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The Impact of Video Proceedings on Fairness and Access to Justice in Court

Increasing use of remote video technology poses challenges for fair judicial proceedings. Judges should adopt the technology with caution.

Published: September 10, 2020
Remote court proceeding
RJ Sangosti/MediaNews Group/The Denver Post via Getty

Introduction

The Bren­nan Center has also developed a set of prin­ciples stake­hold­ers can use as they develop policies for the use of remote court proceed­ings, avail­able here.

The Covid-19 pandemic has disrup­ted court oper­a­tions across the coun­try, prompt­ing judges to post­pone nones­sen­tial proceed­ings and conduct others through video or phone. foot­note1_7yc1y64 1 Bren­nan Center for Justice, Courts’ Responses to the Covid-19 Crisis, last updated Septem­ber 10, 2020, https://www.bren­nan­cen­ter.org/our-work/research-reports/courts-responses-covid-19-crisis.  Even as courts have begun to reopen, many are also continu­ing or test­ing new ways to expand the use of remote tech­no­logy. foot­note2_cmrpyff 2 Daniel Siegel, “Miami, Orlando Head­line Fla. Courts’ Remote Trial Exper­i­ment,” Law360, June 4, 2020, https://www.law360.com/articles/1279653/miami-orlando-head­line-fla-courts-remote-trial-exper­i­ment.; and Jake Bleiberg, “Texas Court Holds First US Jury Trial via Video­con­fer­en­cing,” Asso­ci­ated Press, May 22, 2020, https://abcnews.go.com/Health/wireStory/texas-court-holds-us-jury-trial-video­con­fer­en­cing-70825080.  At the same time, public health concerns are lead­ing some legal services providers and other advoc­ates to oppose the return to in-person proceed­ings. foot­note3_koqxai4 3 Rocco Para­s­can­dola and Molly Crane-Newman, “Lawyers Fear Sudden Return to NYC Court­houses Next Week will Spread Coronavirus,” Daily News, July 8, 2020, https://www.nydailynews.com/new-york/nyc-crime/ny-courts-reopen­ing-early-outrage-lawyers-advoc­ates-20200708–42rp­mgy­hyjc2jphr­qo­hwd­syy6q-story.html.  Beyond the current moment, several court lead­ers have also sugges­ted that expan­ded use of remote tech­no­logy should become a perman­ent feature of our justice system. foot­note4_ardabjf 4 Lyle Moran, “How Host­ing a National Pandemic Summit Aided the Nebraska Courts System with its Covid-10 Response,” Legal Rebels Podcast, May 13, 2020, https://www.abajournal.com/legalrebels/article/rebels_podcast_epis­ode_052.; and Katelyn Kivel, “How the Coronavirus Revo­lu­tion­ized Michigan’s Courts,” The Gander News­room, July 14, 2020, https://gandernews­room.com/2020/07/14/coronavirus-revo­lu­tion­ized-courts/.

Remote tech­no­logy has been a vital tool for courts in the midst of a public health crisis. But the use of remote tech­no­logy — and its possible expan­sion — also raises crit­ical ques­tions about how litig­ants’ rights and their access to justice may be impacted, either posit­ively or negat­ively, and what courts and other stake­hold­ers can do to mitig­ate any harms.

This paper collects and summar­izes exist­ing schol­ar­ship on the effects of video tech­no­logy in court proceed­ings. Federal courts, immig­ra­tion courts, and state courts have long used video tech­no­logy for certain kinds of proceed­ings. foot­note5_b1ygksy 5 Shari Seidman Diamond et al., “Effi­ciency and Cost: The Impact of Video­con­fer­enced Hear­ings on Bail Decisions,” Journal of Crim­inal Law and Crim­in­o­logy 100 (2010): 877–878, 900; Ingrid V. Eagly, “Remote Adju­dic­a­tion in Immig­ra­tion,” North­west­ern Univer­sity Law Review 109 (2015): 934; and Mike L. Briden­back, Study of State Trial Courts Use of Remote Tech­no­logy, National Asso­ci­ation for Presid­ing Judges and Court Exec­ut­ive Officers, 2016, 12, http://napco4­courtlead­ers.org/wp-content/uploads/2016/08/Emer­ging-Court-Tech­no­lo­gies-9–27-Briden­back.pdf.  While the avail­able schol­ar­ship on the use of video proceed­ings is limited, exist­ing research suggests reason for caution in expand­ing the use of these prac­tices, as well as the need for further research on their poten­tial effects.

For Example:

  • One study of crim­inal bail hear­ings found that defend­ants whose hear­ings were conduc­ted over video had substan­tially higher bond amounts set than their in-person coun­ter­parts, with increases ranging from 54 to 90 percent, depend­ing on the offense. foot­note6_dpt74fn 6 Diamond et al., “Effi­ciency and Cost,” 893.
  • A study of immig­ra­tion courts found that detained indi­vidu­als were more likely to be depor­ted when their hear­ings occurred over video confer­ence rather than in person. foot­note7_xyuqklj 7 Eagly, “Remote Adju­dic­a­tion,” 966; and Frank M. Walsh and Edward M. Walsh, “Effect­ive Processing or Assembly-Line Justice – The Use of Video­con­fer­ence­ing in Asylum Removal Hear­ings,” Geor­getown Immig­ra­tion Law Journal 22 (2008): 271–72.
  • Several stud­ies of remote witness testi­mony by chil­dren found that the chil­dren were perceived as less accur­ate, believ­able, consist­ent, and confid­ent when appear­ing over video. foot­note8_r5oxetb 8 Holly K. Orcutt et al., “Detect­ing Decep­tion in Chil­dren’s Testi­mony: Fact­find­ers’ Abil­it­ies to Reach the Truth in Open Court and Closed-Circuit Trials,” Law and Human Beha­vior 25 (2001): 357–8, 366. However, it is import­ant to note that these stud­ies are simu­lated exper­i­ments and not obser­va­tions of actual court proceed­ings, so outcomes might have differed if video proceed­ings were used and examined in an actual court hear­ing. Also worth noting is that the judge, bailiff, and attor­neys ques­tion­ing the chil­dren were in the room with the chil­dren testi­fy­ing; the chil­dren only appeared by CCTV to the mock jurors.
  • In three out of six surveyed immig­ra­tion courts, judges iden­ti­fied instances where they had changed cred­ib­il­ity assess­ments made during a video hear­ing after hold­ing an in-person hear­ing. foot­note9_p80zcq8 9 Govern­ment Account­ab­il­ity Office, Actions Needed to Reduce Case Back­log and Address Long-Stand­ing Manage­ment and Oper­a­tional Chal­lenges, 2017, 55, https://www.gao.gov/assets/690/685022.pdf.

