Zooming into the Courtroom

Photo by Chris Montgomery on Unsplash

Grace Monzel, Associate Member, University of Cincinnati Law Review

I. Introduction

“As the year [2020] ended, the United States surpassed 20 million infections from SARS-CoV-2, and more than 346,000 deaths,” according to the American Journal of Managed Care.[1] On March 19, 2020, California was the first state to issue a statewide Stay-at-Home Order, which mandated all residents to stay at home unless a person had an essential job or needed to shop for essential products.[2] Other states soon followed suit as COVID-19 infections began to spread, which ultimately prompted and necessitated the adoption of online work and communication.[3] These orders caused all professional industries to make significant changes.

Due to COVID-19, courtrooms have increased the use of video conferencing technology in order to safely and effectively hold trials. According to the Zoom Blog, “legal proceedings around the country have looked very different amid widespread social distancing and stay-at-home mandates during COVID-19.”[4] For example, the Illinois Supreme Court conducted oral arguments over Zoom.[5] Since many courtrooms have implemented and used video conferencing technologies during the pandemic, it is crucial to determine whether these technologies should continue to be regularly used once legal proceedings begin to return to normal. The following article will explore the pros and cons of implementing video conferencing technology in the courtroom as well as its impact on the protection of defendants.

II. Background

Videoconferencing technology has allowed courts to safely and effectively hold trials during the pandemic. Videoconferencing occurs when:

The party appearing in court from a remote location sits in front of a monitor with a camera and a microphone that capture video and audio data… the courtroom where the proceeding is taking place also is equipped with an audio and video setup. Video and audio data are transmitted between the remote party and the courtroom via a network connection, according to the RAND Corporation.[6]

This allows the parties in both locations to communicate in real time rather than requiring a physical appearance in a courtroom.[7]

Videoconferencing technology is currently used in federal, state, and local courts for a variety of purposes.[8] For example, the technology allows witnesses, victims, defendants, and experts to remotely appear in court and present evidence.[9] Today all 13 federal appeals courts use some form of videoconferencing technology.[10]  Some courts, such as the 19^th Circuit Court in Illinois, provide step-by-step instructions regarding how to set up and use the videoconferencing technology for those participating in a trial.[11] This illustrates that many courts throughout the United States have quickly adopted and implemented videoconferencing technologies in the courtroom successfully.

The use of videoconferencing technologies in the courtroom may be subject to state or local-level protections which can vary by jurisdiction.[12] Further, regarding criminal courts, a defendant’s constitutional rights must be protected when using these technologies, which includes rights stated in the Fifth Amendment and the Sixth Amendment.[13] According to Cornell Law School, “in criminal cases, the Fifth Amendment guarantees the right to a grand jury, forbids “double jeopardy,” and protects against self-incrimination. It also requires that “due process of law” be part of any proceeding that denies a citizen “life, liberty or property.””[14] Under the Sixth Amendment, criminal defendants are guaranteed the right to a public trial without unnecessary delay, the right to an impartial jury, and the right to a lawyer.[15]

Many courts that use videoconferencing technologies have decided to implement them during pretrial court proceedings for defendants, whereas attorneys, witnesses, victims, and language interpreters generally make an appearance via video during pretrial and trial proceedings.[16] Since there is a constitutional right to confront witnesses, it is predicted that this right will likely limit the use of videoconferencing technologies in criminal cases.[17] This is because “in-person action is particularly important in jury trials, where determining witness credibility is so central,” according to Bloomberg Law.[18] However, there are still many civil proceedings such as settlements and status conferences that can be conducted through videoconferencing while adequately protecting defendants’ rights.[19]

Lastly, it is important to note that many people working in the legal field want to continue to use videoconferencing technologies after the United States returns to normal working conditions. Even judges and lawyers who were skeptical of implementing the technology now say that it has made depositions, jury selection, and oral arguments more efficient.[20] The chief justice of the Texas Supreme Court said, “We’re going to be doing court business remotely forever,” according to Bloomberg Law.[21] On the other hand, many in the legal profession are eager to return in person and eliminate the use of videoconferencing technologies. The chief justice of the Southern District of New York stated, “We can’t wait to be in a position to get rid of video in criminal cases. It really doesn’t work,” according to Bloomberg Law.[22] Due to these conflicting views of the use of videoconferencing technology in the courtroom, the following analysis will explore the pros and cons of regularly implementing videoconferencing technology as well as its impact on the protection of defendants.

