Most people imagine criminal trials as physical spaces where defendants appear in person before a court and where all parties have a designated place in the courtroom. Although this is still standard practice in many jurisdictions, the use of remote technology in criminal proceedings has increased dramatically over the past years. Ultimately, it was the COVID-19 pandemic that led to a mass roll-out of remote criminal justice around the world.1 During the pandemic, using video-links – or in some cases even fully virtual trials – were often the only way criminal proceedings could continue while respecting social distancing rules. Now that the pandemic is behind us, criminal justice systems are facing a fundamental question: whether and how to properly integrate remote technology as a permanent feature of post-pandemic criminal justice. In the face of huge backlogs of cases and dramatic budget cuts in the majority of most Western judicial systems, remote justice appears to be a cost-effective alternative to face-to-face proceedings. However, its actual impact on procedural fairness is a more ambiguous matter. Aspects of the right to a fair trial such as presence, effective participation, and assistance of a lawyer are clearly affected by remote participation of defendants. How they are affected, and to what extent, is not (yet) clear. Similarly, we know very little about whether, and how, the use of technology impacts effective communication in the courtroom. Does it – for example – impact the possibility to empathize with a defendant and to read nonverbal cues? The main theme underlying this Special Issue – whether remote trials2 can be fair trials – concerns a large question with many different angles and layers that – to a large extent – go beyond the purely legal sphere and thus requires an interdisciplinary approach. Most importantly, the expansion of remote justice forces us to rethink our understanding of the traditional criminal trial and its underlying foundations and values.
The Pros and Cons of Remote Criminal Justice: A Multifaceted Matter
Based on our personal experiences during the pandemic, many if not most of us will agree that ‘something is missing’ when we communicate with each other without sharing the same physical environment. This sentiment is often expressed in the context of criminal proceedings. However, it is not easy to define what in fact is so important about being physically present in a courtroom. Some stress the ‘diminished sense of presence’ when appearing remotely,3 while others emphasize that courtrooms are distinctive physical spaces that reinforce the importance of the proceedings that are taking place.4 During and after the pandemic, many legal practitioners voiced that ‘it is just not the same’5 when defendants appear on a screen and some studies indeed illustrated noticeable differences in – for example – the way proceedings are experienced by trial participants in remote settings.6
This potential impact on participants’ experience cannot be overlooked. As has become clear from the well-known procedural justice theory,7 it matters whether defendants feel they were heard and treated fairly. In other words: how people perceive their encounters with criminal justice authorities impacts to what extent they will accept the outcome of their proceedings.8 According to a Dutch study on procedural justice, defendants highly valued interpersonal treatment (how the judge and the prosecutor interacted with them) and due consideration (whether the judge and the prosecutor paid them sufficient attention).9 With the growing body of research indicating that the perceived fairness of the trial affects the legitimacy of the proceedings and the judgment resulting from it, we are now more aware of the importance of meaningful human communication in the courtroom. Therefore, when evaluating whether remote technology should be made a permanent feature of our criminal proceedings, we must move beyond the predominantly legal concept of a fair trial – which is generally more focused on how decisions are made, rather than on how proceedings are perceived and experienced – and take an interdisciplinary approach to assess what is positive and negative about remote participation.10 This is certainly not an easy endeavor as the potential impact of remote technology has many different (often interconnected) aspects and dimensions.11 Without the intention – or illusion – of being exhaustive, these aspects and dimensions can be grouped into the following three main themes: (1) the dynamics of courtroom interactions, (2) judicial decision-making, and (3) fair trial and due process rights. Each theme will be discussed briefly before turning to the specific content of this Special Issue.