Research also suggests that the use of remote video proceed­ings can make attor­ney-client commu­nic­a­tions more diffi­cult. For example, a 2010 survey by the National Center for State Courts found that 37 percent of courts using video­con­fer­en­cing had no provi­sions to enable private commu­nic­a­tions between attor­neys and their clients when they were in separ­ate loca­tions. foot­note10_pfzb­nmd 10 Eric Bellone, “Private Attor­ney- Client Commu­nic­a­tions and the Effect of Video­con­fer­en­cing in the Courtroom,” Journal of Inter­na­tional Commer­cial Law and Tech­no­logy 8 (2013): 44–45.  Remote proceed­ings can like­wise make it harder for self-repres­en­ted litig­ants to obtain repres­ent­a­tion and other forms of support by separ­at­ing them from the phys­ical court­house. A study of immig­ra­tion hear­ings found that detained immig­rants who appeared in person were 35 percent more likely to obtain coun­sel than those who appeared remotely. foot­note11_xgflxfs 11 Eagly, “Remote Adju­dic­a­tion,” 938.

At the same time, other research suggests that remote video proceed­ings may also enhance access to justice under some circum­stances. For example, a Montana study found that the use of video hear­ings allowed legal aid organ­iz­a­tions to reach previ­ously under­served parts of the state. foot­note12_h8tz10i 12 Richard Zorza, Video Confer­en­cing for Access to Justice: An Eval­u­ation of the Montana Exper­i­ment, Legal Services Corpor­a­tion, 2007, 1, 3, https://docplayer.net/3126017-Video-confer­en­cing-for-access-to-justice-an-eval­u­ation-of-the-montana-exper­i­ment-final-report.html.  Organ­iz­a­tions such as the Confer­ence of Chief Justices have called for the expan­ded use of video or tele­phone proceed­ings in civil cases, partic­u­larly for self-repres­en­ted and low-income litig­ants, as a way of redu­cing costs for those who, for example, may need to take time off work to travel to court. foot­note13_3rbuj3y 13 National Center for State Courts, Call to Action: Achiev­ing Civil Justice for All, 2016, 37–38 https://iaals.du.edu/public­a­tions/call-action-achiev­ing-civil-justice-all.

One chal­lenge in inter­pret­ing this research is that court systems hear a wide range of cases, both civil and crim­inal, and the use of video­con­fer­en­cing may pose widely dispar­ate chal­lenges and bene­fits for litig­ants in differ­ent types of cases. Courts are involved in adju­dic­at­ing everything from evic­tions to traffic viol­a­tions, from multi­mil­lion-dollar commer­cial disputes to felony cases. In some instances, litig­ants are detained in jails or deten­tion centers. In others, they may be self-repres­en­ted. Courts hold prelim­in­ary hear­ings, arraign­ments, settle­ment nego­ti­ations, schedul­ing confer­ences, argu­ments on legal motions, jury trials, and much more.

At its core, this review of exist­ing schol­ar­ship under­scores the need for broad stake­holder engage­ment in devel­op­ing court policies involving remote proceed­ings, as well as the need for more research and eval­u­ation as courts exper­i­ment with differ­ent systems.

End Notes

Impact of Video Proceedings on Case Outcomes

A hand­ful of stud­ies have directly assessed whether repla­cing certain in-person proceed­ings with video­con­fer­ences impacted substant­ive outcomes in crim­inal, civil, or immig­ra­tion proceed­ings. Several other stud­ies have sought to eval­u­ate the impact of using video on factors that are likely to affect substant­ive outcomes, such as cred­ib­il­ity assess­ments by juries or other fact­find­ers, and commu­nic­a­tion between attor­neys and their clients.

Video Proceed­ings and Substant­ive Outcomes

One study by law and psycho­logy professor Shari Seidman Diamond and coau­thors, published in the Journal of Crim­inal Law and Crim­in­o­logy, looked at the impact of using closed-circuit tele­vi­sion during bail hear­ings in Cook County, Illinois. The study found that judges imposed substan­tially higher bond amounts when proceed­ings occurred over video. foot­note1_jsmzb0o 1 Diamond et al., “Effi­ciency and Cost,” 897.

In 1999, Cook County began using closed-circuit tele­vi­sion for most felony cases, requir­ing defend­ants to remain at a remote loca­tion during bail hear­ings. A 2008 analysis of over 645,000 felony bond proceed­ings held between Janu­ary 1, 1991 and Decem­ber 31, 2007 found that after the closed-circuit tele­vi­sion proced­ure was intro­duced, the aver­age bond amount for impacted cases rose by 51 percent — and increased by as much as 90 percent for some offenses. By contrast, there were no stat­ist­ic­ally signi­fic­ant changes in bond amounts for those cases that contin­ued to have live bail hear­ings. foot­note2_8uqt8wh 2 Diamond et al., “Effi­ciency and Cost,” 896.  These dispar­it­ies persisted over time. The release of this study, which was prepared in connec­tion with a class action lawsuit chal­len­ging Cook County’s prac­tices, caused the county to volun­tar­ily return to live bail hear­ings. foot­note3_cmd6l9f 3 Diamond et al., “Effi­ciency and Cost,” 870.

The authors theor­ized several explan­a­tions for the differ­ence in bond amounts in Cook County. Among other things, they poin­ted to the picture qual­ity and the video setup, which gave the appear­ance that the defend­ant was not making eye contact. In addi­tion, they sugges­ted that the defend­ant’s remote loca­tion made it diffi­cult for their attor­ney to gather inform­a­tion in advance of the hear­ing or consult with their client during the hear­ing. The authors also poin­ted out that the video was in black and white, and that litig­ants with darker skin were diffi­cult to see on camera. Finally, they raised the ques­tion of whether some aspect of appear­ing in person affects a person’s believab­il­ity. foot­note4_powz7n3 4 Diamond et al., “Effi­ciency and Cost,” 884–85, 898–900.