III. Analysis

A. Advantages of Adopting Video Conferencing in Courtrooms

There are many benefits to adopting video conferencing technologies in courtrooms. The following will explore each benefit and discuss the potential impact on a defendant’s rights and protections.

i. Benefits Regarding Health and Safety  

Due to the global pandemic, the health and safety of every party involved in a trial is crucial. Adopting video conferencing technology allows trial participants to participate remotely in a safe, zero-contact way. This has helped to prevent the spread of the coronavirus and has potentially saved many lives. Future pandemics could occur, so continuing the regular use of videoconferencing technology after the United States returns to normal can ensure that another huge and unprepared transition to online trials will not occur. Training future judges, attorneys, and others involved in trial proceedings and having them use videoconferencing technology regularly will keep everyone prepared for any future health crises. This will ultimately better protect defendants because when the coronavirus entered the United States, courts were unprepared and as a result every state canceled or significantly limited in-person criminal court proceedings, thus delaying defendants’ trials and arguably their right to justice.[23] These delays also caused many defendants with health problems to request plea deals in order to avoid being held in jail for an unknown length of time.[24]

By being prepared and having the option to use videoconferencing technology, trials can be held more efficiently, as video reduces the time it takes to transport everyone into a court room, especially when there is limited availability and social distancing during the pandemic.[25] Further, sick defendants can better avoid contracting dangerous diseases.[26] Lastly, safety can be improved by using videoconferencing technology. “By allowing individuals to appear in court remotely, telepresence eliminates the need to transport defendants and offenders from correctional facilities to courthouses, reducing potential threats to the safety of court personnel, corrections staff, victims, witnesses, and the public,” according to the RAND Corporation.[27]

ii. Benefits Regarding Victims, Witnesses, and Experts

Regularly implementing the use of videoconferencing technology creates many benefits in regard to victims, witnesses, and experts. One potential benefit is cost savings. Videoconferencing reduces the amount of money spent on the transportation of defendants, attorneys, witnesses, experts, and more.[28] People who live out of the state or far from the courthouse could have the option to participate in trials via videoconference thus saving time and money. Videoconferencing could also potentially reduce trauma for victims. Victims of crimes such as sexual assault could use videoconferencing to testify against a defendant without having to being in the same room as the offender, thus allowing victims to feel safer and more protected during trial.[29] Lastly regarding witnesses, “some judges feel that Zoom hearings allow them to truly assess witness credibility since they are making prolonged eye-to-eye contact, often on a large screen in their courtrooms. Such a format allows for fewer distractions and more focus on the witness than in a traditional courtroom,” according to The National Law Review.[30]

Overall, videoconferencing provides increased health and safety precautions to those involved in lawsuits, as well as the general public. Further, victims can feel more protected when going to court virtually, and money can be saved by allowing witnesses and experts to appear remotely via video. Therefore, regularly implementing videoconferencing in the courtroom provides greater protection to all parties participating in trial proceedings and the regualr use of it should be encouraged when the pandemic is over.

B. Disadvantages of Adopting Video Conferencing in Courtrooms

There are also some cons to adopting video conferencing technologies in courtrooms. The following will explore each con and discuss the potential impact on a defendant’s rights and protections.

One concern is that judges are not always able to have full control in a virtual courtroom.[31] Unforeseen technological issues can occur and this can cause problems during trials. Judges also may not be able to tell if witnesses or others participating in the trial are being coached by third parties or are using notes, which can hurt the integrity of a testimony.[32] It is also harder for the factfinder to judge a witness’s mannerisms since they may not be able to see subtle acts such as shaky hands on video.[33] Another concern is that third parties could potentially take illegal recordings of a trial on their cellphones outside of the view of the videoconference screen without anyone being able to notice.[34] This leads into the concern that confidential information could be more easily disclosed via videoconferencing and hackers could figure out how to obtain this information.[35] Lastly, there is a concern that the use of videoconferencing could harm the attorney-client relationship as it can be more difficult to have private conversations via video.[36]

Overall, these are all important concerns to consider when deciding whether videoconferencing technologies should continue to be implemented in courtrooms. These technologies should add value to protecting defendants and these concerns must be addressed as the virtual courtroom continues to become widely used. Although there are cons to implementing videoconferencing technologies in courtrooms, these cons can be addressed. As videoconferencing technology evolves, judges will likely be able to have greater control over virtual courtroom proceedings and solutions for more secure viewings by the public can be created, such as using more secure software to prevent hacking.

Further, the pros of implementing videoconferencing technologies arguably outweigh the cons. Adopting videoconferencing in courtrooms creates a stronger protection for defendants as well as those involved in the trial process. As explained previously, trial proceedings can be delayed for many reasons so having the additional option to conduct trials virtually better protects defendants’ right to a speedy trial and arguably their right to justice. Lastly, witnesses and experts who live far away and are unable to attend a trial due to transportation or other costs could more easily attend via video, which results in a stronger protection of defendants.

IV. Conclusion

In conclusion, videoconferencing technology should be regularly implemented after the pandemic when the United States has returned to normal. However, it is crucial to balance the pros and cons of implementing video technology in order to fully protect defendants. Videoconferencing should be used when it is too expensive to transport beneficial experts and witnesses. Victims should have the option to appear remotely via video in order to feel safer during trial. Further, if there are health risks and safety concerns, videoconferencing provides a safe alternative and will help prevent courts from having to stall and delay trials in the future. On balance, it is important to find videoconferencing options that can better protect confidential information and prevent illegal recordings of trials. Criminal trials should be conducted in person as much as possible, but many civil trials can be made more efficient with the use of video. Courtrooms have done a great job rapidly adjusting to the impacts of the coronavirus in order to protect defendants, and the implementation of these new videoconferencing technologies can continue lead to even greater protections for defendants in the future. The United States is ready to zoom into the courtroom.