1. Whether and how the dynamics of courtroom interactions change in a remote setting
The majority of professional participants will know what is expected of them when they enter a courtroom. They know when to speak, how to address other participants, which behavior is acceptable, and equally important – which behavior is not. In this sense, the courtroom is much more than a physical space; it is a place where justice is done and where – for that reason – certain rituals and symbols are valued. The obligation to stand up when the court enters, to speak only when the judge allows you to, to take an oath when you are asked to testify; these are all rituals that mark the importance of the proceedings.12 In many cases, this so-called solemnity or gravitas of court proceedings is also emphasized by certain physical elements such as the robes (and sometimes wigs) worn by practitioners, the coat of arms or state symbols behind the judges bench or – we are referring to Dutch courtrooms here – a picture of the head of state on the wall. A fundamental question is whether, and if so how, these ritual dynamics are affected when participants appear online. In other words: is physical co-presence indispensable for maintaining these rituals and symbols of justice?13 Closely connected to this is the question of whether, and if so how, communication between participants is affected when they are not in the same location.14 As mentioned before, there is a significant social component to a trial, and it is precisely this element that could be impacted by moving criminal proceedings online, in its entirety or in part. In this respect, it is often argued that we lose a lot of visual information when we see a defendant – or a witness or other participant to the proceedings – on a screen. At first glance, this claim is difficult to refute. When someone appears in court remotely we often only see part of the (upper)body, receive less nonverbal cues such as hand gestures, and it is hard (if not impossible) to make eye contact. But does this also make it more difficult for a judge to assess – for example – the trustworthiness of a statement or the sincerity of remorse? Another aspect of remote communication that is often mentioned in the context of ‘virtual’ participation concerns the ‘humane’ character of the proceedings. Can remote communication impact the capacity of the decisionmaker to develop or exercise empathy towards the defendant? Does participating via a screen make the process less ‘personal’ and can it add to feelings of detachment or alienation on the part of the defendant? And does it mean that it will be harder for a judge to maintain his authority and control of the proceedings? Overall, there are many different ways in which remote justice challenges our traditional ideas of effective communication among trial participants, and we are still far away from formulating satisfactory answers to the questions mentioned above.
2. Whether and how judicial decision-making is affected by using remote technology
A second main theme emerging from the debate concerning the pros and cons of remote participation focuses on decision-making. Fact-finding is a core component of the criminal process. What is unique about fact-finding and decision-making in the context of a criminal trial, is that the legitimacy of proceedings is not only dependent on the veracity of the outcome but also – and equally – on the fairness of the proceedings that led to this result.15 As discussed earlier in the context of procedural justice theory, it is not only the outcome of the proceedings that matter, but also whether defendants feel they were treated fairly by the authorities handling their case. Consequently, any changes to the process of decision-making – which the evaluation of evidence is an integral part of – must be carefully considered. What does this mean in the context of remote participation? Many questions arise in this respect. For example: can remote participation affect how participants are perceived by the judge and does this potentially impact the judge’s (or jury’s) impartiality? And how, and to what extent, does remote participation impact a decisionmakers ability to assess whether someone is telling the truth? In many – mostly common law – criminal justice systems, orality and face-to-face confrontation (cross-examination) are considered integral parts of accurate fact-finding. But can these only be achieved to a satisfactory degree when trial participants are in each other’s physical proximity? While many questions remain unanswered, we do know that communicating with someone on a screen increases cognitive load (commonly known as ‘Zoom fatigue’) and potentially reduces the accessibility and depth of information that can be conveyed. It is therefore not too far-fetched to assume that it might also affect decision-making, to a certain extent.16
While much of what is mentioned above seems to refer to the ‘negative’ effects of remote participation, it should be mentioned that appearing via video-link might also have benefits for the evidentiary process. Some studies indicate that certain (vulnerable) witnesses and defendants feel more at ease when appearing in court via video-link.17 Furthermore, remote participation can be utilized to facilitate the taking of oral testimony before trial, including the use of pre-recorded statements from witnesses or defendants.18 In this manner, it can enhance the level of orality of trials while still keeping efficiency in mind: something that could prove beneficial in a criminal justice system such as the Dutch one, where orality and immediacy are currently mostly theoretical concepts.
