We hear so much about the new normal, and regardless of the specifics of what that might look like, we’re living it in many ways.
Could the new normal also include virtual court hearings and criminal trials?
A Virtual Case in Texas
While we all know the importance of driving at a safe speed, that’s not always what we put into practice.
One Texas woman made history, perhaps for all the wrong reasons. A Travis County justice of the peace conducted the first virtual criminal trial to deal with the backlog in cases stemming from the pandemic. It was for a misdemeanor speeding ticket that a nurse received for going too fast in a construction zone.
The case was live-streamed on YouTube, and jurors handled their deliberations in a private Zoom room.
The situation left legal experts questioning whether a trial by Zoom takes into consideration Constitutional concerns including the right to a speedy trial and the right to confront witnesses.
The jury ultimately found nurse Calli Kornblau guilty of speeding, but the did acquit her of the violation relating to the construction zone. She received a deferred sentence and has to pay a $50 fine plus court costs.
This was the first jury trial handled this way in the country, but not an altogether new concept since the start of the coronavirus pandemic.
In a Florida court in April, there was a Zoom bench trial deciding on a child abduction case under the Hauge Convention.
Also in April, the same state held a virtual trial for the voting rights of convicted felons, and the public was able to listen by phone.
According to the National Center for State Courts, there have been orders in at least 16 states and the territory of Puerto Rico for virtual hearings related to the coronavirus.
In Texas, there is public access to proceedings via YouTube, and in Cook County, Illinois, the public can watch hearings for bonds online. In Michigan, between April 1 and May 18, the courts counted more than 100,000 hours of hearings online.
So is the future in a more widespread way, or do the cons outweigh the possible pros?
What Are the Pros of Zoom Court?
The pros of Zoom trials are hearings are somewhat straightforward. Perhaps much more so than the cons.
The pros first include the safety factor, as people are still trying to social distance throughout the world.
There’s also a timing factor, which is one of the big reasons many states are pushing forward with virtual hearings.
There were several months earlier in spring when courts were just trying to work their way through emergencies, and now they can start clearing their dockets. Virtual court hearings may help.
There’s a convenience element that would be a possible pro of virtual hearings even outside of a pandemic. It eliminates the need to travel to court and wait in lines.
It can also be cheaper to pay a lawyer when you’re not also paying for their travel time.
In a child custody situation, the judge would be able to actually see first-hand a parents’ home environment.
There is also a theory that more virtual hearings could help attorneys to be more prepared and inclined to reach agreements with opposing counsel.
The courts could benefit from streaming media use in criminal trials. The cases requiring more time would be reduced, for example.
What About the Possible Downsides?
As it stands right now, outside of emergencies, the cons of virtual trials and particularly criminal trials could outweigh the pros. Some of these are things that eventually could be worked out; however, right now they’re an issue.
First, judges may have issues in how they control a virtual courtroom. This could include factors like cell phone usage, coaching witnesses, who’s talking to who, and who is physically present.
There are also possible privacy issues, and there are security issues with things like hacking.
During court cases, you may have to share confidential information, including financial, personal, or medical information. That might be heard on Zoom or visible on Zoom if evidence documents are introduced.
For example, YouTube is supposed to display a warning that you can’t record court hearings, and only the courts themselves are allowed to use the Zoom record feature, but there’s not any way to determine if something has been illegally recorded by a third-party.
There have been studies showing defendants tend to do more poorly in remote proceedings. For example, there was a study in 2010 that found Cook County judges set the bail higher for defendants using closed-circuit TV compared to the ones who were in person during their appearance.
Another potential problem that’s been brought up is the fact that trials by video may impact defendants’ rights under the Confrontation Clause of the Sixth Amendment, which lets them confront witnesses.
There are technical considerations, such as the fact that it has to be ensured that defendants and witnesses have high-speed internet access. At the end of 2017, more than 21 million Americans had no access to high-speed internet.
Then, if a defendant or witness did have to go to a public area to access broadband, that could present health issues during the pandemic.
If a defendant had lower-quality internet or technical issues, it could impact how the jury and judge view them.
There are also things that we might not think of as being as important, but they are. For example, defendants get to talk quietly with their lawyer during a trial and that would be eliminated. That could make it harder for both the defendant and their legal representatives to think and act quickly.
None of the possible downsides necessarily mean the idea of online trials is impossible, but these are considerations that have to be weighed and used to facilitate the process if it’s something that becomes a need in the future and beyond the current environment we’re in.