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[1] A Timeline of COVID-19 Developments in 2020, The American Journal of Managed Care (last updated Jan. 1, 2021), https://www.ajmc.com/view/a-timeline-of-covid19-developments-in-2020

[2] Id.

[3] Jiachuan Wu, Savannah Smith, Mansee Khurana, Corky Siemaszko and Brianna DeJesus-Banos, Stay-at-home orders across the country, NBC News (Mar. 25, 2020),  https://www.nbcnews.com/health/health-news/here-are-stay-home-orders-across-country-n1168736

[4] Matt Torman, Zoom Court Is Now In Session: How the Legal World Has Pivoted to Virtual During COVID-19, Zoom Blog (July 23, 2020),  https://blog.zoom.us/zoom-virtual-law-firm-virtual-courtroom-during-covid-19/

[5] Id.

[6] Camille Gourdet, Amanda R. Witwer, Lynn Langton, Duren Banks, Michael G. Planty, Dulani Woods, and Brian A. Jackson, Court Appearances in Criminal Proceedings Through Telepresence, RAND Corporation, at 3 (last visited Apr. 13, 2021), https://www.rand.org/content/dam/rand/pubs/research_reports/RR3200/RR3222/RAND_RR3222.pdf

[7] Id.

[8] Id.

[9] Id.

[10] Allie Reed and Madison Alder, Zoom Courts Will Stick Around as Virus Forces Seismic Change, Bloomberg Law (July 30, 2020), https://news.bloomberglaw.com/us-law-week/zoom-courts-will-stick-around-as-virus-forces-seismic-change

[11]Zoom Instruction and Protocol Sheet, 19th Circuit Court (last visited Apr. 13, 2020), https://19thcircuitcourt.state.il.us/DocumentCenter/View/2812/Zoom-Instruction-and-Protocol-Sheet?bidId=

[12] Camille Gourdet, Amanda R. Witwer, Lynn Langton, Duren Banks, Michael G. Planty, Dulani Woods, and Brian A. Jackson, Court Appearances in Criminal Proceedings Through Telepresence, RAND Corporation, at 3 (last visited Apr. 13, 2021), https://www.rand.org/content/dam/rand/pubs/research_reports/RR3200/RR3222/RAND_RR3222.pdf

[13] Id.

[14] Fifth Amendment, Cornell Law School (last visited Apr. 13, 2021), https://www.law.cornell.edu/constitution/fifth_amendment

[15] Sixth Amendment, Cornell Law School (last visited Apr. 13, 2021), https://www.law.cornell.edu/constitution/sixth_amendment

[16] Camille Gourdet, Amanda R. Witwer, Lynn Langton, Duren Banks, Michael G. Planty, Dulani Woods, and Brian A. Jackson, Court Appearances in Criminal Proceedings Through Telepresence, RAND Corporation, at 4 (last visited Apr. 13, 2021), https://www.rand.org/content/dam/rand/pubs/research_reports/RR3200/RR3222/RAND_RR3222.pdf

[17] Allie Reed and Madison Alder, Zoom Courts Will Stick Around as Virus Forces Seismic Change, Bloomberg Law (July 30, 2020), https://news.bloomberglaw.com/us-law-week/zoom-courts-will-stick-around-as-virus-forces-seismic-change

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Melissa Chan, ‘I Want This Over.’ For Victims and the Accused, Justice Is Delayed as COVID-19 Snarls Courts, Time (Feb. 22, 2021), https://time.com/5939482/covid-19-criminal-cases-backlog/

[24] Id.

[25] Camille Gourdet, Amanda R. Witwer, Lynn Langton, Duren Banks, Michael G. Planty, Dulani Woods, and Brian A. Jackson, Court Appearances in Criminal Proceedings Through Telepresence, RAND Corporation, at 4 (last visited Apr. 13, 2021),  https://www.rand.org/content/dam/rand/pubs/research_reports/RR3200/RR3222/RAND_RR3222.pdf

[26] Id.

[27] Id.

[28] Id.

[29] Id. at 5.

[30] Shalini Nangia, Julia A. Perkins, and Erika L. Salerno, The Pros and Cons of Zoom Court Hearings, The National Law Review (May 20, 2020),  https://www.natlawreview.com/article/pros-and-cons-zoom-court-hearings

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Camille Gourdet, Amanda R. Witwer, Lynn Langton, Duren Banks, Michael G. Planty, Dulani Woods, and Brian A. Jackson, Court Appearances in Criminal Proceedings Through Telepresence, RAND Corporation, at 6 (last visited Apr. 13, 2021),   https://www.rand.org/content/dam/rand/pubs/research_reports/RR3200/RR3222/RAND_RR3222.pdf