interacted with citizens’ lives,” says Matthew Dietz, Elkhart County’s IT director.

Even lawyers appearing before multiple judges no longer have to spend time rushing from courtroom to courtroom or even county seat to county seat. In fact, the Elkhart courts are conducting more hearings now than they could prior to the pandemic, letting them clear the backlog from before the switchover. Christofeno believes that allowing people to connect by videoconference from wherever they are can make court more accessible. For that reason, he says, he imagines that some remote proceedings will continue even as pandemic restrictions ease.

“It shouldn’t just be that you have a bunch of money so you get to come to court and see Judge Christofeno,” he says.

Once people begin to gather in person once again, some participants may welcome the continued ability to appear for quick hearings from their homes or workplaces rather than making a physical trek to the local courthouse. For some types of hearings, though, it seems likely that many attorneys will advocate for themselves and their clients to return to the physical courtroom when they feel it’s safe to do so. And certain court proceedings—especially criminal trials—will likely never move online, since the principle of being able to confront and cross-examine opposing witnesses in person is simply seen as too vital.

“I think it would be insane to imagine that a jury trial could be conducted remotely by Zoom or some other technology,” says Bowman of Northwestern. “That confrontation in my judgment isn’t full and complete in the absence of physical presence—the opportunity to really force the person to come into a public setting and sit down and provide their evidence and be subject to public cross-examination.”

About the author

Steven Melendez is an independent journalist living in New Orleans.

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