‘Criminal trials are all about people and emotions’ (SCJ3)
Introduction
Courtroom interactions can be laden with emotion and drama.1 This is particularly so in criminal procedure, where sympathy, compassion, guilt, shame, regret, remorse, mercy, vengeance, outrage and disgust are frequently expressed or evoked.2 Within a ‘traditional’ physical courtroom, these emotions might be experienced by a range of participants including the judiciary, jury, lawyers, witnesses, accused and public gallery. What happens when remote communication technologies are introduced into that space and individuals are distanced from the courtroom? This article examines the effect that remote criminal justice can have on courtroom interactions, lawyer-client conferencing and witness interviews, focusing on the expression of emotions and empathy.
Much has been written regarding traditional courtrooms as sombre, co-present spaces of live human-to-human engagement, orality and adversarial advocacy, testimonial performance and witness demeanour assessments.3 Collectively, these in-person, physical interactions within shared civic buildings have been valorised as means to publicly prosecute and defend criminal matters. While courtrooms are assumed to function as calm, dispassionate and detached spaces,4 criminal procedures can be emotionally expressive due to the recounting of the alleged individual harms and victimisation inflicted, and the ruptures and transgressions felt throughout society. As an example, primary victims to serious crimes, and their families, may present a Victim Impact Statement to express their emotional distress, suffering and psychological harm,5 which might elicit empathy and amplify punitive consequences.6 Conversely, mitigating factors in sentencing an offender can include insubstantial emotional harm7 and the expression of an offender’s emotion of remorse.8 For an accused person or convicted offender, there may be emotions arising from remorse, their desire to robustly defend their prosecution, confront their accusers, mitigate their punishment or seek liberty.
However, the accelerating digitalisation of criminal justice since the 2020 Covid-19 pandemic has seen the roll-out of remote communication technologies for courtroom participants that are challenging the physical paradigm of criminal procedure.9 For vulnerable prosecution witnesses and complainants, for example, in sensitive sexual and domestic violence cases, there is the increasing trauma-informed use of pre-recorded evidence and remote witness suites to shield them from emotional trauma and intimidation, as well as increasing use of videolinks for remote victim conferencing. For incarcerated defendants and offenders, there are remote hearings between prisons and courtrooms for criminal procedures such as bail,10 sentencing11 and parole12 to minimise their transportation, in addition to remote modes of lawyer-client conferencing.13 In all such instances, courts and lawyers need to be alive to the impacts of remote communication technologies, including videolinks, and how such technologies may mediate or ‘blunt’ expressions and perceptions of emotion and empathy.
This article investigates the effect videolink technologies may have on courtroom interactions and legal conferencing (that is, consultations with victims or clients before, during or after court matters), focusing on emotion and empathy. We examine the assumption that replacing physical proximity with videoconferencing technologies necessarily means that ‘something’, for instance, emotion, is lost. To do this, we first review literature concerning emotion, empathy and the law in general terms before delving deeper into the specifics of the relevance of emotion and empathy in vulnerable witness testimony, assessments of witness demeanour and credibility, and the expression of offenders’ remorse. We then draw on our empirical fieldwork interview data with 85 Australian judicial officers, lawyers and affiliated criminal justice professionals, conducted as part of the nation-wide ‘Digital Criminal Justice Project: Vulnerability and the Digital Subject’ DE210100586 (2021–2024), to understand the transition to remote modes and the affective dimensions of remote technologies.
In line with this special issue, we use the term ‘remote criminal justice’, to cover all situations where participants attend a court hearing from a remote location via videoconferencing or similar communication technologies. Furthermore, both emotion and empathy are intangible concepts with conflicting definitions depending on the context. For our purposes, we suggest that emotion relates to strong, subjective feelings or arousal provoked by situations, being responses with fundamental biological, social and cultural functions.14 Empathy relates to understanding and relating to another person’s feelings, either by being aware of others’ feelings (cognitive empathy) or feeling what another person feels (affective empathy),15 sometimes expressed as ‘emotional contagion’ or mirroring.16 Empathy may have an epistemological function in allowing decision-makers to know how other people feel,17 noteworthy in the epistemic environment of a criminal trial.18
Background and Method
Since the late 20th century, remote communication technologies have been gradually introduced into criminal courtrooms and various other justice endpoints including remote witness facilities, prisons, juvenile justice, police stations, chambers and legal offices.19 This digital transformation is premised on a number of rationales, including the need to modernise justice in a digital society and achieve efficiency targets, improve access for expert and overseas witnesses, minimise prison-court transportation and reduce re-traumatisation of complainants, victims and vulnerable witnesses.20
Our ‘Digital Criminal Justice Project: Vulnerability and the Digital Subject’ focuses on the use of videolinks by vulnerable witnesses, complainants, victims and defendants and the benefits and challenges of remote criminal justice from the perspective of judicial officers, lawyers and associated professionals. The overall project adopts a qualitative mixed methods approach being the content analysis of relevant Australian case law as well as the extensive collation of empirical data across every Australian state and territory via 90 online Qualtrics survey responses, and 85 semi-structured interviews with Australian judicial officers, defence lawyers, prosecutors and affiliated justice professionals, such as witness intermediaries and witness support officers. All participants have been de-identified in accordance with the University of Sydney human research ethics requirements.21 At the time of writing, we are still in the process of thematic coding and analysing all these data, so this article presents our preliminary findings. Our research design is reflective of typical qualitative methods of data collection involving interviews, surveys and observations to elicit descriptive accounts that are then coded and analysed to discover patterns, meanings and new knowledge. In this way, qualitative methods provide a depth of understanding of a particular life world.22 Collectively, these qualitative methods enable us to develop an understanding of the real world machinations of remote criminal procedure and legal conferencing from the perspectives of criminal justice professionals. Both the online survey and interviews were designed to yield open-text responses to the questions and participants were recruited through direct contact with state and territory judicial and legal professional bodies and some word-of-mouth referrals. The interviews were conducted throughout the following cities, regions and remote locations: Adelaide, Alice Springs, Brisbane, Broken Hill, Cairns, Canberra, Darwin, Dubbo, Griffith, Hobart, Kununurra, Launceston, Melbourne, Newcastle, Perth and Sydney:
Judges: 9
Magistrates: 6
Prosecutors: 19
Defence Lawyers (inc. Legal Aid, North Australian Aboriginal Justice Agency, Aboriginal Legal Services, community & private barristers & solicitors): 39
Criminal Justice Professionals (including Witness Assistance Officers, Witness Intermediaries, Youth Justice, Victim-survivor support): 12
TOTAL: 85 interview participants
The benefit of the online survey was in providing an efficient way to capture high volume, comprehensive and accurate insights. Its limitation was that it was a static platform, lacking the dynamism of conversational interviews. The semi-structured interviews, on the other hand, were more organic and generally produced more surprising responses. They were all audio-recorded, transcribed and were mostly conducted face-to-face, although, due to Covid-19 issues continuing 2022–2023, some interviews were conducted using Microsoft Teams or Zoom. The interviews yielded rich data of the complex, real world situation of remote criminal justice from legal professionals’ perspectives. In this article, we focus on these rich interview data as several judicial officers and criminal lawyers raised concerns regarding the perceived blunting of the emotional impact of the remote mode. That is, the suggestion was that remote communication technologies transform the affective dimensions of criminal proceedings and legal conferencing. The acknowledgement of emotion by interview participants was particularly interesting as none of the interview questions directly raised that specific issue. In the following section, we review relevant literature concerning the significance of emotion and empathy in legal proceedings and lawyer-client conferencing.