3. How these changes affect our traditional ideas of a fair trial and due process rights
While many of the questions mentioned under themes 1 and 2 above are strongly related to the social sciences (such as sociology, psychology, criminology), this third theme deals with how the potential changes impact our traditional – predominantly legal – ideas of fair trial and due process. One of the questions which arises in this respect is whether our fair trial rights are adequate and sufficient for assessing procedural fairness in this new remote setting, or do we need adjusted or potentially new procedural safeguards? Traditional fair trial concepts such as the right to be present, the right to confront witnesses, and the right to effective participation are without a doubt impacted by the use of remote technology. From a legal perspective, however, we are still struggling with what (if at all) this should mean for the future of our criminal trial.19 Pressing questions include: does the right to be present include an inalienable right to be physically present in the courtroom, in the sense that remote participation can only take place when the defendant knowingly and willingly agrees to this? How can effective legal assistance be realized when defendants appear on a screen? How does appearing remotely – for example, from a prison – relate to the right to be presumed innocent?20 How can the right to examine and confront witnesses or experts be exercised in a remote setting? Finally, what does it mean for the public nature of the criminal trial? When faced with these questions, lawyers – understandably – almost automatically turn to the classic and (at least in the European context) dominant concept of a fair trial, as formulated in article 6 of the European Convention on Human Rights and article 47 of the Charter of Fundamental Rights of the European Union.21 But it remains to be seen whether this traditional fair trial concept provides the necessary standards that are needed to critically assess the changing landscape of the trial in the digital age and its impact on our understanding of procedural fairness. In this sense, the third theme challenges us to face the limitations of our current legal framework and to ask ourselves which values of fair criminal justice should really be upheld in – and beyond – the 21st century.22
Adding to the Complexity
The themes explored above – which are clearly interconnected and in no way meant to be exhaustive – inspire us to re-evaluate long established traditions of the criminal trial. Traditions which we should not protect at all costs simply because ‘this is the way it has always been done’, but because they actually serve a purpose. We should also not romanticize our current criminal trial systems, which are often plagued with excessive use of legal jargon, lack or resources, and inordinate delays, such that they are far from exemplary in terms of procedural efficiency or accessibility for court users. Furthermore, we should undoubtedly take account of the considerable variations which exists among criminal justice traditions, for example: systems that use lay decisionmakers (lay judges or juries) versus systems with only professional judges; systems that strongly adhere to principles of immediacy and orality as opposed to systems which mainly focus on the written file; and systems where physical presence of the defendant is deemed an indispensable condition for a fair trial as opposed to systems where trials in absentia are widely accepted. Considering the fundamental differences between criminal justice systems, we must conclude that there is no such thing as “The Trial”, as a homogenous entity. What happens during a trial – and to what extent the trial is considered as a moment in which the immediate presentation of evidence takes place – depends to a large extent on the prevailing legal tradition in a given context. In addition to this, we should recall the relevance of remote technology for other preparatory hearings and procedural steps within the wider context of criminal justice proceedings. While this Special Issue mainly considers trials, there are also a wide variety of preparatory, non-trial proceedings – such as sentencing, bail, and plea hearings – that should be taken into account when discussing the desirability of using remote technology. Ultimately, when discussing whether to use remote technology, its potential impact on a defendant is a factor of paramount importance which must be taken into consideration. It should be acknowledged, however, that there is a wide variety of defendants, with varying degrees of vulnerability, for example: defendants who are very young or old, defendants who are mentally or physically vulnerable, defendants who have communication difficulties or are facing a language barrier. Thus, just as it oversimplifies reality to speak of “The Trial” as a monolith, it is also not realistic to refer to “The Defendant”. These important variations need to be taken into consideration when discussing and evaluating the potential impact of remote participation for a defendant.
This Special Issue: from Potential Biases to the Ripple Effects beyond the Courtroom
Arising from the discussion provided above, it becomes clear that technology is not a neutral insertion or just another layer added to the process: it can significantly alter the scope and content of criminal proceedings.23 However, much of the current debate is still based on assumptions24 and more in-depth research is needed. This need for a broader understanding of the implications of remote criminal justice was the inspiration for this Special Issue and the associated call for papers. It does not seek to provide an answer to a simple ‘yes’ or ‘no’ question: do we want to proceed with remote technology or not? After all, it is unrealistic to assume that criminal justice systems of the future will not make use of the potential which communication technology has to offer.25 The aim of the Special Issue is to contribute to formulating an answer to a much more nuanced question: how and to what extent can remote technology be used without compromising the fairness of our criminal proceedings?
