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Principles for Continued Use of Remote Court Proceedings

Policymakers should consider these guidelines when assessing when to use remote technology in lieu of in-person judicial proceedings.

Published: September 10, 2020

The Bren­nan Center has also released an analysis of the exist­ing schol­ar­ship on how remote court proceed­ings may impact fair­ness and access to justice, avail­able here.

Since the begin­ning of the coronavirus pandemic, courts have turned to remote proceed­ings to continue essen­tial oper­a­tions, using video plat­forms to hear cases while adher­ing to public health guid­ance. As the pandemic has contin­ued, many courts have expan­ded the use of these tech­no­lo­gies to more types of cases, even hold­ing remote jury trials. In some juris­dic­tions, courts are consid­er­ing expand­ing the use of remote tech­no­lo­gies in the long term.

But exist­ing research about remote court proceed­ings gives reason for caution. A Bren­nan Center review of the exist­ing schol­ar­ship around the use of remote video proceed­ings found that, at least in some circum­stances, remote proceed­ings can under­mine the attor­ney-client rela­tion­ship, alter the perceived cred­ib­il­ity of witnesses, lead parti­cipants to disen­gage with the judi­cial process, and ulti­mately result in changed outcomes in cases. At the same time, remote proceed­ings imple­men­ted well may have substan­tial bene­fits, includ­ing expand­ing access to legal services.   

Based on this research — and draw­ing on conver­sa­tions with legal services providers, judges, schol­ars, and advoc­ates for expand­ing access to justice — the Bren­nan Center has iden­ti­fied the follow­ing prin­ciples to help inform future poli­cy­mak­ing about the use of remote court proceed­ings:

1. Engage a diverse array of justice system stake­hold­ers

In devel­op­ing policies for remote proceed­ings, courts have to balance public health guid­ance with the need to continue serving their communit­ies, and effi­ciency with the oblig­a­tion to ensure fair­ness. Courts are ill-equipped to balance these consid­er­a­tions on their own. To do so, it is crit­ical that courts engage and listen to stake­hold­ers both inside and outside the judi­cial system. Among others, courts should involve members of the communit­ies most likely to suffer if remote proceed­ings go poorly, includ­ing communit­ies of color, immig­rant communit­ies, and communit­ies of people with disab­il­it­ies. Courts should incor­por­ate the insights of community advoc­ates, public defend­ers and prosec­utors, civil legal service providers, tenant repres­ent­at­ives, surviv­ors of domestic viol­ence, public health experts, disab­il­ity rights advoc­ates, court employ­ees, and more.   

2. Tailor plans to the type of proceed­ing

There is no one-size-fits-all approach to remote proceed­ings. Courts hear a broad range of cases, both civil and crim­inal, for which remote proceed­ings are likely to pose very differ­ent chal­lenges, bene­fits, and trade-offs. Relev­ant factors include a case’s complex­ity and time-sens­it­iv­ity, the stakes of a win or loss, the kind of fact­find­ing that the case requires, and whether detained indi­vidu­als or self-repres­en­ted litig­ants are involved. For example, using a remote proceed­ing to resolve an uncon­tested divorce raises differ­ent fair­ness consid­er­a­tions than using one to evict someone from their home. Courts should eval­u­ate categor­ies of cases separ­ately, and listen to attor­neys and community repres­ent­at­ives, in order to strike the right balance.

Simil­arly, courts should consider how tradeoffs may vary depend­ing on the proceed­ing. For example, hold­ing a status confer­ence by video or phone raises differ­ent consid­er­a­tions than using the same tech­no­logy for an evid­en­tiary hear­ing. By being context-specific, courts may be able to advance a large portion of their docket remotely while being cautious around the types of hear­ings stake­hold­ers know are most impacted by the use of remote tech­no­logy.

3. Bolster the attor­ney-client rela­tion­ship

Remote proceed­ings can dramat­ic­ally alter the attor­ney-client rela­tion­ship. Most funda­ment­ally, they reduce the oppor­tun­ity for commu­nic­a­tion between attor­neys and clients prior to, during, and after court proceed­ings. This can hinder attor­neys’ abil­ity to get the inform­a­tion they need to make the strongest case possible for their clients, and it can make it hard for clients to ask ques­tions. It is crit­ical that courts adopt tech­no­logy that allows for confid­en­tial attor­ney-client commu­nic­a­tion during court proceed­ings, and that they create proced­ures to facil­it­ate such commu­nic­a­tion. Judges may also need to go to greater lengths during remote proceed­ings to ensure that parties appre­ci­ate the signi­fic­ance of the proceed­ings they are involved in and that they are made aware of their options for relief.   