Emotion, Empathy and the Law: Literature
Impartiality is fundamental to the operation of courts.23 Courts of law are presumed to be dispassionate sites of rational reasoning and regulated ritual. Consequently, according to Dahlberg, there is a fundamental opposition and tension between emotion and legal procedure, as legal procedure encompasses order and reason, whereas emotion represents disorder and unreason. 24 Roach Anleu and Mack argue that while emotion is considered irrational and unstable leading to ‘a conventional disavowal of emotion’ in judicial work, emotions and management of the emotional equilibrium of a courtroom are increasingly recognised as significant to judicial officers.25 Indeed, Karstedt suggests there is a process of ‘re-emotionalization of law’ that explicitly acknowledges the role of emotion and affect in discourse concerning crime, justice and policy.26 She writes that intense and contradictory emotions pervade the criminal justice system and ‘[o]ffenders, victims and witnesses bring their emotions to the courtroom’.27 Undoubtedly, the administration of justice really ‘stands at the fulcrum of … deeply emotional … struggles.’28
Despite the challenges to analytical reasoning, criminal cases are filled with comparisons and analyses of emotions such as provocation, sudden anger and loss of self-control and ‘hatred, resentment, fear or revenge.’29 Judicial officers sometimes utilise emotional metaphors such as ‘in cold blood’, a most culpable emotional state, versus ‘a crime of passion’, that might be considered less morally blameworthy. According to Gleeson CJ:
‘The necessity to resort to metaphor in expounding the law [on the defence of provocation] … is disconcerting. References to supposed raising or lowering blood temperature, reason becoming unseated, and passion mastering understanding, seem calculated to confound … analytical reasoning.’30
Kahan and Nussbaum argue that while ‘[e]motions are ubiquitous in criminal law, as they are in life’, there is a need to examine how the possibly ‘nonreasoning forces’ of emotions impact legal assessments.31 Therefore, while the operation of the law aspires to impartiality and logic, simultaneously, legal conflicts are frequently emotionally charged, generating a dialectical relationship between law and emotion.32 Particularly in the context of adversarial criminal justice systems and jury trials, Dahlberg argues that emotion and affect are central, although often unacknowledged.33 In criminal proceedings, witnesses, complainants and victims might express distress, elicit sympathy, compassion and empathy.34 Conversely, accused people and offenders might elicit outrage and disgust while perhaps internally experiencing shame and remorse.35 The emotions of victims, complainants, witnesses and defendants can frame how they are assessed for the purposes of credibility during examination-in-chief and cross-examination. Likewise, empathetic interactions between decision-makers and parties may occur in court.36
In the following section, we examine two central themes that emerge in the literature regarding how emotion and affect are relevant in criminal justice: first, how the emotional presentation of witnesses, complainants and victims may impact their credibility as well as feelings of empathy on the part of judges and juries; and secondly, the expression of remorse by offenders for the purposes of sentencing. In each section, we review developing scholarship concerning emotion assessments when remote communication technologies are used. This emerging scholarship is critical given the increasing use of special measures and videoconferencing technologies, especially since the 2020 Covid-19 pandemic which often forced oral testimony and submissions into the online realm.37 As a consequence, evaluations of such testimonial evidence and submissions have frequently become an experience mediated by screens and technologies.
1. Witnesses, complainants and victims
There is significant scholarship concerning the emotional presentation and experiences of witnesses, complainants and victims in criminal procedure, and increasing scholarship regarding their use of remote witness suites and pre-recorded evidence. While witness testimony was once always delivered within the context of a live, synchronous and physical courtroom, in which witness demeanour was central in evaluations – or ‘sense impressions’ – of credibility,38 many jurisdictions are shifting to greater digitalisation and modes that support vulnerable witnesses to give their best evidence.
Bandes and Feigenson examine the traditional paradigm of live witness testimony and its connection with demeanour, character and veracity assessments. Observations of nonverbal gestures, emotional behaviours and facial expressions have been considered critical in evaluating demeanour and, from the accused’s perspective, the physical presence of any witness has been foundational in fair process including the principle of confrontation, that is, the ability for an accused to eyeball their accuser.39 But can we ever actually stare deep into the souls of witnesses and ‘divine their inner lives’ to be assured of their accuracy and truthfulness?40 The answer is, likely, no, and evaluations of witness testimony are bound up with moral judgments, subjective bias and comparisons with other witnesses’ narratives.41
During such evaluations, witness emotional expression is a double-edged sword in criminal procedure: Reeves et al. write that if victim-survivors, especially women, display ‘too much’ emotion, they undermine their believability.42 They cite Moore and Hoffeler who argue that female victim-survivors ‘must embody the drop-down menu of ‘officially approved emotions’ to secure a successful prosecution. She must be compliant, submissive, consistent, sombre, sad and respectful’,43 such constrained emotional states seemingly supporting a positive evaluation of the witness’ credibility.
The value of live, oral evidence and demeanour evaluation is often outweighed by other factors, particularly the need to protect vulnerable witnesses such as children who can find giving evidence in court traumatising. 44 On this point and as mentioned earlier, our overarching project focuses on vulnerable individuals in criminal justice, whether vulnerable witnesses, complainants, victims or defendants. Vulnerability is a much contested term in criminal justice and there is considerable relevant literature.45 In our other research outputs, we analyse vulnerability theories and the emergent concept of digital vulnerability in depth.46 For the purposes of this article, it is sufficient to understand that vulnerable individuals include children, people with mental health and cognitive impairments and those who have experienced extreme social disadvantage as well as multiple and intersecting needs, amongst many others. Vulnerable persons are generally those who require additional support and special shielding measures to ensure they can effectively access, participate and comprehend legal process.47
The intensity of the emotional space of the courtroom is borne out by the rapid uptake in special measures, alternative means and courtroom arrangements for vulnerable witnesses (including complainants and victims) to give evidence via remote witness facilities, closed circuit television (CCTV) and pre-recorded out-of-court statements.48 Alternative measures include the presence of witness support officers and intermediaries.49 Physical courtrooms can be emotionally unsafe spaces for vulnerable witnesses due to the potential for stressful confrontation and intimidation with the accused.50 The need for emotionally safe spaces is linked with the goal of enabling vulnerable witnesses to give their best evidence, free from intimidation and trauma.51
On the other hand, vulnerable witnesses may actively seek the opportunity to physically manifest and voice their victimisation or hurt. Reeves et al. argue that there is a balancing act for victim-survivors. For some, the protection and invisibility provided by remote hearings can enable them to ‘show’ victimisation with composure in a way that simply would not be possible within the ‘highly traumatic’ courtroom. Other victim-survivors dislike being ‘invisibilised’ by remote hearings and prefer to be able to ‘show’ their victimisation and express their emotion and truth directly in-person.52
Regardless of witness preference, research demonstrates that the presentation mode – live versus videotape or videoconferencing – does make a difference. Landström, Ask and Sommar examine the emotional victim effect (EVE), that is, how the emotional display of the victim/complainant can impact their perceived credibility. Their findings suggest that the live in-person presentation mode results in higher credibility than via videotape or videoconference.53 So too, Given-Wilson and Memon suggest that the most credible mode is in-person, followed by live-remote CCTV or videoconferencing. Finally, pre-recorded video lacks immediacy and proximity resulting in it being the least convincing with the least emotional impact.54 With the ever-increasing use of remote modes and pre-recorded evidence, especially for children and other vulnerable witnesses, these findings are concerning.