Another study by law professor Ingrid Eagly looked at the use of video tech­no­logy to adju­dic­ate immig­ra­tion proceed­ings remotely, find­ing that detained respond­ents were more likely to be depor­ted when their proceed­ings occurred over video­con­fer­ence. foot­note5_7nar5yf 5 An earlier analysis by Frank and Edward Walsh in the Geor­getown Immig­ra­tion Law Journal like­wise found dispar­it­ies in outcomes in asylum cases. The study, which looked at fiscal years 2005 and 2006, found that “the grant rate for asylum applic­ants whose cases were held in person is roughly double the grant rate for the applic­ants whose cases were heard via [video].” Walsh and Walsh, “Effect­ive Processing,” 271. These differ­ences were stat­ist­ic­ally signi­fic­ant, and the authors found similar and stat­ist­ic­ally signi­fic­ant differ­ences when controlling for whether the applic­ant was repres­en­ted by coun­sel. However, accord­ing to Eagly, most immig­ra­tion hear­ings were not coded for whether they were conduc­ted in person or by video prior to 2007, under­cut­ting the reli­ab­il­ity of the find­ings. Eagly, 946. Nor did the study identify the basis by which some asylum applic­ants were desig­nated for video confer­ence, suggest­ing the possib­il­ity of confound­ing vari­ables. Never­the­less, the strik­ing differ­ence in asylum rates high­lights the need for further research.  Video hear­ings are now a common feature in immig­ra­tion court, and have been used regu­larly since the 1990s. foot­note6_d05eq9w 6 “Video Hear­ings in Immig­ra­tion Court FOIA,” Amer­ican Immig­ra­tion Coun­cil, last modi­fied August 11, 2016, accessed May 14, 2020, https://www.amer­ic­an­im­mig­ra­tion­coun­cil.org/content/video-hear­ings-immig­ra­tion-court-foia.  The use of video­con­fer­en­cing, even without the peti­tion­er’s consent, is specific­ally author­ized by stat­ute. foot­note7_urec8xq 7 See 8 U.S.C. § 1229a(b)(2)(A)(iii); see also 8 C.F.R. § 1003.25(c) (“An Immig­ra­tion Judge may conduct hear­ings through video confer­ence to the same extent as he or she may conduct hear­ings in person.”).  Accord­ing to the Trans­ac­tional Records Access Clear­ing­house Immig­ra­tion Center at Syra­cuse Univer­sity, from Octo­ber through Decem­ber 2019, one out of every six final hear­ings decid­ing an immig­rant’s case was held by video. foot­note8_ip91kdr 8 TRAC Immig­ra­tion, “Use of Video in Place of In-Person Immig­ra­tion Court Hear­ings,” Janu­ary 28, 2020, https://trac.syr.edu/immig­ra­tion/reports/593/.  Eagly examined outcomes for detained immig­rants in immig­ra­tion court, compar­ing those who parti­cip­ated via video to those who parti­cip­ated in person. foot­note9_5pyj05u 9 Eagly, “Remote Adju­dic­a­tion,” 933.  Eagly used a nation­wide sample of nearly 154,000 cases, in which immig­ra­tion judges reached a decision on the merits during fiscal years 2011 and 2012. foot­note10_nhuurzo 10 Eagly, “Remote Adju­dic­a­tion,” 960.

Eagly found what she described as a “para­dox”: detained immig­rants whose proceed­ings occurred over video were more likely to be depor­ted, but not because judges denied their claims at higher rates. Rather, these respond­ents were less likely to take advant­age of proced­ures that might help them. Detained indi­vidu­als who appeared in person were 90 percent more likely to apply for relief, 35 percent more likely to obtain coun­sel, and 6 percent more likely to apply only for volun­tary depar­ture, as compared to simil­arly situ­ated indi­vidu­als who appeared by video. These results were stat­ist­ic­ally signi­fic­ant, even when controlling for other factors that could influ­ence case outcomes. foot­note11_qt7tqpm 11 Among other things, Eagly controlled for the type of proceed­ing and charge, the respond­ent’s nation­al­ity, whether they are repres­en­ted by coun­sel, their judge, and the year the proceed­ings took place. Eagly, “Remote Adju­dic­a­tion,” 938.

At the same time, among those indi­vidu­als who actu­ally applied for vari­ous forms of relief, there was no stat­ist­ic­ally signi­fic­ant differ­ence in outcome after controlling for other factors. However, because video parti­cipants were less likely to seek relief or retain coun­sel, video cases were still signi­fic­antly more likely to end in removal. foot­note12_t7dp1gq 12 Eagly looked at two samples, a national sample and a subset of loca­tions that she called the Active Base Sample. She found that “in the National Sample, 80 percent of in-person respond­ents were ordered removed, compared to 83 percent of tele­video respond­ents. In the Active Base City Sample, 83 percent of in-person respond­ents were ordered removed, compared to 88 percent of tele­video respond­ents.” The dispar­it­ies in outcomes were stat­ist­ic­ally signi­fic­ant. Eagly, “Remote Adju­dic­a­tion,” 966.  Eagly argued that “[t]elev­ideo must there­fore be under­stood as having an indir­ect rela­tion­ship to over­all substant­ive case outcomes—one linked to the disen­gage­ment of respond­ents who are separ­ated from the tradi­tional courtroom setting.” foot­note13_q21kioi 13 Eagly, “Remote Adju­dic­a­tion,” 938.

Eagly relied on inter­views and court obser­va­tions to explore why video proceed­ings led to less engage­ment by respond­ents. She sugges­ted that respond­ents may have been less likely to parti­cip­ate fully in video proceed­ings due to logist­ical hurdles requir­ing advanced prepar­a­tion, such as the need to mail an applic­a­tion for relief in advance of the hear­ing, rather than bring­ing one to court and phys­ic­ally hand­ing over a copy. She also high­lighted the diffi­culties that video proceed­ings pose in allow­ing indi­vidu­als to commu­nic­ate effect­ively and confid­en­tially with their attor­ney. Finally, she found that respond­ents often found it diffi­cult to under­stand what was happen­ing during video proceed­ings, and that many perceived a video appear­ance as unfair and not a real “day in court,” an asser­tion which has also been made by the Amer­ican Bar Asso­ci­ation Commis­sion on Immig­ra­tion. foot­note14_06ysebu 14 Eagly, “Remote Adju­dic­a­tion,” 978, 984, 989. A 2019 report from the Amer­ican Bar Asso­ci­ation, which issued recom­mend­a­tions for reform­ing the immig­ra­tion system, argued that based on its 2010 find­ings, the use of video confer­en­cing tech­no­logy can under­mine the fair­ness of proceed­ings by making it more diffi­cult to estab­lish cred­ib­il­ity and thus argue one’s case. The report goes on to suggest limit­ing the use of video to nonsub­stant­ive hear­ings. See Amer­ican Bar Asso­ci­ation Commis­sion on Immig­ra­tion, 2019 Update Report: Reform­ing the Immig­ra­tion System, 2019, 18, https://www.amer­ic­an­bar.org/content/dam/aba/public­a­tions/commis­sion_on_immig­ra­tion/2019_reform­ing_the_immig­ra­tion_system_volume_1.pdf.

A few stud­ies have also examined the impact of video testi­mony on jury trials, with mixed results. One study by psycho­logy professor Holly Orcutt and coau­thors examined the impact of remote testi­mony by chil­dren in sexual abuse cases. The authors created a simu­la­tion involving a fake crime with chil­dren and an adult actor. The chil­dren then test­i­fied on their exper­i­ences within the exper­i­ment during a mock trial, using actors and mock jurors. foot­note15_y7xw2lf 15 Some chil­dren exper­i­enced the fake crime and some did not. In addi­tion, some chil­dren were asked to modify their testi­mony to falsely indic­ate that a crime had taken place. Orcutt et al., “Detect­ing Decep­tion in Chil­dren’s Testi­mony,” 343. The child witnesses test­i­fied either in person or via one-way closed-circuit tele­vi­sion. foot­note16_59za­1wq 16 Orcutt et al., “Detect­ing Decep­tion in Chil­dren’s Testi­mony,” 339–372.  