4. Provide extra support for self-repres­en­ted litig­ants

A large portion of parties in civil cases are unrep­res­en­ted ­— as high as 90 percent in some categor­ies of cases. In addi­tion to being unfa­mil­iar with the court system, self-repres­en­ted litig­ants are also dispro­por­tion­ately likely to have limited computer liter­acy. As courts expand remote proceed­ings, they must take extra steps to ensure that self-repres­en­ted litig­ants can navig­ate the new system, whether by provid­ing addi­tional supports or prior­it­iz­ing oppor­tun­it­ies for in-person services.

In partic­u­lar, courts should prior­it­ize contin­ued access to in-court legal support programs. Many people who enter a court­house to address a civil matter without a lawyer still get legal assist­ance along the way. Courts across the coun­try have narrowed the justice gap through innov­a­tions like legal help desks, which give advice to unrep­res­en­ted parties, and programs that station pro bono coun­sel in court­houses to provide on-the-spot limited repres­ent­a­tion. Through these resources and other court­house inter­ac­tions, some unrep­res­en­ted indi­vidu­als are also able to obtain long-term repres­ent­a­tion. Courts should prior­it­ize offer­ing remote versions of these programs, and take extra steps to publi­cize these resources and identify parties in court who might bene­fit from them.

5. Provide tech­nical support and adopt tech­no­logy stand­ards to ensure qual­ity

Seem­ingly mundane tech­no­lo­gical glitches can have a substan­tial impact on the fair­ness of court proceed­ings. For example, a 2017 report commis­sioned by the Depart­ment of Justice recog­nized that “issues asso­ci­ated with poor video and sound qual­ity… can disrupt [immig­ra­tion court] cases to the point that due process issues may arise.” Courts must have a plan in place to respond when a party cannot be heard, or cannot hear, at a crit­ical junc­ture in their case. Likely, this will mean that courts need new tech­nical support on call for court staff and for members of the public, some of whom may be using the court’s chosen remote plat­form for the first time. Courts should prior­it­ize the parties’ interests above effi­ciency and the drive to conclude cases, being sure not to penal­ize parties for tech­no­lo­gical diffi­culties. To that end, courts may need to adopt guidelines for determ­in­ing when a proceed­ing has failed to meet the minimum-required level of tech­nical qual­ity to be considered fair.

Beyond disrup­tion, the tech­no­lo­gical aspects of remote proceed­ings — how defend­ants, witnesses, and parties appear on screen, includ­ing their back­drop, light­ing, and sound — may affect cred­ib­il­ity determ­in­a­tions and other fact­find­ing. Courts should consider setting stand­ards to ensure new tech­no­lo­gies do not unfairly disad­vant­age litig­ants. They also may need to estab­lish safe access points within the community for people without qual­ity tech­no­logy at home.

6. Appre­ci­ate the persist­ent digital divide and ensure mean­ing­ful parti­cip­a­tion by margin­al­ized popu­la­tions

In adopt­ing remote policies, courts must appre­ci­ate the persist­ent digital divide — large dispar­it­ies in access to tech­no­logy by income, race, and geography. Some persons with disab­il­it­ies also face obstacles to using certain tech­no­lo­gies. These dispar­it­ies have been borne out in the use of remote educa­tion plat­forms during the Covid-19 crisis, where Black and Latino students, English language learners, and students facing hous­ing instabil­ity have accessed remote tech­no­logy at reduced rates in some districts. It is import­ant that court policies be flex­ible, under­stand­ing that substan­tial portions of the popu­la­tions courts serve, and in partic­u­lar histor­ic­ally margin­al­ized communit­ies, may not easily trans­ition to remote proceed­ings or may have more diffi­culty using resource-intens­ive tech­no­lo­gies like video.

Courts also need to ensure that supports, such as remote inter­preter services, are of suffi­cient qual­ity. For example, court admin­is­trat­ors have repor­ted that non-English speak­ers have a more diffi­cult time under­stand­ing and commu­nic­at­ing with remote inter­pret­ers. Courts will need to go to greater lengths to ensure that all parties under­stand what is happen­ing and believe the inter­pret­a­tion fairly repres­ents their state­ments. Courts should be prepared to adjourn proceed­ings when the qual­ity of inter­pret­a­tion is too poor.

7. Seek the consent of parties before proceed­ing remotely

The parties and attor­neys involved in a case will often best under­stand the balance between the costs and bene­fits of advan­cing a case remotely. There may be indi­vidu­als who will only feel fully heard if they appear phys­ic­ally, and others who would be relieved by not having to go to the court­house. Attor­neys may recog­nize that certain aspects of a case are too crucial or sens­it­ive to conduct remotely. Courts can most easily resolve the chal­lenge of balan­cing compet­ing pres­sures by simply giving parti­cipants a choice, as some court systems have already done for certain cases, and prohib­it­ing judges from moving a case forward remotely without consent from all parties. Any consent require­ment must be mean­ing­ful, however, with an option for timely in-person proceed­ings not so far in the future as to harm the interests of the parties. 