2. Accused people and offenders
The expression of offenders’ contrition and ‘[p]erceptions of their remorse play a powerful role in criminal cases’,55 particularly at sentencing following a guilty plea or conviction, where the presence of remorse may mitigate punishment. According to Weisman, the genuine expression of remorse is significant in differentiating between the remorseful subject, who remains loyal to society and common morality, versus the remorseless, transgressive subject who is unworthy of rejoining society.56 Bandes argues that remorse is considered an indicator of moral character and its expression demonstrates the desire to avoid future transgression.57 The concept of remorse has common law and statutory foundations and the remorseful subject links with the purposes of sentencing that include deterrence, rehabilitation, accountability, denouncement and recognition of the harm caused to the victim and community.58 For these reasons, remorse is considered relevant to risks of recidivism, dangerousness and moral culpability and, therefore, sentencing.59 In innovative restorative justice settings, remorse is significant and it is appropriate for offenders to physically attend in-person and be face-to-face with victims.60
However, judicial evaluations of remorse can be subjective, inconsistent and arbitrary.61 While the court takes remorse into account at sentencing,62 how do judicial officers actually evaluate it?63 Rossmanith, Tudor and Proeve argue that remorse is central to the moral drama of criminal procedure and narratives of possible redemption, yet it is vague and ephemeral.64 Their study examines how some judges seek evidence of apologies and expressions of regret and shame. In addition, they consider how remorse is connected with the offender’s presence in the courtroom, their demeanour, verbal and nonverbal cues, expressions and utterances. Some of their findings seemingly challenge ‘the traditional model of the unemotional, disengaged judge’.65
In what way are these experiences and expressions of remorse transformed when offenders appear remotely from prison and distanced from the sentencing court? Despite the fact that sentencing has long been considered a core criminal process,66 sentencing by videolink has become the default position in many jurisdictions.67 Rowden et al. examine the impacts of videolink sentencing which include the potential to dehumanise remote offenders, mediate communication between judicial officer and the offender, affecting the offender’s comprehension, and diminish the symbolic and public process of punishment.68 There are suggestions that sentencing via videolink lacks a sense of reality, gravitas and authenticity for offenders and, as such, is not appropriate when sentencing for serious offences.69 As discussed in the previous section, the remote mode also impacts demeanour assessments that are implicit in evaluations of the offender’s remorse.70
Further, since the Covid pandemic, scholars have questioned if virtual procedures impact how individuals, including offenders, may elicit empathy. Bandes and Feigenson suggest that the remote mode may well alter decision-makers’ capacities for empathy, especially towards those with ‘empathy deficits’, due to the fact that emotional expression and empathy are social constructs stemming from the co-present physical world.71 Remote assessments of defendants and offenders are impacted by videolinks such that they may be viewed as ‘less credible or more dangerous’ and the remote mode might colour the perceived emotional depth of these individuals.72
Finally, there is literature regarding the impact on the lawyer-client relationship in the digital realm.73 According to Flower, in the co-present courtroom, the lawyer and client are an indivisible unit.74 Peristeridou and de Vocht discuss how the critical significance of physical proximity between lawyers and their clients has come to the fore since the introduction of videolinks. Physically proximate lawyers can more readily provide psychological and emotional support to defendants before, during and after legal hearings.75 In addition, a successful lawyer-client relationship is not only founded on the lawyer’s legal expertise but also on their emotional assistance, that is, how ‘friendly and caring’ they are towards the client.76 However, remote criminal justice has increasingly fractured confidential lawyer-client communication, impeded pre- and post-court legal conferencing or consultation and diminished the ‘emotional connectivity’ with clients.77
In the following section, we present our interview data concerning the impact of the remote mode on expressions of emotion and empathy according to our participants.
Emotion, Empathy and the Law: Interview Themes
Our data from 85 semi-structured interviews confirm the importance of emotions and empathetic connections in criminal proceedings from the perspective of judicial officers, lawyers and associated criminal justice professionals. While the following data reveal mixed findings, there is considerable support for the notion that remote modes can diminish the potency of witness testimony, expressions of remorse, and eliciting of empathy. As defence lawyer, DL26, suggests, where a witness ‘is removed from a court … it does blunt the emotional impact.’ However, we argue that the potential blunting of emotion and empathy must also be weighed against other considerations including the critical need for vulnerable witnesses to be in emotionally safe spaces to provide their best evidence.
1. Vulnerable witnesses, complainants and victims
Several interviewees spoke of the many emotional benefits for vulnerable witnesses being able to give their evidence in the form of pre-recorded interviews or from a remote witness suite, thus avoiding direct confrontation with the accused and minimising the trauma of adversarial proceedings. A witness intermediary, Wi3, argued that the remote mode can, overwhelmingly, reduce distress and further trauma by removing vulnerable witnesses from ‘a complex, hierarchical traditional environment’ that is the adversarial courtroom. During out-of-court interviews or in remote witness suites, vulnerable witnesses may have the support of a range of professionals including witness assistance officers, intermediaries, victim support services, court companion (WAS4) and, sometimes, a therapy dog (CCJ1). Prosecutor P8 felt that remote witness suites provide a calming environment. Many prosecutors and witness support officers reinforced that remote modes foster emotional safety as well as enable the direct communication of emotionality to decision-makers. For instance, one prosecutor, P9, said that ‘the level of emotion that [remote vulnerable witnesses are] displaying or feeling still seems to be translated very well across the screen.’ P9 said that the remote witness ‘can still give their emotional account, and articulate or express their emotional state to the jury and judicial officer’ such that the ‘emotional charge’ of that remote testimony is broadcast and felt throughout the courtroom. Witness assistance officer, WAS3, strongly supported videolinks because vulnerable witnesses: ‘need a sense of not only physical safety, but emotional safety … we’re talking about people who have experienced sexual abuse, domestic violence, or witnessed … murder … [we’re] working with people who are highly traumatized, have mental health issues, disabilities, lots of vulnerabilities.’ Defence lawyers also understood how ‘the process can be quite damaging’ to vulnerable complainants (DL1) and a Supreme Court Judge (SCJ1) said that it is intolerable for a vulnerable witness to be in the same room as the accused. For instance, P7 had experienced ‘so many witnesses who just will not speak if they’re in the same room’ as the accused. By keeping the vulnerable witness physically and emotionally separate from the accused and possible intimidation, they are more able to give their very best evidence (WAS3). On this point, P2 spoke of a vulnerable complainant giving evidence remotely from a police station in her home community and how she gave ‘brilliant’, ‘very powerful’ evidence and the remote court could ‘see all of her facial expressions.’ P2 speculated that ‘had we forced her to come to Alice Springs, we wouldn’t have got the same quality of evidence.’ On balance, SCJ2 stated that the remote mode is critical in facilitating ‘a vulnerable witness like a child, being able to speak about things that they would really struggle with if they were sitting in the courtroom.’