Orcutt found that when chil­dren test­i­fied via closed-circuit tele­vi­sion, the mock jurors rated them as less honest, intel­li­gent, and attract­ive, and concluded that their testi­mony was less accur­ate. Mock jurors were also less likely to vote to convict the defend­ant (accused by the child witness), when the child test­i­fied by closed-circuit tele­vi­sion. foot­note17_0hbir7k 17 Orcutt et al., “Detect­ing Decep­tion in Chil­dren’s Testi­mony,” 357, 363.  Thus, closed-circuit testi­mony “appeared to result in a more negat­ive view of child witnesses as well as a small but signi­fic­ant decrease in the like­li­hood of convic­tion [of the defend­ant].” foot­note18_cyk1q4k 18 Orcutt et al., “Detect­ing Decep­tion in Chil­dren’s Testi­mony,” 366.  However, after jurors delib­er­ated, there was no stat­ist­ic­ally signi­fic­ant impact of video versus live testi­mony on the verdict. foot­note19_0ppn­zsp 19 Orcutt et al., “Detect­ing Decep­tion in Chil­dren’s Testi­mony,” 358.  It is possible that study parti­cipants had a specific skep­ti­cism about remote testi­mony by chil­dren in abuse cases due to assump­tions about why a child might not testify in person. However, this study also raises the possib­il­ity that remote witness testi­mony is gener­ally less likely to be seen as cred­ible, disad­vantaging litig­ants and rais­ing fair­ness concerns in cases where testi­mony is likely to be crit­ical to a party’s case.

On the other hand, a series of stud­ies from the 1970s and 1980s based on reen­acted trials gener­ally found that video­taped trials had no impact on outcomes. For example, in a reen­acted trial involving an auto­mobile personal injury case, staffed by actors, there was no stat­ist­ic­ally signi­fic­ant differ­ence in the mean amount awar­ded by the jury, or in the jury’s reten­tion of inform­a­tion, between the in-person and video­taped trials. foot­note20_456c6pe 20 Gerald Miller, “Tele­vised Trials: How Do Juries React,” Judicature 58 (Decem­ber 1974): 242–246. The jurors in Miller’s study thought they were render­ing a verdict in an actual trial. A similar study like­wise found no stat­ist­ic­ally signi­fic­ant differ­ence in juror attri­bu­tions of negli­gence or the amount awar­ded by jurors in simu­lated video and in-person trials. The mode of present­ing expert witnesses did affect pre-delib­er­a­tion award, inform­a­tion reten­tion, and source cred­ib­il­ity, but not in a straight­for­ward manner. The plaintiff’s witness was more effect­ive in obtain­ing favor­able awards when he appeared live, while the defend­ant’s witness was more effect­ive in redu­cing the award (advantaging the defend­ant) when he appeared on video­tape. The study sugges­ted that “The most plaus­ible explan­a­tion for this differ­ence could be the vari­ations in the commu­nic­a­tion skills of the two witnesses across present­a­tional modes.” Gerald R. Miller, Norman E. Fontes, and Gordon L. Dahnke, “Using Video­tape in the Courtroom: A Four-Year Test Pattern," Univer­sity of Detroit Journal of Urban Law 55 (Spring 1978): 668. See also Gerald R. Miller, Norman E. Fontes, and Arthur Konopka, The Effects of Video­taped Court Mater­i­als on Juror Response (East Lans­ing: Michigan State Univer­sity Press, 1978).  However, several caveats apply. First, these stud­ies did not address the use of remote jurors, or jurors who inter­ac­ted with each other over video. foot­note21_s88t­ibr 21 For addi­tional research on simu­lated trials, see David F. Ross et al., “The Impact of Protect­ive Shields and Video­tape Testi­mony on Convic­tion Rates in a Simu­lated Trial of Child Sexual Abuse,” Law and Human Beha­vior, 18, (1994): 553–566; and Tania E. Eaton et al., “Child-Witness and Defend­ant Cred­ib­il­ity: Child Evid­ence Present­a­tion Mode and Judi­cial Instruc­tions,” Journal of Applied Social Psycho­logy, 31 (2001): 1845–1858. However, in these stud­ies, mock jurors watched video­tapes of trials involving either live or video­taped testi­mony, so their find­ings are of limited util­ity for compar­ing video­taped and live trials.  Also relev­ant is that the tech­no­lo­gies avail­able to conduct remote proceed­ings today are vastly differ­ent than those used in stud­ies in the 1970s and 80s. Finally, another limit­a­tion of these stud­ies is that they do not address how less than ideal tech­no­lo­gical condi­tions may impact court dynam­ics. For example, a study of immig­ra­tion courts by Booz Allen Hamilton for the Depart­ment of Justice determ­ined that tech­no­lo­gical glitches had disrup­ted cases to such an extent that due process concerns may arise. foot­note22_ruid4d0 22 Booz Allen Hamilton, Legal Case Study: Summary Report, 2017, 23, https://perma.cc/B3VS-FQAY.

Lastly, the Admin­is­trat­ive Confer­ence of the United States has stud­ied the use of video tele­con­fer­en­cing by federal exec­ut­ive agen­cies in admin­is­trat­ive hear­ings. Accord­ing to an analysis by the Bureau of Veteran Affairs, there was no evid­ence that video proceed­ings for veter­ans bene­fits adju­dic­a­tions had an impact on outcomes: “the differ­ence in grants [for veter­ans’ bene­fits claims] between video hear­ings and in-person hear­ings has been within one percent” over the five-year period preced­ing the 2011 report. foot­note23_us8t078 23 Funmi E. Olorun­nipa, Agency Use of Video Hear­ings: Best Prac­tices and Possib­il­it­ies for Expan­sion, Admin­is­trat­ive Confer­ence of the United States, 2011, 24, https://perma.cc/B3VS-FQAY.  The study also found that these hear­ings had increased productiv­ity for Veter­ans Law Judges and support­ing coun­sel by elim­in­at­ing the need for travel to and from hear­ings.

Other Effects on Litig­ants

Video and Percep­tions of Cred­ib­il­ity

In addi­tion to stud­ies that directly assess the rela­tion­ship between video proceed­ings and outcomes, such as convic­tion or deport­a­tion rates, other research has looked at whether video testi­mony by a witness has an impact on how they are perceived by fact­find­ers. Because cred­ib­il­ity determ­in­a­tions are often cent­ral to case outcomes, the effect of video appear­ance on cred­ib­il­ity has import­ant implic­a­tions for the over­all fair­ness of remote proceed­ings.

