Matthew Prager, MJLST Staffer
In the spring of 2022, the United States shut down public spaces in response to the COVID-19 pandemic. The court system did not escape this process, seeing all jury trials paused in March 2022.[1] In this rapidly changing environment, courts scrambled to adjust using a slew of modern telecommunication and video conferencing systems to resume the various aspects of the courtroom system in the virtual world. Despite this radical upheaval to traditional courtroom structure, this new form of court appears here to stay.[2]
Much has been written about the benefits of telecommunication services like Zoom and similar software to the courtroom system.[3] However, while Zoom court has been a boon to many, Zoom-style virtual court appearances also present legal challenges.[4] Some of these problems affect all courtroom participants, while others disproportionally affect highly vulnerable individuals’ ability to participate in the legal system.
Telecommunications, like all forms of technology, is vulnerable to malfunctions and ‘glitches’, and these glitches can have significant disadvantage on a party’s engagement with the legal system. In the most direct sense, glitches– be they video malfunction, audio or microphone failure, or unstable internet connections–can limit a party’s ability to hear and be heard by their attorneys, opposing parties or judge, ultimately compromising their legitimate participation in the legal process.[5]
But these glitches can have effects beyond affecting direct communications. One study found participants evaluated individuals suffering from connection issues as less likable.[6] Another study using mock jurors, found those shown a video on a broken VCR recommend higher prison terms than a group of mock jurors provided with a functional VCR.[7] In effect, technology can act as a third party in a courtroom, and when that third party misbehaves, frustrations can unjustly prejudice a party with deleterious consequences.
Even absent glitches, observing a person through a screen can have a negative impact on how that person is perceived.[8] Researchers have noted this issue even before the pandemic. Online bail hearings conducted by closed-circuit camera led to significantly higher bond amounts than those conducted in person.[9] Simply adjusting the camera angle can alter the perception of a witness in the eyes of the observer.[10]
These issues represent a universal problem for any party in the legal system, but they are especially impactful on the elderly population.[11] Senior citizens often lacks digital literacy with modern and emerging technologies, and may even find their first experience with these telecommunications systems is in a courtroom hearing– that is if they even have access to the necessary technology.[12] These issues can have extreme consequences, with one case of an elderly defendant violating their probation because they failed to navigate a faulty Zoom link.[13] The elderly are especially vulnerable, as issues with technical literacy can be compounded by sensory difficulties. One party with bad eyesight found requiring communication through a screen functionally deprived him of any communication at all.[14]
While there has been some effort to return to the in-person court experience, the benefits of virtual trials are too significant to ignore.[15] Virtual court minimizes transportation costs, allows vulnerable parties to engage in the legal system from the safety and familiarity of their own home and simplifies the logistical tail of the courtroom process. These benefits are indisputable for many participants in the legal system. But these benefits are accompanied by drawbacks, and practicalities aside, the adverse and disproportionate impact on senior citizens in virtual courtrooms should be seen as a problem to solve and not simply endure.
Notes
[1] Debra Cassens Weiss, A slew of federal and state courts suspend trials or close for coronavirus threat, ABA JOURNAL (March 18, 2020) (https://www.abajournal.com/news/article/a-slew-of-federal-and-state-courts-jump-on-the-bandwagon-suspending-trials-for-coronavirus-threat)
[2] How Courts Embraced Technology, Met the Pandemic Challenge, and Revolutionized Their Operations, PEW, December 1, 2021 (https://www.pewtrusts.org/en/research-and-analysis/reports/2021/12/how-courts-embraced-technology-met-the-pandemic-challenge-and-revolutionized-their-operations).
[3] See Amy Petkovsek, A Virtual Path to Justice: Paving Smoother Roads to Courtroom Access, ABA (June 3, 2024) (https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/technology-and-the-law/a-virtual-path-to-justice) (finding that Zoom court: minimizes transportation costs for low-income, disabled or remote parties; allows parties to participate in court from a safe or trusted environment; minimizes disruptions for children who would otherwise miss entire days of school; protects undocumented individuals from the risk of deportation; diminishes courtroom reschedulings from parties lacking access to childcare or transportation and allows immune-compromised and other high health-risk parties to engage in the legal process without exposure to transmittable illnesses).
[4] Daniel Gielchinsky, Returning to Court in a Post-COVID Era: The Pros and Cons of a Virtual Court System, LAW.com (https://www.law.com/dailybusinessreview/2024/03/15/returning-to-court-in-a-post-covid-era-the-pros-and-cons-of-a-virtual-court-system/)
[5] Benefits & Disadvantages of Zoom Court Hearings, APPEL & MORSE, (https://www.appelmorse.com/blog/2020/july/benefits-disadvantages-of-zoom-court-hearings/) (last visited Oct. 7, 2024).
[6] Angela Chang, Zoom Trials as the New Normal: A Cautionary Tale, U. CHI. L. REV. (https://lawreview.uchicago.edu/online-archive/zoom-trials-new-normal-cautionary-tale) (“Participants in that study perceived their conversation partners as less friendly, less active and less cheerful when there were transmission delays. . . .compared to conversations without delays.”).
[7] Id.
[8] Id. “Screen” interactions are remembered less vividly and obscure important nonverbal social cues.
[9] Id.
[10] Shannon Havener, Effects of Videoconferencing on Perception in the Courtroom (2014) (Ph.D. dissertation, Arizona State University).
[11] Virtual Justice? A National Study Analyzing the Transition to Remote Criminal Court, STANFORD CRIMINAL JUSTICE CENTER, Aug. 2021, at 78.
[12] Id. at 79 (describing how some parties lack access to phones, Wi-Fi or any methods of electronic communication).
[13] Ivan Villegas, Elderly Accused Violates Probation, VANGUARD NEWS GROUP (October 21, 2022) (https://davisvanguard.org/2022/10/elderly-accused-violates-probation-zoom-problems-defense-claims/)
[14] John Seasly, Challenges arise as the courtroom goes virtual, Injustice Watch (April 22, 2020) (https://www.injusticewatch.org/judges/court-administration/2020/challenges-arise-as-the-courtroom-goes-virtual/)
[15] Kara Berg, Leading Michigan judges call for return to in-person court proceedings (Oct. 2, 2024, 9:36:00 PM), (https://detroitnews.com/story/news/local/michigan/2024/10/02/leading-michigan-judges-call-for-return-to-in-person-court-proceedings/75484358007/#:~:text=Courts%20began%20heavily%20using%20Zoom,is%20determined%20by%20individual%20judges).