However, P10 suggested that whether best evidence is provided by the remote mode is an issue on which ‘reasonable minds differ’. Despite the many benefits, several judicial officers and defence lawyers voiced concerns regarding the perceived blunting of the emotionality of remote vulnerable witness testimony. SCJ3 challenged the assumption that vulnerable witnesses, particularly children, must appear remotely or by way of pre-recorded interview. This practice means that they are ‘at distance, you can’t see their face … sometimes you can see that they’re emotional, but … you will completely lose attachment.’ Similarly, District Court Judge, DCJ1, felt that: ‘it’s actually much harder for a jury to empathise with a witness if their evidence is presented on a video screen’, that is, there is a risk that a jury will ‘disconnect from the evidence they’re hearing if the person is not physically present before them.’ Therefore, any ‘advantages to the vulnerable witnesses in being physically remote in a separate room appearing on the screen, are to some extent offset by some disadvantages’ (DCJ1). Judges speculated regarding the impact on juries when vulnerable witness testimony is remote or pre-recorded. For instance, SCJ4 queried: ‘I’m never sure when the evidence is replayed to a jury… and I often wonder whether… it’s like seeing somebody on TV, whether it actually does have the same impact on … a group of human beings being the jury … Some of the impact is lost through it being two-dimensional.’ While our study has not involved jurors, such comments, at least, reflect judicial perceptions of the mediated remote mode.
Tactically, SCJ1 queried why a prosecutor would ever want a key witness to give evidence by videolink: ‘I’d rather the jury see the whites of their eyes … I want the mother of the deceased here and let’s hope she cries… that’s persuasion.’ P8 said that it is preferable for juries and judges to directly perceive a vulnerable witness crying, ‘to see the emotion.’ Some defence lawyers stated that they would not object to a vulnerable witness for the prosecution appearing remotely due to the perceived forensic disadvantage to the prosecution case. DL24 said that ‘one of the risks of putting [key witnesses] on TV is that it almost certainly takes the emotion out of it … tactically … if I were prosecuting, I would unquestionably bring people into court wherever I could.’ That is because the remote ‘evidence can come across, even about very horrific things, a little bit emotionally flat’ and ‘something is lost in terms of the translation of emotion’ (DL33). Similarly, DL26 suggested that remote witness testimony can ‘feel a little bit sterile’ while DL1 spoke of a successful defence case where ‘it didn’t help this particular complainant being online. I think she felt a bit frozen.’ On the other hand, and as the literature review suggests, overly emotional witnesses can be problematic. DL25 said that the prosecution may not appreciate obviously distressed, disruptive complainants.
The mediation of emotion and impact on rapport building during remote conferences with vulnerable witnesses, complainants and victims was raised by prosecutors. P3 said that, regarding vulnerable witnesses, it is ‘really helpful to sit in close proximity to an Indigenous woman, have a chat, try and build that rapport.’ P2 spoke about how during a remote conference with a ‘deeply distressed’ victim, there were ‘lots of silences but there came a point at which I realised she was actually crying and I hadn’t been able to gauge that. So that was a failure.’ These experiences speak to the significance of physical and emotional proximity in building trust with a key witness.
Finally, the emotional weight of Victim Impact Statements may be diluted by remote modes according to DL4. He compared videolinks with an in-person sentencing hearing in which the prosecutor read out the statement in a co-present courtroom: the statement was ‘like a curse’ on DL4’s client and ‘an extraordinarily powerful and blood-curdling document … when it was read out, the atmosphere was completely electric.’ DL4 argued that a virtual court could not have facilitated such a compelling and emotional moment.
These interview data reveal the mixed impacts of remote communication technologies on vulnerable witnesses. On one hand, in order for vulnerable witnesses to readily provide their best quality evidence, there is clear consensus that they need to be in an emotionally safe environment to minimise undue stress and re-victimisation.78 On the other hand, there are many concerns from judicial officers and lawyers that the remote mode drains the emotionality of that evidence and, therefore, its potency.
2. Accused people and offenders
The interview data reveal insights into how the remote mode transforms accused people’s and offenders’ emotional expression and elicitation of empathy. Only one interview participant, DL13, directly spoke of remorse. This defence lawyer stated that when clients are in court in-person, they are more involved, ‘a lot more emotional’ and express ‘more raw emotions’ than by videolink. In-person they can ‘demonstrate their remorse by way of tears.’ While this was the only interview that specifically mentioned remorse, many interviewees spoke of other affective dimensions of the remote mode for accused people and offenders in terms of legal conferencing and court appearance. The observations focus on how remote incarcerated people become ‘just someone on a screen’ (DL13) seemingly devoid of humanity and unworthy of empathy.
We start with examining the impacts of remote criminal justice on lawyering and legal conferencing with the critical need to establish rapport and trust when discussing serious, sensitive and confidential issues. Rapport building via remote technologies is particularly difficult for remote child clients because ‘you’re just a character on TV to them’ (DL14). The data indicate a connection between rapport and empathy. Defence lawyer, DL24, spoke of some lawyers ‘who aren’t blessed with a great deal of empathy to start with’ and how they ‘may struggle to actually connect with their clients’ via remote modes. DL24 voiced a preference for in-person legal conferencing, particularly for Indigenous clients because ‘it’s very difficult to connect with those people sometimes, except in-person … I actually find the personal connection to be a much more potent and effective way of getting someone to get on a level with me.’ Additionally, he found that it’s difficult to express empathy to a remote client ‘when you’re a person on the other side of the screen.’ DL24’s preference is to sit down with a client and say: ‘I’m here to help you’, which is a different form of engagement and lawyering than by videolink. P2 had previously been a defence lawyer and spoke about the beneficial ‘energetic swap that occurs if you’re face-to-face with somebody.’ DL8 also preferred the in-person mode when giving clients bad news as it is ‘safer emotionally’ compared with remote modes when clients’ emotions might ‘escalate’ quickly. While remote legal conferencing during the pandemic was functional, DL23 spoke of working with a vulnerable client:
‘it was only after meeting him in-person that the true nature of his mental health issues came [forward]. He shared that with me for the first time … why the offense was committed, and the self-harm that he was doing at that particular point, and that was just that purely human-on-human interaction, you know, showing empathy, showing that trust, and that creating that space for someone to open up in that very vulnerable way.’