In addi­tion to the Orcutt study discussed previ­ously, several other stud­ies have looked at the impact of video testi­mony by chil­dren on their perceived cred­ib­il­ity in the context of sexual abuse cases, find­ing that video testi­mony had an impact on jurors’ percep­tions of the child’s believab­il­ity. For example, an analysis involving mock trials with actors where a child test­i­fied either in-person or via closed-circuit tele­vi­sion found that testi­mony over video lowered jurors’ percep­tion of a child’s accur­acy and believab­il­ity. foot­note24_2u1lloi 24 Gail S. Good­man et al., “Face-to-Face Confront­a­tion: Effects of Closed-Circuit Tech­no­logy on Chil­dren’s Eyewit­ness Testi­mony and Jurors’ Decisions,” Law and Human Beha­vior 22 (1998): 195–96.  Simil­arly, in a Swedish simu­la­tion where differ­ent jurors watched the child testi­mony either live or via video, jurors perceived the live testi­mony in more posit­ive terms and rated the chil­dren’s state­ments as more convin­cing than the video testi­mony. Live observ­ers also had a better memory of the chil­dren’s state­ments. foot­note25_rly2mjm 25 Sara Land­strom, “Chil­dren’s Live and Video­taped Testi­mon­ies: How Present­a­tion Mode Affects Observers’ Percep­tion, Assess­ment and Memory,” Legal and Crim­in­o­lo­gical Psycho­logy 12 (2007): 344–45.

Other research suggests that tech­no­lo­gical limit­a­tions may affect immig­ra­tion judges’ abil­ity to assess cred­ib­il­ity in video proceed­ings. For example, in a 2017 U.S. Govern­ment Account­ab­il­ity Office report on immig­ra­tion courts, judges in three of the six surveyed courts iden­ti­fied instances where they had changed cred­ib­il­ity assess­ments made during a video hear­ing after hold­ing a subsequent in-person hear­ing:

“For example, one immig­ra­tion judge described making the initial assess­ment to deny the respond­ent’s asylum applic­a­tion during a [video tele­con­fer­ence] hear­ing in which it was diffi­cult to under­stand the respond­ent due to the poor audio qual­ity of the [video tele­con­fer­ence]. However, after hold­ing an in-person hear­ing with the respond­ent in which the audio and result­ing inter­pret­a­tion chal­lenges were resolved, the judge clari­fied the facts of the case, and as a result, decided to grant the respond­ent asylum. Another immig­ra­tion judge repor­ted being unable to identify a respond­ent’s cognit­ive disab­il­ity over [video tele­con­fer­ence], but that the disab­il­ity was clearly evid­ent when the respond­ent appeared in person at a subsequent hear­ing, which affected the judge’s inter­pret­a­tion of the respond­ent’s cred­ib­il­ity.” foot­note26_f2xn­bjt 26 Govern­ment Account­ab­il­ity Office, Actions Needed to Reduce Case Back­log, 55.

Psycho­logy research also provides theor­et­ical support for the concern that indi­vidu­als who appear by video may face disad­vant­ages. For example, psycho­logy professor Sara Land­strom, who stud­ied video testi­mony by chil­dren, has described the “vivid­ness effect,” whereby testi­mony that is more emotion­ally inter­est­ing and prox­im­ate in a sens­ory, temporal, or spatial way is gener­ally perceived by observ­ers as more cred­ible and is better remembered. Land­strom notes, “it can be argued that live testi­mon­ies, due to face-to-face imme­di­acy, are perceived [by jurors] as more vivid than, for example, video-based testi­mon­ies, and in-turn are perceived more favour­ably, considered more cred­ible and are more memor­able.” foot­note27_2oi0w8f 27 Land­strom, “Chil­dren’s Live and Video­taped Testi­mon­ies,” 335. See also Richard E. Nisbett and Lee Ross, L. Human Infer­ence: Strategies and Short­com­ings of Social Judg­ment. (Engle­wood Cliffs, NJ: Pren­tice-Hall, 1980).

Simil­arly, draw­ing from commu­nic­a­tions and social psycho­logy research, law professor Anne Bowen Poulin argued, “[s]tudies reveal that people eval­u­ate those with whom they work face-to-face more posit­ively than those with whom they work over a video connec­tion. When decision­makers inter­act with the defend­ant through the barrier of tech­no­logy, they are likely to be less sens­it­ive to the impact of negat­ive decisions on the defend­ant.” foot­note28_6c6s2jd 28 Anne Bowen Poulin, “Crim­inal Justice and Video­con­fer­en­cing Tech­no­logy: The Remote Defend­ant,” Tulane Law Review 78 (2004): 1118.

Tech­no­logy choices may also have unin­ten­ded consequences. For example, research by G. Daniel Lassiter and coau­thors have docu­mented a camera perspect­ive bias in the context of video­taped confes­sions, find­ing that observ­ers were more likely to believe a confes­sion was volun­tary when the camera was focused only on the defend­ant during a video­taped inter­rog­a­tion. foot­note29_oqhr3jt 29 G. Daniel Lassiter et al., “Video­taped Confes­sions: Panacea or Pandora’s Box?” Law and Policy 28 (2006): 195–201.  Poulin has also noted that space constraints may neces­sit­ate the use of close-up shots during some video hear­ings, which can exag­ger­ate features, obfus­cate the percep­tion of a person’s size and age, and obscure body language. foot­note30_hha8f6f 30 Poulin, “Crim­inal Justice and Video­con­fer­en­cing,” 1121–1122.

Effects on Attor­ney-Client Commu­nic­a­tions and Rela­tion­ship

Another ques­tion raised by the use of video proceed­ings is whether they impact commu­nic­a­tion and other aspects of the rela­tion­ship between attor­neys and their clients, who are frequently separ­ated during remote proceed­ings. For example, in a 2010 survey by the National Center for State Courts, 37 percent of courts that used video proceed­ings repor­ted that they had no provi­sions to enable private commu­nic­a­tions between an attor­ney and client when they were in separ­ate loca­tions. foot­note31_apjz­s6o 31 Bellone, “Client Commu­nic­a­tions and the Effect of Video­con­fer­en­cing,” 44–45.  Poulin also noted that even when a secure phone line for private attor­ney-client commu­nic­a­tion is provided, nonverbal commu­nic­a­tion is likely to be diffi­cult, and it may be hard for a client to catch their attor­ney’s atten­tion with a ques­tion or to provide relev­ant inform­a­tion. foot­note32_3fxwg66 32 Poulin, “Crim­inal Justice and Video­con­fer­en­cing,” 1130.

