During the Covid-19 pandemic, with some notable exceptions, the bar has generally applauded the efforts of courts around the country to suspend in-person appearances and make court “virtual” to the extent possible. In video-courtrooms throughout the United States, courts now conduct status conferences, oral arguments, and even trials on video-conferencing platforms like Zoom. Some commentators have even called for court appearances to remain virtual post-pandemic. Although this new adjudicative medium may provide a certain ease of access for attorneys and litigants in many areas of the law, not to mention some cost savings, criminal defendants should remain wary. Previous studies in the bail and immigration contexts in particular suggest that virtual court can prejudice defendants the most.
The use of video for criminal defendants at bail hearings has been in place for decades. A 2010 study of Chicago’s video bail hearings analyzed eight years’ worth of data. The study found that when the eight years of video bail hearings were compared with the eight years before the use of video, the average bail amount increased by 51%, or by nearly $21,000. For charges that continued to have in-person bail hearings during that same period, however, there was no change in bail amounts. The researchers concluded that the change could not be attributed to other factors besides the change from live to video hearings.
Immigration courts have been conducting virtual hearings since the early 1990s and those who have studied the practice have found that virtual hearings result in worse outcomes for respondents in removal and asylum cases. One study of over one hundred immigration proceedings in Chicago concluded that videoconferencing is a poor substitute for in-person hearings and that it particularly disadvantaged non-English speakers. A subsequent more comprehensive study of the federal immigration system’s use of remote testimony also demonstrates that respondents fare worse when they appear by video. The authors analyzed an electronic database of all federal immigration court proceedings from 2007 to 2012. The data was coded at the individual hearing level so that it was known whether the respondent appeared live or remotely. After controlling for other factors such as the judge assigned to the case, the study found that litigants who appeared by video were more likely to be deported, and expressed the hope of beginning “an important conversation about technology’s threat to meaningful litigant participation in the adversarial process.” Another study done in 2019 replicated those findings and confirmed that the use of remote video disadvantaged respondents at immigration hearings at a statistically significant rate.
The downsides of video-court extend to the jury’s perception of witnesses. In one study from the 1990s, researchers studied mock jurors who rated the testimony of child witnesses testifying in court against testimony via closed-circuit television. The mock jurors found the live child witnesses to be more credible, even though the closed-circuit testimony was in fact more accurate.
These studies and others give a variety of explanations for why virtual court appears to disadvantage defendants. First, video testimony forecloses certain nonverbal cues that are essential to effective communication: eye contact, for example, is important in establishing credibility and cannot be reproduced through a live-stream. Second, remote testimony might also be affected by the limitations inherent in the use of video technology: One study of video-conferencing technology emphasized the dehumanizing effect of remote testimony based on the sound limitations of video platforms. The report states that “[t]he audio feature on some videoconferencing technology uses a middle bandwidth filter that cuts off low and high voice frequencies, which are typically used to transmit emotion. The feature removes critical emotional cues that can be used by judicial officers to determine a defendant’s remorse and character.” Third, one of the immigration studies highlighted how “detained litigants assigned to televideo courtrooms exhibited depressed engagement with the adversarial process—they were less likely to retain counsel, apply to remain lawfully in the United States, or seek an immigration benefit known as voluntary departure.”
Courts, too, writing pre-Covid-19, have generally taken the (unsurprising) view that live proceedings are better than virtual ones—for criminal cases especially. As the Sixth Circuit wrote in a 2011 opinion: “[B]eing physically present in the same room with another has certain intangible and difficult to articulate effects that are wholly absent when communicating by video conference.” In the words of another court: it is essential that “the judge  come face-to-face with the primary informational sources, and probe what is obscure, trap what is elusive, and settle what is controversial.” And in 2018, the Seventh Circuit held in United States v. Bethea that it is a structural error for a felony plea hearing to occur without the defendant’s physical presence.
The wheels of justice must continue to turn, notwithstanding Covid-19, and video platforms provide a convenient way for courts and parties to conduct proceedings without meeting in person. But defendants and their attorneys should nevertheless be wary of agreeing to virtual court appearances. Although such appearances have the benefit of limiting the infection risk that comes with in-person contact, much is lost in virtual court, and the pre-Covid-19 studies described above suggest there is a genuine risk that defendants may receive worse outcomes in cases when they appear by video.
Ryan McMenamin, as associate at the firm, assisted in the preparation of this blog.
To read more from Brian A. Jacobs, please visit www.maglaw.com.