This experience alerts us to the possibility that important information regarding alleged offending and mitigating factors may be lost during remote legal conferencing.
The accused as an emotional human subject during criminal proceedings was raised in several contexts during the interviews. ‘Criminal trials are all about people and emotions’ according to Supreme Court Judge, SCJ3, who said: ‘When we’re arraigning a defendant in a prison cell remotely, I don’t think their plea carries the emotion that it should. Now, maybe that’s romanticising the effects of a courtroom, but we’re talking about public justice.’ SCJ3 argued that engagement between the court and incarcerated defendants is diminished by remote modes and that:
‘from an emotional point of view, it is hard to make a connection to someone via videolink because … in my courtroom the defendant is on a video screen that’s … three, four metres away from me, my eyesight’s poor anyway, so I’m looking at a blurry man doing my best to engage, but it’s unlikely to be fruitful because of the technology.’
DL33’s comments accord with this perspective: ‘there is … a lack of human connection between the sentencing judge and the person to be sentenced when it’s done over a TV screen … something … [is] lacking … the human, inherently human act of sentencing someone for a crime … it’s a very human exercise.’ DL1 saw remote modes as diminishing the ‘visceral connection’, perhaps making the possibilities of eliciting empathy difficult.
Nevertheless, DL24 said ‘you really need to impress upon the decision-maker that you’ve got a human being that needs to be dealt with. I think that one of the risks of putting everybody on TV is that it almost certainly takes the emotion out of it.’ The technology can dampen clients’ emotional expression according to DL17: ‘I don’t see a lot of people on the videolink express great emotion or if they do, I wonder whether the judge notices it because [the clients] usually do it quite discreetly – I mean, they’re in gaol.’ The suggestion here is that people-in-prison do not wish their emotional state to be overt and then overheard, from poorly soundproofed video rooms, by prison officers and other inmates in case that renders them vulnerable in the prison environment. They are, perhaps, less concerned with eliciting empathy or expressing remorse and more concerned with managing their immediate carceral situation.
Apparently, there are times when the emotions of people are definitely not dampened by remote technologies and courts resort to muting disruptive offenders. DL25 said that ‘for people who are exceptionally distraught, if they are interrupting, proceeding through their crying or their inability to control their emotions, we just mute them, and I’ve seen a number of … women and children being sentenced where [the court] will mute them so that [the lawyers] can just soldier on with the submissions uninterrupted.’ This quote suggests, firstly, that some remote people are very capable of expressing their emotionality in court and, secondly, that the courts have muting mechanisms to silence those expressions and any empathetic response.
In summary, while the data contain only one reference to remorse, the data nevertheless reveal insights into some of the intangible but foundational elements of building successful lawyer-client relationships, including the role of emotion and how remote legal conferencing transforms lawyers’ empathetic engagement. In addition, the data show how videolinks can diminish – or even completely mute – emotional expression of people-in-prison, a process leaving them as emotionless and dehumanised subjects.
Discussion and Conclusion
We commenced with a recognition that the administration of criminal justice is alleged to take place within neutral, impartial and regulated courtrooms and according to rational legal reasoning. At the same time, we have seen that criminal procedure is framed by the disorder of intense human emotion and drama.79 For instance, P2 acknowledged that the fundamentals of the criminal justice system centre on ‘humankind in the same room together – feeling – there’s a lot of emotion involved in it as well as intellect.’ Through literature review and analysis of our original dataset, we have sought to understand how these oppositional forces of emotion and legal intellect have been transformed by the increasing use of remote communication technologies such as videolinks. With a focus on the impacts of remote criminal justice on emotional expressions and empathetic engagement, we have queried if, in replacing physical proximity with videoconferencing technologies, these affective dimensions have been lost or changed.
Our findings diverge and split between a consideration of vulnerable witnesses versus people-in-prison. For vulnerable witnesses, both the extant scholarship as well as our interview data support the concept that, during criminal trials, they require physically and emotionally safe spaces to avoid undue stress, re-traumatisation and intimidation. Current best practice indicates that vulnerable witnesses are most likely to be able to front court, give their evidence-in-chief and be cross-examined if they are shielded from both the accused person and confronting courtroom environment. This understanding has led to the increasing use of remote modes for vulnerable witness testimony, by way of pre-recorded interviews and from separate witness rooms, meaning that vulnerable witness testimony is often presented through screens and technologies. Such technological modes mediate demeanour and credibility assessments that implicitly involve emotional and empathetic evaluations by the decision-makers. Magistrate M3 said that remote witness testimony can be very one-dimensional and subtle aspects of testimony might be lost. DCJ1 felt that remote modes can create a barrier to perceiving the evidence whereas in court, witness demeanour is ‘more obvious’. That said, there is some scepticism regarding the realistic importance of demeanour assessments. For instance, SCJ2 said:
‘we have all learnt … the scientific answer … and we shouldn’t be assessing the credibility of a witness based on their demeanour really. That’s not a good sign. You’re not actually going to be able to tell if someone’s telling the truth or not by looking at how they give their evidence as opposed to what they say, how that fits with other objective pieces of the puzzle.’
With remote modes and special measures, it does appear from our data that many vulnerable witnesses are enabled to provide compelling evidence and successfully communicate their emotional, physical and psychological experiences and harms to the court. As SCJ2 stated, remote vulnerable witnesses can ‘speak about things that they would really struggle with’ if they were in the physical courtroom.
However, other scholarship and data reveal the balancing act between the emotional safety of remote vulnerable witnesses versus the potential blunting of their emotional expression. Various studies have demonstrated that the presentation mode – live versus pre-recorded video or videoconferencing – does make a difference and the most credible mode is said to be delivered by the immediacy and proximity of in-person testimony.80 So while the remote mode and special measures may protect a vulnerable witness from the emotional intensity of the courtroom, the technology might simultaneously act as a barrier to empathy and ultimately disadvantage the prosecution case. The remote mode can lead to even horrific evidence being ‘emotionally flat’ (DL33) or ‘sterile’ (DL1). Lawyers and judges identified potential forensic disadvantages to putting key witnesses ‘on TV’ (SCJ4). As to whether this directly impacts legal outcomes, such as reduced conviction rates, is outside the scope of this study but most worthy of future research. These findings, nevertheless, do challenge the assumption that remote witnesses, especially children, should automatically give their evidence remotely.