Simil­arly, Diamond’s Cook County study on the impact of video proceed­ings on bail observed that separ­at­ing attor­neys and clients made it harder for them to quickly confer during a bail hear­ing. She noted that such a commu­nic­a­tion chal­lenge could be consequen­tial in a bail hear­ing: a defend­ant may be able to provide “mitig­at­ing details regard­ing past convic­tions that will greatly assist coun­sel… Obvi­ously, such commu­nic­a­tions must occur imme­di­ately if coun­sel is to be able to make use of his client’s inform­a­tion during a fast-paced bail hear­ing.” foot­note33_6xrobox 33 Diamond et al., “Effi­ciency and Cost,” 881–882.

A study by the advocacy organ­iz­a­tion Trans­form Justice surveyed lawyers, magis­trates, proba­tion officers, inter­me­di­ar­ies, and other offi­cials about the use of remote proceed­ings in the United King­dom. Fifty-eight percent of respond­ents thought that video hear­ings had a negat­ive impact on defend­ants’ abil­ity to parti­cip­ate in hear­ings, and 72 percent thought that video hear­ings had a negat­ive impact on defend­ants’ abil­ity to commu­nic­ate with prac­ti­tion­ers and judges. foot­note34_3am8s6z 34 Penelope Gibbs, Defend­ants on video — conveyor belt justice or a revolu­tion in access?, Trans­form Justice, 2017, 16, http://www.trans­formjustice.org.uk/wp-content/uploads/2017/10/TJ_Discon­nec­ted.pdf.  Survey respond­ents indic­ated that they believed the follow­ing groups were the most negat­ively impacted by video hear­ings: defend­ants with limited English profi­ciency, unrep­res­en­ted defend­ants, and chil­dren under 18. foot­note35_pun4jew 35 Gibbs, Defend­ants on video, 10, 26.

These find­ings were echoed in Flor­id­a’s exper­i­ence with remote video proceed­ings for juven­ile deten­tion hear­ings. In 2001, the Flor­ida Supreme Court repealed an interim rule that had been in effect from 1999 through 2001 that author­ized remote juven­ile hear­ings. foot­note36_ge5811t 36 Due to the Covid-19 pandemic, the Flor­ida Supreme Court tempor­ar­ily author­ized video proceed­ings for juven­ile delin­quency proceed­ings (includ­ing juven­ile deten­tion hear­ings). See Flor­ida Supreme Court, “Chief Justice Issues Emer­gency Order Expand­ing Remote Hear­ings and Suspend­ing Jury Trials into Early July Statewide,” May 4, 2020, https://www.flor­i­dasu­premecourt.org/News-Media/Court-News/Chief-Justice-issues-emer­gency-order-expand­ing-remote-hear­ings-and-suspend­ing-jury-trials-into-early-July-statewide.  In repeal­ing the rule, the Court detailed public defend­ers’ concerns that “there was no proper oppor­tun­ity for mean­ing­ful, private commu­nic­a­tions between the child and the parents or guard­i­ans, between the parents or guard­i­ans and the public defender at the deten­tion center, and between a public defender at the deten­tion center and a public defender in the courtroom.” foot­note37_76qr9k8 37 Amend­ment to Fla. Rule of Juven­ile Proced­ure 8.100(A), 796 So. 2d 470, 473 (Fla. 2001).  The court observed that “[a]t the conclu­sion of far too many hear­ings, the child had no compre­hen­sion as to what had occurred and was forced to ask the public defender whether he or she was being released or detained.” foot­note38_6yzt0ki 38 Amend­ment to Fla. Rule of Juven­ile Proced­ure 8.100(A), 796 So. 2d 470, 473 (Fla. 2001).

End Notes

Additional Access to Justice Considerations

Another ques­tion raised by remote video proceed­ings is how their use impacts the public’s access to justice in civil cases, where there is gener­ally no right to coun­sel and where other safe­guards for litig­ants are weaker than in crim­inal cases.

Access to Coun­sel and Other Resources in Civil Cases

One crit­ical issue is the extent to which video­con­fer­en­cing increases or dimin­ishes burdens for self-repres­en­ted litig­ants in arenas like hous­ing or family court. Under­stand­ing the rela­tion­ship between video proceed­ings and access to justice can inform courts’ use of video both now and in the future, and help identify areas where courts should invest in addi­tional resources or support for litig­ants.

The Confer­ence of Chief Justices has encour­aged judges to “promote the use of remote audio and video services for case hear­ings and case manage­ment meet­ings” in civil cases as part of a broader set of reforms to promote access to justice. foot­note1_ab7i­cyp 1 National Center for State Courts, Call to Action, 37.  The Confer­ence cites, among other things, that video proceed­ings can help mitig­ate the costs borne by litig­ants who might have to travel far distances or take time off from work to attend in-person court proceed­ings. foot­note2_zgwp87t 2 National Center for State Courts, Call to Action, 37–38.  Notably, the Confer­ence of Chief Justices’ proposal calls for combin­ing video proceed­ings with enhanced services for self-repres­en­ted litig­ants, includ­ing inter­net portals and stand-alone kiosks to facil­it­ate access to court services, simpli­fied court forms, and real-time court assist­ances services over the inter­net and phone.

A report by the Self-Repres­en­ted Litig­a­tion Network simil­arly observed that video­con­fer­en­cing tech­no­logy can reduce the time and expenses asso­ci­ated with trav­el­ing, trans­port­a­tion, child­care, and other day-to-day costs that indi­vidu­als incur when they go to court. The report also noted the poten­tial costs of such tech­no­logy, includ­ing the possib­il­ity that remote appear­ances may lessen the accur­acy of fact­find­ing and reduce early oppor­tun­it­ies to settle cases. foot­note3_5ppl35g 3 John Greacen, Remote Appear­ances of Parties, Attor­neys, and Witnesses, Self-Repres­en­ted Litig­a­tion Network, 2017, 3–4; and see also Camille Gour­det et al., Court Appear­ances in Crim­inal Proceed­ings Through Tele­p­res­ence: Identi­fy­ing Research and Prac­tice Needs to Preserve Fair­ness While Lever­aging New Tech­no­logy, RAND Corpor­a­tion, 2020, 4–5, https://www.rand.org/pubs/reserch_reports/RR3222.html(discuss­ing advant­ages and disad­vant­ages of remote proceed­ings in crim­inal cases).

There is only limited research on the bene­fits and harms of video proceed­ings with respect to access to the courts. Eagly’s study of immig­ra­tion court hear­ings found that detained immig­rants who appeared in person were 35 percent more likely to obtain coun­sel than those who appeared remotely, high­light­ing the role that court­houses often play in connect­ing self-repres­en­ted indi­vidu­als with resources, includ­ing repres­ent­a­tion. foot­note4_42rcybo 4 Eagly, “Remote Adju­dic­a­tion,” 960.

