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Promise and Peril as Courts Go Virtual Amid Covid-19

Many courts are holding remote proceedings to protect health, but they must be careful not to jeopardize justice along the way.

Courts at all levels have star­ted hold­ing remote proceed­ings as a way to continue their work during the coronavirus pandemic. In a first, the Supreme Court conduc­ted oral argu­ments over the phone and made the live audio avail­able to the public. In the lower courts, nearly every juris­dic­tion is encour­aging or requir­ing judges to hold certain proceed­ings by phone or video. This kind of resi­li­ence is import­ant, but courts must be care­ful they’re not jeop­ard­iz­ing justice along the way.

Research shows that hold­ing hear­ings and trials by video feed can harm parties appear­ing remotely. Courts must work closely with public defend­ers, civil legal service providers, and others in the justice system to develop prac­tices that protect against these pitfalls. Other­wise, courts may unne­ces­sar­ily put people’s rights at risk.

Take, for example, the impact of remote hear­ings in immig­ra­tion courts, which even before the pandemic, held one of every six hear­ings by video. Recent stud­ies have found that indi­vidu­als appear­ing by video would have more likely avoided deport­a­tion or been gran­ted asylum if they had been phys­ic­ally present in the courtroom.

In crim­inal cases as well, research­ers have docu­mented harms from video hear­ings. When Chicago began hold­ing bail hear­ings for certain offenses by video, one study found that judges set bail substan­tially higher. In other stud­ies, mock jurors found witnesses who test­i­fied remotely less cred­ible than those who test­i­fied in person.

It’s not hard to see how video hear­ings can change court outcomes. Video appear­ances can make it more diffi­cult for clients to commu­nic­ate with their attor­neys, and tech­no­logy limits import­ant nonverbal commu­nic­a­tion. Resource dispar­it­ies can also affect the qual­ity of a parti­cipant’s inter­net connec­tion and appear­ance in a video feed.

Even seem­ingly mundane tech glitches can substan­tially under­mine the fair­ness of video proceed­ings. A 2017 report on immig­ra­tion courts commis­sioned by the Depart­ment of Justice found that “Faulty [video tele­con­fer­en­cing] equip­ment, espe­cially issues asso­ci­ated with poor video and sound qual­ity, can disrupt cases to the point that due process issues may arise.”

To be sure, remote tech­no­logy has the poten­tial to be a boon to trans­par­ency and access to justice more gener­ally. In Montana, for example, the use of video court appear­ances enabled legal aid organ­iz­a­tions to serve previ­ously under­served parts of the state. In Nebraska, the court system has used video to increase the avail­ab­il­ity of inter­pret­ers for non-English speak­ing defend­ants. And in the current Covid-19 crisis, there are people now home with their famil­ies who may have still been detained had remote proceed­ings not been avail­able.

But as trial courts adopt new tech­no­lo­gies amid the ongo­ing pandemic, they must consider the poten­tial down­sides of video hear­ings before pursu­ing longer-term shifts toward remote proceed­ings.

No one will have a better sense of the bene­fits and risks of remote tech­no­lo­gies than affected communit­ies and those who repres­ent them. In New York, for example, a coali­tion of legal service providers and other community groups recently wrote to the state’s chief admin­is­trat­ive judge about their concerns that virtual appear­ances could adversely impact thou­sands of self-repres­en­ted litig­ants in cases about crucial matters like hous­ing.

In light of unequal access to high-speed inter­net and other obstacles, the coali­tion asked the court system not to require self-repres­en­ted litig­ants to appear virtu­ally unless those indi­vidu­als volun­teered to do so. For cases that must move forward before courts reopen, they urged the courts to allow self-repres­en­ted litig­ants to join hear­ings by phone without video, and not to penal­ize anyone who misses a sched­uled virtual appear­ance.

Faced with an unpre­ced­en­ted public health crisis, many courts have been lead­ers in the effort to safe­guard the health of their communit­ies. Remote tech­no­lo­gies have buoyed the justice system — allow­ing courts to both limit the number of people coming through their doors and keep essen­tial oper­a­tions running. But if courts are going to rely on these tech­no­lo­gies in the longer term they should seek guid­ance from those in the justice system who know their short­com­ings too well, lest those buoys become anchors.