Prosecutors also discussed the challenges in establishing a working relationship with vulnerable witnesses, complainants and victims by videoconferencing. P2 and P3 preferred physical and emotional proximity during interviews with key witnesses as a means to establish rapport and trust. The use of videolinks for victim conferencing provides clear benefits in terms of access to people in very remote locations, but the technologies also demand a new professional skillset for ensuring successful rapport building.81 While video interviews can provide a suitable alternative to face-to-face conferencing,82 there are suggestions that the efficacy of the remote mode requires further research.83
In relation to accused people and offenders who appear remotely from a custodial situation, the scholarship emphasised the significance of expressions of remorse at sentencing and how that has been transformed by videoconferencing. For instance, there have been concerns that remote people-in-prison are dehumanised and rendered hollow, screen-based, distant subjects, unworthy of empathy.84 Only one defence lawyer, DL13, spoke of expressions of remorse and how clients are more able to express remorse and raw emotion when physically in a courtroom. But there are other emotional and affective dimensions at play for people-in-prison. In particular, our data reveal some of the emotional and empathetic fundamentals of rapport building during lawyer-client consultations and how these are best experienced in a shared space with physical proximity. Legal conferencing by videolink does not necessarily provide the ‘emotional connectivity’ required for comprehensive lawyer-client communication.85 The literature and data demonstrate the difficulties of full and frank disclosure during remote confidential lawyer-client consultations and how critical factual and mitigating circumstances, such as an accused’s vulnerabilities, might not be disclosed. Moreover, DL24 felt their expression of empathy towards their client was stymied by videolinks, potentially impacting the efficacy of the communication and rapport building.
Arising from our data, we have also seen that remote proceedings can lose the ‘immediacy and humanity’ that is ‘very much intangible in trials’ (DL24) and how a defence lawyer must work hard to impress on the decision-maker that even a remote defendant or offender is an emotional and human subject. It is a challenge for people-in-prison to present themselves in that manner, given that any emotional expression might be easily overheard, rendering them vulnerable within their custodial situation.
Finally, we were surprised by the lengths to which interview participants engaged with emotionality given there were no direct questions during interviews. The issue arose unexpectedly and organically through the semi-structured interview process, demonstrating a strength of qualitative research methods in potentially revealing unforeseen matters. Judicial officers, particularly, addressed the emotional and affective dimensions of remote hearings to challenge traditional assumptions of ‘the unemotional, disengaged judge’.86 We were also surprised by the responses concerning the emotional aspects of establishing rapport with key witnesses and clients that show that the impacts of digitalisation of criminal procedure have ripple effects beyond courtrooms. Ultimately, we find that, while there remain compelling reasons to use remote modes, especially for vulnerable witnesses, there is evidence that videolinks can deplete the emotionality of testimony and, therefore, its potency, and, furthermore, during remote hearings and legal interviews, technologies have the potential to diminish empathetic engagement.
Notes
[1] Susan A Bandes, ‘Remorse and Criminal Justice’ (2016) 8(1) Emotion Review 14; Richard Weisman, ‘Detecting Remorse and Its Absence in the Criminal Justice System’ (1999) 19 Studies in Law, Politics, and Society 121; Lisa Flower, ‘Doing Loyalty: Defense Lawyers’ Subtle Dramas in the Courtroom’ (2018) 47(2) Journal of Contemporary Ethnography 226.
[2] Susan A Bandes, ‘Remorse, Demeanor, and the Consequences of Misinterpretation: The Limits of Law as a Window into the Soul’ (2014) 3 Journal of Law, Religion and State 170; Michael Proeve, and Steven Tudor, Remorse: Psychological and Jurisprudential Perspectives (Taylor & Francis, 2010) 30.
[3] Paul Roberts and Adrian Zuckerman, Roberts & Zuckerman’s Criminal Evidence (3rd edn, Oxford, 2022); Pat Carlen, ‘The Staging of Magistrates Justice’ (1976) 16(1) The British Journal of Criminology 48. http://www.jstor.org/stable/23636252; Linda Mulcahy and Emma Rowden, The Democratic Courthouse A Modern History of Design, Due Process and Dignity (Routledge 2019); Kathryn Leader, ‘Closed-circuit television testimony: Liveness and truth-telling’ (2010) 14(1) Law Text Culture 312.
[4] Leif Dahlberg, ‘Emotional Tropes in the Courtroom: On Representation of Affect and Emotion in Legal Court Proceedings’ (2009) 3(2) Law and Humanities 175; Lisa Flower, ‘Rumbling Stomachs and Silent Crying: Mapping and Reflecting Emotions in the Sensory Landscape of the Courthouse’ in Herrity, K., Schmidt, B. E. & Warr, J. (eds). Sensory Penalities: Exploring the Senses in Spaces of Punishment and Social Control. (Bingley: Emerald 2021) (pp. 159–174).
[5] For example, Crimes (Sentencing Procedure) Act 1999 (NSW) s 28.
[6] Susan A Bandes and Jessica M Salerno, ‘Emotion, proof and prejudice: The cognitive science of gruesome photos and victim impact statements’ (2014) 46 Arizona State Law Journal 1003.
[7] For example, Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)(a).
[8] For example, Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(3)(i).
[9] 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(2) Maastricht Journal of European and Comparative Law 97; Dorris de Vocht, ‘Trials by video link after the pandemic: the pros and cons of the expansion of virtual justice’ (2022) 8(1–2) China-EU Law Journal 33; Meredith Rossner and David Tait, ‘Presence and participation in a virtual court’ (2023) 23(1) Criminology & Criminal Justice 135.
[10] Shari Seidman Diamond and others, ‘Efficiency and cost: The impact of videoconferenced hearings on bail decisions’ (2010) 100 Journal of Criminal Law and Criminology 869; Cheryl Marie Webster, ‘Out of sight, out of mind: A case study of bail efficiency in an Ontario video remand court’ (2009) 21(1) Current Issues in Criminal Justice 103; Nigel Fielding and others (2020). Video enabled justice evaluation. Sussex Police and Crime Commissioner and University of Surrey, available from: http://spccweb.thco.co.uk/media/4851/vej-final-report-ver-11b.pdf.; Min-Taec Kim, ‘Estimating the impact of audio-visual link on being granted bail’ [2021] Crime and Justice Bulletin 235; Edie Fortuna Cimino, Zina Makar and Natalie Novak ‘Charm city televised & dehumanized: How CCTV bail reviews violate due process’ (2014) University of Baltimore Law Forum 45, 57; Bail Observation Project (2019) Systematic failure: Immigration bail hearings 2019. Available at: https://bailobs.org/resources/further-reports/.
[11] Emma Rowden, Anne Wallace and Jane Goodman-Delahunty, ‘Sentencing by videolink: Up in the air’ (2010) 34(6) Criminal Law Journal 363.