We were fortunate enough to select contributions from leading experts in the field dealing with various aspects of remote participation. The authors represent the perspectives of different disciplines (sociology, psychology, criminology, and law), as well as a variety of jurisdictions (ranging from Australia to the Netherlands), and draw from recently conducted empirical research such as interviews with practitioners and experimental studies – giving this Special Issue an important practical dimension. Some of the contributions take a predominantly legal approach while focusing on different aspects of a fair trial. In doing so, authors focus on specific components of the right to a fair trial (Beazley and Van de Gaer who discuss the right to be present and the right to be tried within a reasonable time in remote settings during the pandemic), while others zoom in on the effects of remote participation on the possibilities for defense lawyers to provide effective legal assistance (Pivaty who identifies certain burdens for defense lawyers that are not equally shared by other procedural actors). Along the same lines, but in a much broader context, another contribution deals with the impact of videoconferencing on the fair trial rights of the defendant, including the right to examine witnesses, the equality of arms, the right to legal assistance, the right to an interpreter, and the publicity of a trial (Hirsch Ballin and Castelijn who suggest several procedural adjustments – which together form a ‘procedural toolbox’ – that can help a judge to decide on the use of videoconferencing in a specific case). While much of the current debate focuses on the right of the defendant to be physically present, one of the contributions in this Special Issue takes a rather original and thought-provoking approach, discussing whether – and to what extent – defendants could claim a right to participate remotely (Panzavolta who argues that in certain circumstances remote participation might be a legitimate choice for a defense strategy). While the contributions mentioned above focused mainly on national-level jurisdictions, this Special Issue also includes a contribution that transcends this and critically reflects on remote participation in proceedings before the International Criminal Court (Dubuc who discusses how the approach of the International Criminal Court to remote participation may conflict with certain aspects of the right to a fair trial, specifically the right to be present and the right to effective participation). Other contributions move away from the purely legal context and approach the topic of remote criminal justice from the perspective of the social sciences. One contributor discusses – based on two experiments – whether appearing remotely may have a negative impact on the fairness of criminal proceedings, in that it has the potential to bias court decisions (Muir, Newman and Rossner who examine the extent to which visual background cues impact impressions of defendants and decisions regarding their guilt). Another contribution examines the effects of remote criminal justice on expressions and perceptions of emotion (McKay and Macintosh who – drawing on fieldwork conducted in Australia – discuss how remote proceedings may lead to a decrease of empathetic engagement in criminal proceedings). Finally, there is a contribution discussing the taking of evidence from witnesses in a remote setting (Martschuk, Tait, Goodman-Delahunty, Wallace and Rowden who – through experiments – have tested the impact of video links on certain elements of procedural justice and the capacity to build rapport with the remote participant).
Overall, the contributions in this Special Issue clearly illustrate the complexity of the central question: ‘Can remote justice be fair?’ It is our hope that this Issue will contribute to the ongoing debate on the future of remote criminal justice, provide foundations for future research, and inspire academics, practitioners, and policymakers around the world to consider the pros and cons of virtual criminal justice. The ultimate aim being to make optimal use of the potential of technologically enhanced trials, while maintaining the necessary respect for the overall fairness of the trial, and the integrity of our criminal justice systems.
Notes
[1] It should not be forgotten that many justice systems were already using technology for remote communication years before the pandemic. It was – for example – already introduced in the United States as early as the seventies of the last century, see Jenia Iontcheva Turner, ‘Remote Criminal Justice’ [2021] 53 Texas Tech Law Review 201.
[2] For the purpose of this Special Issue remote justice is being defined as ‘all situations where one or more participants attend the hearing from a remote location via video link or using other means of communication technology’ (also commonly referred to as ‘hybrid hearings’). As indicated in the call for papers, contributions may also deal with (full) virtual hearings referring to proceedings where all participants attend online.
[3] Neal Feigenson, ‘Adjudication on Zoom and Beyond: Human Interaction in Virtual Courts’ [2023] 62 Washburn Law Journal 479.
[4] Susan Bandes and Neal Feigenson, ‘Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom’ [2020] 68 Buffalo Law Review 1316.
