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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_1tg75yd 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_gctekzc 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_kzk251r 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_ky5l0rf 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_b0qcaq3 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_3dx9x6a 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_1logjfg 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_jga4tcd 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_ya1ng1g 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_ww1mwed 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_8d8p4rt 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_ymeewl4 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_1jaaso1 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_6mzzwwi 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_wg1sbl5 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_ir0jiz9 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_uuig8w4 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_5wid6tm 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_sth33jf 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_faew9t9 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_bge7xpo 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_mhugn8f 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_e47yfhh 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_qh297z8 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_m8yy8y8 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_kx2k6z9 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_p8ub9rb 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_ejzseah 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_5eihap6 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_oaryise 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_qwlh2po 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_o8hm3qz 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_489dha9 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_nd1sm6y 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_cn8l86k 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_5mqi5h0 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_7t5qf3f 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_k8zzu34 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_9848se4 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_qyl5de1 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_1i8ulg5 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_8t4z2qu 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_1ltqqi2 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_w28l2bk 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_546salz 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_7to3esg 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_m053fpz 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_7dmkycg 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_7f8rr0m 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_a24yicb 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_070bs37 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_42kl7e4 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_obtagbw 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_eaj4izf 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_nxhyx8l 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_jl5prf2 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_2kaull2 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_qiaunfd 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_a8x735p 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_t9k1wu5 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_j8981pk 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_dbixebm 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_50wniq5 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_2wzga0n 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_9t1s2jh 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_lpnyhsz 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_h6fxzgm 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_ih8j9lm 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_j3xw8qb 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_88j6wtz 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_ortl3b4 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_kdbjhfd 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_ijn93wd 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.