Does an online trial mean that justice is just “virtual” rather than real?
Ken Broda-Bahm* – With the extended pandemic restrictions and the resulting court backlogs across the country, we have moved tentatively into the world of online trials and hearings, with participants joining from different locations. In that distributed setting, many critics have argued that the resulting process just cannot possibly be the same.
The participants will feel and look isolated, eye contact will be impossible, witnesses will be less credible, accusers and defendants will be less sympathetic, and jurors’ minds will wander. The result, they say, is an inability to truly confront witnesses, a reduction in courtroom solemnity, and the loss of a fair trial.
But are those suspicions justified? Does an online trial mean that justice is just “virtual” rather than real? Ultimately, this is an empirical question, to be answered not with fears and assumptions, but with comparative data.
We need to answer the potential drawbacks and benefits when the same content is delivered by video or in person. In the past year, practitioners and academics have not had good opportunities for the kinds of large scale controlled studies that we will ultimately need. And, it turns out, the prior research on the differences between in-person and on-screen communications has not been particularly robust in a courtroom context. However, there are some studies that strongly suggests that at least some of these fears are overblown.
One study that caught my eye (Tait et al., 2017) comes from a field experiment in New South Wales, Australia. Well before our current situation forced many of us onto Zoom screens — back in 2017 — a team of academics in law, psychology, and sociology, from three Australian universities, looked at the effects of high quality immersive technology used for distributed courtroom proceedings. Their focus was a bit different than what is occurring online in U.S. courtrooms:
By “distributed courtroom,” they mean dispersed sites connected by video links, but then assembled using multiple large screens in a physical courtroom. Rather than parties all bunched, Zoom style, on a single computer monitor, you have a judge on the bench and a jury in the box, but then you have parties and witnesses appearing on separate screens and located where they would be located if physically present in the courtroom.
The researchers took a very systematic and controlled approach to looking at the effects of this layout, and their experience helps us to understand some of the effects of appearing on-screen versus appearing in-person for one’s day in court. Drawing from the McGlothlin e-courtroom at the College of William and Mary in Virginia, the researchers used a Sydney courtroom and two associated rooms set up as remote locations.
Recreating a criminal case using actors, they employed four conditions, varying both whether participants were in-person or by video, and whether defendant was seated with their attorney, or in the European style of being in “the dock,” a separate location for accused.
Their conclusion? “The study showed that the move toward virtual justice is a viable option for courts to consider: technology improves audibility and visibility of the trial, does not compromise the presumption of innocence and does not make the trial seem less ‘real’ to jurors.” In this post, I will highlight three main points coming out of the study, and what they mean as U.S. courts turn with greater frequency to online and distributed proceedings.
The Worst Fears Were Not Realized
Focusing on the decision makers, researchers saw no significant differences on jurors saying that their minds wandered, found it hard to concentrate, felt completely involved, felt the layout was realistic, or felt like they were viewing a real trial. There were also no differences on whether the defendant was viewed as honest, convincing, trustworthy, peaceful, or harmless. The defendant was seen as more “remote” when testifying by video (understandably), but not more “isolated,” or more “stressed.”
In person, the defendant was considered more “likable.” But despite that, ultimately, the in-person defendant was also slightly more likely to be considered guilty.
Views on the defendant also interacted with whether the defendant was presented alone (on video or in “the dock,”) versus appearing side by side with their lawyer:
What the technology made possible was for the accused to sit beside his lawyer in the remote room. It was the combination of these two elements – proximity to lawyer and appearance on a screen – that delivered the most accurate verdicts (in terms of the facts built into the script). In other words, the distributed court condition was the one that best protected the presumption of innocence.”
One additional benefit is that the on-screen view also improves the jurors’ reported ability to hear the accused clearly and to see expressions of the accused’s face and to see his gestures and other movements.
But the Effects May Be Highly Varied
As the comparison of on-screen versus in-person courtroom communication continues to be studied, it is unlikely that the effects will end up being uniform. In other words, attorneys, witnesses, and parties probably won’t be seen as consistently more or less credible in one mode rather than the other. Some of the research already underscores that inconsistency. For example, in the Australian research, they cite one study showing no credibility differences between in-person and video-linked testimony, but another study showing that the witness presenting by video was viewed as less accurate, attractive, intelligent, and honest than the in-person witness. Apparently, sometimes the mode of presentation matters, and sometimes it doesn’t.
In their own study, the Australian research group found that the mode mattered for the prosecutor, but not for the defense attorney. The prosecutor was seen as less aggressive, less prepared, and less believable on video. For the defense attorney, however, there were no significant differences. Rather than taking from this the superficial conclusion that we will never really know; it is more accurate to say that the effect will nearly always be multi-factorial. In other words, it depends on the person, the context, and the tone and content of the communication itself. Because each study is going to be limited to the scenario that was tested, the true picture is likely to emerge slowly as we are able to test more and more scenarios.
The Trial Setting Arrangements Matter
Importantly, the authors were not looking at the effects of a trial that is fully on Zoom, but instead, looked at a courtroom that is arranged so as to include some parties on video, while others attended in-person. So, it is more like a “hybrid” than a fully online trial. In addition, they also tested very sophisticated ways of including those who were presenting remotely. It is clear from the write-up that they paid a great deal of attention to detail, for example, making those on-screen the same size that they would be if present in person, and locating audio speakers so the sound is directional and comes from where the image of each speaker is located, rather than from a common audio source. They used HD video and audio. Cameras and screens were also positioned, so as to replicate the feeling of eye contact and to ensure that gaze directions were the same as they would be in the courtroom. It is quite likely that the jurors’ conclusion that the distributed trials were no less “real” comes from this attention to detail in reproducing the in-person experience.
The team concludes that, with the right preparation, the online courtroom holds the potential for a better experience, and part of this was well on its way before the pandemic:
Courts [in 2017] are increasingly becoming network command centres, with participants joining in from legal offices, judicial chambers, psychiatric hospitals or prisons, as well as custom-built remote witness facilities; witnesses testify in war crimes trials from across the world. Images, written documents and data are transmitted in digital form as part of the justice process; the ‘audiovisual court’ promises to deliver richer and faster communication than traditional courts.”
They note, as well, that practice tends to run out ahead of the research, and our pandemic-induced adaptations made since then have been no exception. Hopefully, one aspect of our long-awaited “return to normal,” is that we have a greater chance to adapt and study hybrid models for including remote technology into the litigation process.
About the Author:
*Ken Broda-Bahm has provided research and strategic advice on several hundred cases across the country for the past 23 years, applying a doctorate in communication emphasizing the areas of legal persuasion and rhetoric. As a tenured Associate Professor of Communication Studies, Dr. Broda-Bahm has taught courses including legal communication, argumentation, persuasion, and research methods. He has trained and consulted in 19 countries around the world and is Past President of the American Society of Trial Consultants. See his bio info here.
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