On the other hand, a 2007 study on the use of video­con­fer­ence tech­no­logy in Montana, which included inter­views and court obser­va­tions, found that the use of video court appear­ances in both civil and crim­inal hear­ings enabled legal aid organ­iz­a­tions to serve previ­ously under­served parts of the state. foot­note5_ydd00qg 5 Zorza, Video Confer­en­cing for Access to Justice.  Montana, one of the largest and least popu­lated states, had only 84 lawyers in the entire east­ern portion of the state in 2004. foot­note6_jl4y­wzx 6 Zorza, Video Confer­en­cing for Access to Justice. For context, the over­all popu­la­tion in this 47,500 square mile region was between 10 to 14 percent of the state’s total in 2004. See Larry Swan­son, “Montana is One State with Three Chan­ging Regions,” Belgrade News, Febru­ary 28, 2019, http://www.belgrade-news.com/news/feature/montana-is-one-state-with-three-chan­ging-regions/article_cc6c­cb66–3b82–11e9–881c-8f20af­d84778.html#:~:text=The%20Cent­ral%20Front%20re­gion%20has,of%20the%20total%20in%201990.  The study concluded that intro­du­cing video hear­ings means that “legal aid has a pres­ence in counties from which they would be absent if video were not there as an option.” foot­note7_oufd­cql 7 Zorza, Video Confer­en­cing for Access to Justice, 12.  Video proceed­ings also opened up greater oppor­tun­it­ies for pro bono repres­ent­a­tion. The report endorsed the use of the video tech­no­logy in Montana, while urging caution in ensur­ing that the tech­no­logy was “used with sens­it­iv­ity to over­all access to justice goals,” includ­ing recog­niz­ing that there are cases that may not be appro­pri­ate for video appear­ances, such as those involving lengthy proceed­ings. foot­note8_hp5x5lp 8 Zorza, Video Confer­en­cing for Access to Justice, 13.  The study also acknow­ledged that there are still unanswered ques­tions about how to prop­erly cross-exam­ine a witness over video and that the poten­tial issues with such exam­in­a­tions could be more signi­fic­ant when deal­ing with an indi­vidu­al’s cred­ib­il­ity or integ­rity. foot­note9_budx2ej 9 Zorza, Video Confer­en­cing for Access to Justice, 18.

Beyond the use of video­con­fer­en­cing, another study looked at an online case resol­u­tion system for minor civil infrac­tions and misde­mean­ors. This online system did not use video; rather, indi­vidu­als had the option to use an online portal to commu­nic­ate with judges, prosec­utors, and law enforce­ment at any time of day. The study found that the system saved time, signi­fic­antly reduced case dura­tion, and reduced default rates (where indi­vidu­als lose cases by not contest­ing their claims). foot­note10_8dgdxj6 10 J.J. Prescott, “Improv­ing Access to Justice in State Courts with Plat­form Tech­no­logy,” Vander­bilt Law Review 70 (2017): 2028–2034.  The author high­lighted the costs asso­ci­ated with going to court for relat­ively low-stakes proceed­ings: “Phys­ic­ally going to court costs money, takes time, creates fear and confu­sion, and presents both real and perceived risks.” foot­note11_smr8qzb 11 Prescott, “Improv­ing Access to Justice,” 1996.  To the extent that video proceed­ings may simil­arly reduce some of the costs of going to the court­house, this study suggests that in lower-stakes proceed­ings, the use of video can save time compared to attend­ing in-person proceed­ings, and can enable more indi­vidu­als to engage with the system rather than default­ing their claims. However, it also high­lights that video­con­fer­en­cing is not the only way to conduct proceed­ings remotely, and that in some contexts online systems and other tech­no­lo­gies have func­tioned well. foot­note12_0ntjwgo 12 See also Maximilian A. Bulin­ski and J.J. Prescott, “Online Case Resol­u­tion Systems: Enhan­cing Access, Fair­ness, Accur­acy, and Effi­ciency,” Michigan Journal of Race and Law 21 (2016). OCR systems involve trans­ition­ing some every­day court proceed­ings, such as civil infrac­tion cita­tions, outstand­ing fail­ure-to-pay or fail­ure-to-appear warrants, and some misde­mean­ors to be settled online, some­times via video­con­fer­ence.

Addi­tional Consid­er­a­tion for Margin­al­ized Communit­ies

Other research raises poten­tial equity concerns about the broad use of video proceed­ings, partic­u­larly for margin­al­ized communit­ies and in cases where indi­vidu­als are required to parti­cip­ate by video. These concerns under­score the need for addi­tional research and eval­u­ation as courts exper­i­ment with remote systems, as well as the need for courts to consult with a wide array of stake­hold­ers when devel­op­ing policies for video proceed­ings.

For instance, there is a substan­tial digital divide asso­ci­ated with access to the inter­net and commu­nic­a­tion tech­no­logy. One crit­ical unanswered ques­tion is whether and how video proceed­ings may exacer­bate exist­ing inequal­it­ies. Accord­ing to stud­ies by the Pew Research Center, there are substan­tial dispar­it­ies in access to inter­net broad­band and computers accord­ing to income and race. foot­note13_4ltyal6 13 29 percent of adults with house­hold incomes below $30,000 did not own a smart­phone, 44 percent did not have home broad­band services, and 46 percent did not own a tradi­tional computer. House­holds with incomes of $100,000 almost univer­sally had access to these tech­no­lo­gies. Monica Ander­son and Madhu­mitha Kumar, “Digital Divide Persist Even as Lower-Income Amer­ic­ans Make Gains in Tech Adop­tion,” Pew Research Center, May 7, 2019, https://www.pewre­search.org/fact-tank/2019/05/07/digital-divide-persists-even-as-lower-income-amer­ic­ans-make-gains-in-tech-adop­tion/. Only 66 percent and 61 percent of Black and Latino Amer­ic­ans respect­ively have access to a home broad­band compared to 79 percent of white Amer­ic­ans. Andrew Perrin and Erica Turner, “Smart­phones Help Blacks, Hispan­ics Bridge Some — But Not All — Digital Gaps with Whites,” Pew Research Center, August 20, 2019, https://www.pewre­search.org/fact-tank/2019/08/20/smart­phones-help-blacks-hispan­ics-bridge-some-but-not-all-digital-gaps-with-whites/.  Amer­ic­ans who live in rural communit­ies are also less likely to have access to broad­band inter­net. foot­note14_n24d47r 14 Andrew Perrin, “Digital Gap Between Rural and Nonrural Amer­ica Persists,” Pew Research Center, May 31, 2019, https://www.pewre­search.org/fact-tank/2019/05/31/digital-gap-between-rural-and-nonrural-amer­ica-persists/.  The same is true for people with disab­il­it­ies, who may also require special tech­no­logy in order to engage in online activ­it­ies such as remote court proceed­ings. foot­note15_6ea94n3 15 Disabled Amer­ic­ans are about 20 percent­age points less likely than those without a disab­il­ity to say that they have access to home broad­band inter­net or own a computer, smart­phone, or tablet. Monica Ander­son and Andrew Perrin, “Disabled Amer­ic­ans are Less Likely to Use Tech­no­logy,” Pew Research Center, April 7, 2017, https://www.pewre­search.org/fact-tank/2017/04/07/disabled-amer­ic­ans-are-less-likely-to-use-tech­no­logy/.