[5] See for example Janet Clark, HMCTS, Evaluations of remote hearings during the Covid 19 pandemic, research report, December 2021 <https://assets.publishing.service.gov.uk/media/61b71ebd8fa8f5037b09c7b1/Evaluation_of_remote_hearings_v23.pdf> accessed 28 August 2024; Sabine Drooglever Fortuyn, ‘Onderzoek videorechtspraak: echt contact met rechter blijft onmisbaar’ [2020] 100 Advocatenblad 11. Illustrative is also the blog post by an anonymous judge on this issue: ‘Remote justice – a view of the pros and cons from an anonymous judge’ Transform Justice [2020], <https://www.transformjustice.org.uk/news-insight/remote-justice-a-view-of-the-pros-and-cons-from-an-anonymous-judge/> accessed 28 August 2024.
[6] In pilots for bail hearings and other studies conducted before and during the COVID-19 pandemic, defendants felt less ‘seen’ by the judge, more distant, and felt they had fewer opportunities to make a good impression. See for example Nigel Fielding, Sabine Braun and Graham Hieke ‘Video enabled justice evaluation. Final report version 11’, University of Surrey (2020), <https://www.sussex-pcc.gov.uk/media/4862/vej-final-report-ver-12.pdf> accessed 28 August 2024, 97–98.
[7] John Thibaut and Laurens Walker, Procedural Justice: A Psychological Analysis, Hillsdale (N.J. Lawrence Erlbaum Associates, 1975).
[8] Steven Blader and Tom R Tyler, ‘A Four-component Model of Procedural Justice: Defining the Meaning of a “Fair” Process’ [2003] 29 Personality and Social Psychology Bulletin 747, 747–758, 748–749 and 755–756; Tom R. Tyler, ‘Procedural Justice and the Courts’ [2007] 44 Court Review 26.
[9] Lisa Ansems, Procedural Justice on Trial: A Critical Test of Perceived Procedural Justice from the Perspective of Criminal Defendants (Utrecht University, 2021).
[10] Christina Peristeridou and Dorris de Vocht ‘I’m Not a Cat! Remote Criminal Justice and a Human-Centred Approach to the Legitimacy of the Trial’ [2023] 30 Maastricht Journal of European and Comparative Law97, 98–99.
[11] Dorris de Vocht, ‘Trials by video link after the pandemic: the pros and cons of the expansion of virtual justice’ [2022] 8 China EU Law Journal 33.
[12] The sociological importance of justice rituals has been discussed in academic literature on more than one occasion. See for example the work of Rowden who stresses that ‘[i]f a defendant being sentenced lacks a sense that they are in a courtroom setting, as a result it may also mean that they do not recognize that they are participating in a group-performed ritual, with a long tradition, that is enforcing the shared values of that society. This may impact upon perceptions that all participants have of both the outcome and the process’. Emma Rowden, ‘Distributed Courts and Legitimacy: What do we Lose when we Lose the Courthouse?’ [2018] 2 Law, Culture and the Humanities 263, 277.
[13] See Feigenson 2023 (n 3) 486–487, stressing the importance of ‘the sense of being together in a shared world’ while without physical proximity we risk a diminished sense of presence which may result in a sense of disconnection and influence feelings of significance of the trial.
[14] For a comprehensive discussion of why legal proceedings feel – and are – different on Zoom: Feigenson 2023 (n 3) 466 and further.
[15] Duff and others describe the criminal trial as a human process of calling to account another human: ‘[t]he rightness of the outcome — of the verdict — is not […] simply a matter of accuracy, but also of the process through which it was reached’. Anthony Duff and others, The Trial on Trial. Volume 3: Towards a Normative Theory of the Trial (Hart Publishing 2007) 89. See also Sarah Summers ‘The epistemic ambitions of the criminal trials: truth, proof, and rights’ [2023] 1 International Journal on Evidential Legal Reasoning’ 1.