[12] David Peplow and Jake Phillips, ‘Remote parole oral hearings: More efficient, but at what cost?’ (2023) Criminology & Criminal Justice, 17488958231163278; Christian Licoppe ‘Video communication and ‘camera actions’: The production of wide video shots in courtrooms with remote defendants’ (2015) 76 Journal of Pragmatics117; Kacey Marr, ‘The right to Skype: The due process concerns of videoconferencing at parole revocation hearings’ (2012) 81(4) University of Cincinnati Law Review 1515; Anne Bowen Poulin, ‘Criminal justice and videoconferencing technology: The remote defendant’ (2004) 78 Tulane Law Review1089.
[13] Jenia I Turner, ‘Remote Criminal Justice’ (2021) 53 Texas Tech Law Review 198; Carolyn McKay and Kristin Macintosh, ‘Accessing Digitalised Criminal Justice from Prison: Communication, Effective Participation and Digital Vulnerability’ (2023) Newcastle Law Review https://www.thenewcastlelawreview.com/post/accessing-digitalised-criminal-justice-from-prison.
[14] Monica K Miller and others, ‘How emotion affects the trial process’ (2008) 92 Judicature 56.
[15] Martin L Hoffman, ‘Empathy, justice, and the law’ in Amy Coplan & Peter Goldie (eds) Empathy: Philosophical and psychological perspectives (Oxford University Press 2011) 230–254.
[16] Jane L Wood, Mark James, and Caoilte Ciardha, ‘‘I know how they must feel’: Empathy and judging defendants’ (2014) 6(1) The European Journal of Psychology Applied to Legal Context 37; Apple Dictionary v2.3.0; 20.
[17] Joel Smith, ‘What is empathy for?’ (2017) 194(3) Synthese 709, 710.
[18] Nina Törnqvist, and Åsa Wettergren, ‘Epistemic emotions in prosecutorial decision making’ (2023) Journal of Law and Society. https://onlinelibrary.wiley.com/doi/abs/10.1111/jols.12421; Sarah Jane Summers, ‘The Epistemic Ambitions of the Criminal Trial: Truth, Proof, and Rights’ (2023) 4 Quaestio facti. Revista internacional sobre razonamiento probatorio.
[19] Carolyn McKay, The Pixelated Prisoner: Prison video links, court ‘appearance’ and the justice matrix. (Routledge 2018).
[20] Rusell Smith, Rebecca Savage, and Catherine Emami, Benchmarking the use of audiovisual link technologies in Australian criminal courts before the pandemic (Research Report no.23 Australian Institute of Criminology 2021); Louise Ellison and Vanessa E Munro, ‘A ‘special’ delivery? Exploring the impact of screens, live-links and videorecorded evidence on mock juror deliberation in rape trials’ (2014) 23(1) Social and Legal Studies 3.
[22] Ronet Bachman, Russell K Schutt, The practice of research in criminology and criminal justice (Pine Forge, Thousand Oaks, CA 2001); Shadd Maruna, ‘Mixed method research in criminology: Why not go both ways?’ in Alex R Piquero, and David Weisburd, (Eds), Handbook of Quantitative Criminology (Springer 2010) 123–140.
[23] Sharyn Roach Anleu and Kathy Mack, Emotion and Judging: A Socio-Legal Analysis (Routledge, 2021).
[25] Sharyn Roach Anleu, and Kathy Mack ‘Impartiality and Emotion in Judicial Work’ (2017) 29(3) Judicial Officers’ Bulletin 21. Reproduced in Judicial Commission of New South Wales (ed) (2021) Handbook for Judicial Officers, Sydney: Judicial Commission of New South Wales: 37–43. Available online: https://www.judcom.nsw.gov.au/publications/benchbks/judicial_officers/impartiality_and_emotion_in_judicial_work.html. n.p.; see also Susan Bandes, ‘Empathetic judging and the rule of law’ (2009) Cardozo Law Review De Novo 133; Susan A Bandes and Jeremy A Blumenthal, ‘Emotion and the law’ (2012) 8 Annual Review of Law and Social Science 161.
[26] Susanne Karstedt, ‘Emotions and criminal justice’ (2002) 6(3) Theoretical Criminology 299, 301; see also Arie Freiberg and WG Carson ‘The Limits to Evidence-Based Policy: Evidence, Emotion and Criminal Justice’ (2010) 69(2) Australian Journal of Public Administration 152.
[28] Angela P Harris, and Marjorie M Shultz, ‘A(nother) Critique of Pure Reason: Toward Civic Virtue in Legal Education’ (1993) 45(6) Stanford Law Review 1773, 1778 cited in Freiberg and Carson (n 26) 157.
[29] The Queen v R (1981) 28 SASR 321, 325 (King CJ); Terry A Maroney, ‘Law and Emotion: A Proposed Taxonomy of an Emerging Field.’ (2006) 30(2) Law and Human Behavior 119.
[30] R v Muy Ky Chhay (1994) 72 A Crim R 1, 9 (Gleeson CJ).
[31] Dan M Kahan and Martha C Nussbaum, ‘Two Conceptions of Emotion in Criminal Law (1996) 96(2) Columbia Law Review 269, 270, 272.
[34] Sandra Walklate, ‘Courting Compassion: Victims, Policy and the Question of Justice’ (2012) 51(2) Howard Journal of Criminal Justice 109, 109–110.
[36] Susan A Bandes, ‘Empathy and Article HII: Judge Weinstein, Cases and Controversies’ (2015) 64 DePaul Law Review 317, 325.
[37] Michael Legg, and Eryn Newman, Evaluating witnesses in an online court (2021) Law Society Journal. December. https://lsj.com.au/articles/evaluating-witnesses-in-an-online-court/; New South Wales Bar Association, Court Protocols: Protocol for Remote Hearings (2020) https://nswbar.asn.au/uploads/pdf-documents/remote_hearing_protocol.pdf.
[38] Henry S Sahm, ‘Demeanor Evidence: Elusive and Intangible Imponderables’ (1961) 47 American Bar Association Journal 580, 580 cited in Susan A Bandes and Neal Feigenson, ‘Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom’ (2020) 68(5) Buffalo Law Review 1275, 1281.
[42] Ellen Reeves, Mary Iliadis, and Naomi Pfitzner, ‘LGBTQ+ domestic and family violence victim-survivors’ experiences of remote court hearings during the COVID-19 pandemic: The gendered dimensions of safety, independence and visibility’ (2023) Criminology & Criminal Justice 0 10.1177/17488958231216561, 7.
[43] Dawn Moore and Stephanie Hoffeler ‘Forty-five colour photographs: Images, emotions and the victim of domestic violence’ in Michael Jacobsen and Sandra Walklate (eds) Emotions and Crime: Towards a Criminology of Emotions (Routledge 2019) 79–95, 85–86.
[44] Bandes and Feigenson (n 38) 1285; Sara Landström, Karl Ask, and Charlotte Sommar, ‘The emotional male victim: Effects of presentation mode on judged credibility’ (2015) 56 Scandinavian Journal of Psychology 99, 100.
