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.