8. Meet all legal and consti­tu­tional require­ments when using remote proceed­ings

As courts hone their virtual oper­a­tions, this new normal must also fit within exist­ing legal guard­rails. In crim­inal cases, for example, the U.S. Consti­tu­tion demands that defend­ants be able to confront witnesses against them. Under Supreme Court preced­ent, that means courts can only dispense with face-to-face confront­a­tion, which is neces­sary to “ensure the integ­rity of the fact­find­ing process,” if the court makes a case-specific determ­in­a­tion of neces­sity and assures the testi­mony is never­the­less. foot­note1_eeu9un8 1 Coy v. Iowa, 487 U.S. 1012 (1988).  As Justice Scalia wrote upon reject­ing a proposed amend­ment to the Federal Rules of Crim­inal Proced­ure which would have made video testi­mony more common, while “virtual confront­a­tion might be suffi­cient to protect virtual consti­tu­tional rights; I doubt whether it is suffi­cient to protect real ones.”

Limits on a defend­ant’s abil­ity to commu­nic­ate and strategize with their attor­ney could also implic­ate their right to effect­ive repres­ent­a­tion by coun­sel. This protec­tion applies not only to inef­fect­ive repres­ent­a­tion result­ing from an attor­ney’s decisions, but also when circum­stances make it impossible for even the most qual­i­fied coun­sel to provide effect­ive repres­ent­a­tion. foot­note2_rhts0rm 2 Strick­land v. Wash­ing­ton, 466 U.S. 668 (1984); Perry v. Leeke, 488 U.S. 272 (1989).  In civil matters as well, remote proceed­ings may inter­fere with parties’ consti­tu­tional right to a mean­ing­ful hear­ing by making it more diffi­cult for them to present or exam­ine evid­ence or by dimin­ish­ing the reli­ab­il­ity of witness testi­mony. foot­note3_y8e1yl5 3 Math­ews v. Eldridge, 424 U.S. 319 (1976).

The Consti­tu­tion also guar­an­tees a public right to access court proceed­ings, which belongs to both the public and to defend­ants in crim­inal cases. foot­note4_qb6zzga 4 Waller v. Geor­gia, 467 U.S. 39 (1984); Press Enter­prise Co. v. Super­ior Ct., 464 U.S. 501 (1984).  The Covid-19 crisis presents chal­len­ging ques­tions for courts as to how to best balance public health guidelines with broad access, and balance broad access with the poten­tial that streamed court proceed­ings may be recor­ded in ways that are undesir­able or prohib­ited. Many crim­inal proceed­ings, for example, are eligible to be sealed from public view, partic­u­larly when youth are involved. Court plans for public access must recog­nize that it will be prac­tic­ally diffi­cult to “seal” a proceed­ing that has been previ­ously streamed to the public. Whatever means of access courts adopt, they will need tech­no­logy and secur­ity mech­an­isms to keep them open when they are supposed to be open and closed when they are supposed to be closed. 

9. Embrace the bene­fits of remote proceed­ings when they are clear

Even under­stand­ing their short­com­ings, remote proceed­ings also have substan­tial bene­fits. Fore­most, they have allowed courts to continue oper­at­ing in this crisis without risk­ing the health of their communit­ies. Even in more normal times, however, courts have used remote tools to strengthen the justice system by enabling legal providers to reach diffi­cult-to-serve communit­ies, expand language access, and allow attor­neys to spend more time serving clients and less time in transit to the court­house. Most of all, the avail­ab­il­ity of remote proceed­ings may be the differ­ence between someone remain­ing in custody or return­ing home to their family and community. While courts must recog­nize the docu­mented short­com­ings of remote proceed­ings, they should embrace the bene­fits when justice system stake­hold­ers agree on those. Courts and legis­latures should also take this oppor­tun­ity to invest in tech­no­lo­gies that expand access to justice.

10. Study remote proceed­ings to better under­stand their impact

While there is signi­fic­ant research high­light­ing the short­com­ings of remote proceed­ings, as well as their bene­fits, these stud­ies are limited and come from specific contexts, such as immig­ra­tion courts, that may be distinct from other court proceed­ings. If court systems are going to rely on remote proceed­ings more broadly, it is essen­tial that they study this trans­ition for its impacts on both fair­ness and access to justice.

End Notes