Tech­no­logy dispar­it­ies poten­tially pose signi­fic­ant hurdles to the wide­spread use of video court proceed­ings for margin­al­ized communit­ies, partic­u­larly when Covid-19 has led to the clos­ure of many offices and librar­ies. The pandemic has also caused a massive spike in unem­ploy­ment, which may hinder litig­ants’ abil­it­ies to pay their phone and inter­net bills. foot­note16_xhgioi0 16 Rachel Dissell and Jordyn Grzelewski, “Phone, Inter­net Providers Extend Service Yet Some Still Discon­nec­ted from Life­lines During Coronavirus Pandemic,” Clev­e­land.com, April 8, 2020, https://www.clev­e­land.com/coronavirus/2020/04/phone-inter­net-providers-extend-service-yet-some-still-discon­nec­ted-from-life­lines-during-coronavirus-pandemic.html. See also NORC at the Univer­sity of Chicago, “Most Work­ing Amer­ic­ans Would Face Economic Hard­ship If They Missed More than One Paycheck,” press release, May 16, 2019, https://www.norc.org/News­Ev­ent­sPub­lic­a­tions/Press­Releases/Pages/most-work­ing-amer­ic­ans-would-face-economic-hard­ship-if-they-missed-more-than-one-paycheck.aspx.  Because there is currently a dearth of research on how the digital divide impacts access to video proceed­ings, courts and other stake­hold­ers should conduct their own stud­ies before commit­ting to the use of video hear­ings in the long term.

Other research has iden­ti­fied chal­lenges that self-repres­en­ted litig­ants face in navig­at­ing the legal system, includ­ing the need for train­ing and support offered in multiple languages. foot­note17_z1jlk9m 17 Phil Malone et al., Best Prac­tices in the Use of Tech­no­logy to Facil­it­ate Access to Justice Initi­at­ives: Prelim­in­ary Report, Berkman Center for Inter­net and Soci­ety at Harvard Univer­sity, 2010, 6–7, 14–19, Appendix A, https://cyber.harvard.edu/sites/cyber.harvard.edu/files/A2J_Report_Final_073010.pdf.  In some states, as many as 80 to 90 percent of litig­ants are unrep­res­en­ted. foot­note18_0snb6qz 18 Jessica Stein­berg, “Demand Side Reform in the Poor People’s Court,” Connecti­cut Law Review, 47 (2015): 741. Another crit­ical research ques­tion is the extent to which courts are able to provide adequate support remotely, partic­u­larly in juris­dic­tions where court­houses have been the prin­cipal place where indi­vidu­als going to court connect with resources.

A final ques­tion is how remote tech­no­logy affects access to justice for indi­vidu­als who do not speak English or have limited English profi­ciency. This is a partic­u­lar concern in the judi­cial context because research suggests that dense court language can be diffi­cult to commu­nic­ate via trans­la­tion to non-English speak­ers. foot­note19_ihoso53 19 Charles M. Grabau and Llewellyn Joseph Gibbons, “Protect­ing the Rights of Linguistic Minor­it­ies: Chal­lenges to Court Inter­pret­a­tion,” New England Law Review 30 (1996): 237–244, 255—60. See also Ashton Sapping­ton, “Implied Consent and Non-English Speak­ers,” John Marshall Law Journal 5 (2012): 638.

Research related to the use of remote trans­la­tion in areas such as telemedi­cine has been mixed as to whether remote trans­la­tion impacts qual­ity and satis­fac­tion. foot­note20_r6reixp 20 Ann Chen Wu et al., “The Inter­preter as Cultural Educator of Resid­ents: Improv­ing Commu­nic­a­tion for Latino Parents,” Archives of Pedi­at­rics and Adoles­cent Medi­cine 160 (2006): 1145–50; C. Jack, “Language, Cultural Broker­age and Informed consent — Will Tech­no­lo­gical Terms Impede Telemedi­cine Use?” South African Journal of Bioeth­ics and Law 7 (2014): 14, 16–17; and Imo S. Momoh, Cultural Compet­ence Plan, Contra Costa County Mental Health Services, 2010, 78, 101–108, 114, https://cchealth.org/mental­health/pdf/2010_cultural_compet­ence_plan.pdf.   And while there is limited research on remote trans­la­tion in courts, a study by the Legal Assist­ance Found­a­tion of Metro­pol­itan Chicago and the Chicago Apple­seed Fund for Justice found that approx­im­ately 30 percent of litig­ants in immig­ra­tion court who used an inter­preter appeared to misun­der­stand what was happen­ing, either due to misin­ter­pret­a­tion or inad­equate inter­pret­a­tion. foot­note21_7pg1t26 21 The Legal Assist­ance Found­a­tion of Metro­pol­itan Chicago and the Chicago Apple­seed Fund for Justice, Video­con­fer­en­cing in Removal Hear­ings: A Case Study of the Chicago Immig­ra­tion Court, 2005, 8, http://chica­goapple­seed.org/wp-content/uploads/2012/08/video­con­fre­port_080205.pdf.  The study lacked a control group, making it diffi­cult to assess the role that remote video immig­ra­tion proceed­ings played in trans­la­tion diffi­culties, but the report’s authors sugges­ted that, based on their obser­va­tion of these proceed­ings, video­con­fer­ences exacer­bated trans­la­tion diffi­culties. foot­note22_d8652ex 22 The Legal Assist. Found. of Metro­pol­itan Chicago and the Chicago Apple­seed Fund for Justice, Video­con­fer­en­cing in Removal Hear­ings, 13.

End Notes

Conclusion

Though video confer­en­cing tech­no­logy has been a valu­able tool during the Covid-19 pandemic, exist­ing schol­ar­ship suggests reas­ons to be cautious about the expan­sion or long-term adop­tion of remote court proceed­ings. More research is neces­sary, both about the poten­tial impact of remote tech­no­logy on outcomes in a diverse range of cases, as well as the advant­ages and disad­vant­ages with respect to access to justice. In the mean­time, as courts develop policies for remote proceed­ings, they should consult with a broad set of stake­hold­ers, includ­ing public defend­ers and prosec­utors, legal services providers, victim and disab­il­ity advoc­ates, community lead­ers, and legal schol­ars.