[45] For example, Penny Cooper, and Heather Norton, (eds.) Vulnerable People and the Criminal Justice System. (Oxford: Oxford University Press 2017); Roxanna Dehaghani, Vulnerability in Police Custody: Police Decision-making and the Appropriate Adult Safeguard (Routledge 2019); Nicole L Asquith, and Isabelle Bartkowiak-Théron, Policing Practices and Vulnerable People (Palgrave Macmillan 2021).
[46] McKay and Macintosh (n 13); Carolyn McKay and Kristin Macintosh, ‘Digital Vulnerability: People-in-prison, videoconferencing and the digital criminal justice system’ (2024) Journal of Criminology 0(0) https://doi.org/10.1177/26338076231217794; Carolyn McKay, ‘Remote access technologies, clinical evaluations of people-in-prison and digital vulnerability’ (2022) 43(2) Recht der Werkelijkheid, (Journal of Empirical Research on Law in Action) 68. DOI: 10.5553/RdW/138064242022043002005.
[47] Laura Hoyano, ‘Reforming the adversarial trial for vulnerable witnesses and defendants’ (2015) 2 Criminal Law Review 107; Judicial Commission, Equality before the law bench book (2022) https://jirs.judcom.nsw.gov.au/public/assets/benchbooks/equality/.
[48] For example in our jurisdiction, the Criminal Procedure Act 1986 (NSW) contains various exceptions to oral evidence for certain vulnerable persons, e.g., ss 84, 86, 283C, 283D, 289V, 306M including specific provisions regarding child sexual offence evidence. See also Zoe Given-Wilson and Amina Memon, ‘Seeing is believing? A systematic review of credibility perceptions of live and remote video-mediated communication in legal settings’ (2022) 36 Applied Cognitive Psychology 1168; Anne Cossins, Closing the Justice Gap for Adult and Child Sexual Assault (Palgrave Macmillan, London 2020); Anita Mackay and Jacqueline Giuffrida, ‘Ensuring the Right to a Fair Criminal Trial Using Communication Assistance’ (2022) 10(1) Griffith Journal of Law and Human Dignity 1.
[49] Jessica Jacobson and Penny Cooper, Participation in Courts and Tribunals: Concepts, Realities and Aspirations (Bristol University Press, 1st ed, 2020) 9–12; Judicial Commission, Evidence given by alternative means. Criminal trial courts bench book (2023) https://www.judcom.nsw.gov.au/publications/benchbks/criminal/evidence_given_by_alternative_means.html; Anita Mackay, and Jacqueline Giuffrida, ‘Implications of the royal commission into institutional responses to child abuse for the protection of vulnerable witnesses: Royal commission procedures and introduction of intermediaries and ground rules hearings around Australia (2020) 29(3) Journal of Judicial Administration136; Anna Pivaty, ‘Kinderen en buitengerechtelijke afdoeningen in het strafrecht. Mogelijke gevolgen voor kwetsbaarheid [Children and out-of-court disposals in criminal law. Possible consequences for vulnerability].’ (2021) 43(10) Tijdschrift Voor Familie-en Jeugdrecht 244.
[50] Donna Roberts, Peter Chamberlain, and Paul Delfabbro, ‘Women’s experiences of the processes associated with the Family Court of Australia in the context of domestic violence: A thematic analysis’ (2014) 22(4) Psychiatry, Psychology and Law 1–17.
[51] Royal Commission into Institutionalised Responses to Child Sexual Abuse, (2017), Final Report, https://www.childabuseroyalcommission.gov.au/sites/default/files/final_report_-_preface_and_executive_summary.pdf; Judy Cashmore and Rita Shackel, ‘Research on sexual assault to inform courts and legal professionals’ (2022) 34(2) Judicial Officers’ Bulletin15; Bandes and Feigenson (n 38); Landström, Ask, and Sommar (n 44); See also Ellison and Munro (n20).
[58] Kate Rossmanith, Stephen Tudor and Michael Proeve, ‘Courtroom contrition: how do judges know?’ (2018) 27(3) Griffith Law Review 366, 371.
[60] ibid; R v Knight (No 1) [2023] NSWSC 195.
[62] For example, Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A.
[63] Bandes, (n 2) 187; Louise Victoria Johansen, ‘‘Impressed’ by Feelings-How Judges Perceive Defendants’ Emotional Expressions in Danish Courtrooms’ (2019) 28(2) Social & Legal Studies 250.
[64] Rossmanith, Tudor and Proeve (n 58); see also Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A.
[67] For example, sentencing in our jurisdiction is not longer considered a ‘physical appearance proceeding’: Evidence (Audio and Audio Visual Links Act) 1998 (NSW) ss 3, 5BA, 5BB.
[72] Turner (n 11), 218 citing Robin Davis and others, Research on Videoconferencing at Post-Arraignment Release Hearings: Phase IFinalReport, ICF INT’L 5 (May 29, 2015).
[73] Isabelle M Geczy, ‘Captive without Counsel: The Erosion of Attorney-Client Privilege for Incarcerated Individuals’ (2023) 70 UCLA Law Review 1084; Eric T Bellone, ‘Private attorney-client communications and the effect of videoconferencing in the courtroom (2013) 8(1) Journal of International Commercial Law and Technology 24.
[76] ibid, 102 citing Michelle Peterson-Badali, Stephanie Care and Julia Broeking, ‘Young People’s Perceptions and Experiences of the Lawyer-client Relationship’(2007) 49 Canadian Journal of Crime and Criminal Justice 375 and Cyrus Tata and others, ‘Does Mode of Delivery Make a Difference to Criminal Case Outcomes and Clients’ Satisfaction? The Public Defence Solicitor Experiment’ (2004) Criminal Law Review 120.
[81] Ray Bull, ‘The investigative interviewing of children and other vulnerable witnesses: Psychological research and working/professional practice’ in Investigating the Truth: Selected Works of Ray Bull (Routledge 2018) 126–144; Deirdre Brown, David Walker and Erin Godden, ‘Tele-forensic interviewing to elicit children’s evidence—Benefits, risks, and practical considerations’ (2021) 27(1) Psychology, Public Policy, and Law 17.
[82] Jason J. Dickinson, Nicole E. Lytle, and Debra A. Poole, ‘Tele-forensic interviewing can be a reasonable alternative to face-to-face interviewing of child witnesses’ (2021) 45(2) Law and human behavior 97.
[83] Kevin Smith, ‘The Benefits and Limitations of Using Remote Technology to Conduct Investigative Interviews’ (2021) 21(3) Criminal Justice Issues Journal of Criminal Justice and Security 53.
Acknowledgements
The authors also acknowledge the support of the University of Sydney Law School’s student internship program that funded the position of research assistant, Ms Jo-Ann Wang. This study was approved by the University of Sydney Human Research Ethics Committee Protocol 2022/142.
Funding Information
Dr Carolyn McKay is the recipient of an Australian Research Council Discovery Early Career Researcher Award: ‘The Digital Criminal Justice Project: Vulnerability and the Digital Subject’ (DE210100586), funded by the Australian Government.
Competing Interests
The authors have no competing interests to declare.