[16] Some empirical studies also point in this direction. See for example an older study from the United States illustrating that judges are more inclined to set higher bail amounts when hearing defendants remotely: Shari Seidman Diamond and others, ‘Efficiency and cost: The impact of videoconferenced hearings on bail decisions’ [2010] 3 Journal of Criminal Law and Criminology 869, 869–902, 877–878 and 897. There is also psychological research indicating that witnesses who are heard via video-link are considered less trustworthy than those who testify in person, see Sara Landstrom, ‘Children’s live and videotaped testimonies: How presentation mode affects observers’ perception, assessment and memory’ [2007] 12 Legal and Criminological Psychology 333, 344–345, Gail S Goodman and others, ‘Face-to-face confrontation: Effects of closed-circuit technology on children’s eyewitness testimony and jurors’ decisions’ [1998] 22 Law and Human Behavior 165, 165–203 and 195–196; Holly K Orcutt and others, ‘Detecting deception in children’s testimony: Factfinders’ abilities to reach the truth in open court and closed-circuit trials’ [2001] 4 Law and Human Behavior 339, 339–372, 357–358 and 366.
[18] John Jackson, ‘Rethinking the Orality/Confrontation Paradigm in a World of Remote Evidence’ [2023] Criminal Law Review 265.
[19] Gradually, European case-law on this topic is emerging. There are various judgments of the European Court of Human Rights on remote participation in the context of the right to a fair trial, one of the earliest and most important decisions being Marcello Viola v. Italy App no 45106/04 (ECtHR 5 October 2006). Recently, the European Court of Justice has made a preliminary ruling on the compatibility of remote participation with Art. 8(1) of Directive 2016/343, which prescribes the right to be present at one’s trial. Case C-760/22 Request for a preliminary ruling from the Sofiyski gradski sad (Bulgaria) [2022].
[20] Carolyn McKay, The Pixelated Prisoner: The Pixelated Prisoner: Prison Video Links, Court ‘Appearance’ and the Justice Matrix (Routledge, 2018).
[21] For comparison: in the United States assessing the fairness of remote criminal proceedings will require analyzing whether, and to what extent, it complies with fundamental constitutional principles. For a comprehensive analysis of whether remote criminal justice has so far complied with core constitutional principles of criminal justice, see Jenia Turner, ‘The emerging constitutional law of remote criminal justice’ [2024] 59 Wake Forest Law Review.
[22] For an inspiring account on how, and to what extent, new emerging technologies can be compatible with a fair trial, see Sabine Gless, ‘Could Robot Judges Believe? Epistemic Ambitions of the Criminal Trial as we Approach the Digital Age. A comment on Sarah Summers “Epistemic Ambitions of the Criminal Trial: Truth, Proof, and Rights”’ [2023] 5 International Journal on Evidential Legal Reasoning 169.
[23] Expressed as early as 2013, by Emma Rowden: ’Inserting audio-visual technology in the courtroom involves disrupting long-established social and physical relationships’, Emma Rowden, ‘Virtual courts and putting ‘summary’ back into ‘summary justice’: Merely brief, or unjust?’ in Renée Tobe, Jonathan Simon and Nicholas Temple (eds.), Architecture and justice: Judicial meanings in the public realm (Ashgate Publishing, 2013) 108.
[25] The future of technology in the courtroom will most likely include much more than ‘only’ remote participation. There are – for example – already experiments with using holograms and avatars in the context of criminal justice proceedings. On the use of holograms, see this pilot in the US: <https://www.euronews.com/next/2023/06/14/us-mock-trial-tests-hologram-witnesses-on-the-stand> accessed 28 August 2024.
Acknowledgements
This Special Issue has been a rewarding experience primarily due to the wonderful colleagues with whom we worked. First and foremost we express our sincere thanks to the authors who provided the content for this Special Issue. We are also very grateful to our reviewers who were willing to conduct the double blind peer review and by doing so helped us select the submissions with the highest quality possible. Furthermore, we express our sincere gratitude to Marline Wijsman, student assistant at the Department of Criminal Law, Tilburg Law School, whose contribution to the smooth running of the reviewing and publication process was indispensable. Many thanks also to Rory Sugrue for proofreading the editorial. Finally, we extend our sincere gratitude to Hans Lindahl, Karol Schlitt, Sharngan Aravindakshan, and the editorial team and board of Tilburg Law Review for their assistance and for the opportunity to dedicate this Special Issue to the fascinating topic of remote justice.
Competing Interests
The authors have no competing interests to declare.