The pandemic came upon us pretty quickly, and many of our essential social institutions, including the legal system, had to change just as quickly. The situation called for action, without a lot of time for reflection. Now, as we are swiftly reopening, that dynamic has changed: There is less of a need for urgent action, and perhaps more time to reflect. A recent article entitled, “The courts, the remote hearing and the pandemic: From action to reflection” (Legg & Song, 2021) draws on previous literature and experience around the globe in order to focus on current need for reflection on the future role of the partially-remote or fully-remote courtroom.
The authors are from the University of New South Wales School of Law, and Australia seems to be one of the leaders in practice and research on online courtrooms. Perhaps this is because many Australian jurisdictions have always needed to deal with large geographic distances, and as a result, remote video has been common in Australian courtrooms for nearly two decades. Some courts there were able to continue at normal capacity through the pandemic. In this post, I will draw from that article to reflect on the state of our knowledge on what works and doesn’t work for the online courtroom, and share my own list of the research questions that remain to be answered.
The Liminal Current State
The article notes that courts changed out of necessity, in “the largest, unforeseen mass-pilot of remote hearings across the world.” Naturally, there was a mix in how it was done, as well as a mix in its reported success and the reception it received. The reality is that at this stage, we don’t quite know the effects of online courtroom processes. There has been a great deal of anecdotal information, both from those who are technology boosters and from those who would prefer to keep nearly all trial activities in a physical courtroom. Advocates in both directions have had to speculate based on their experience.
Noting “a significant empirical research gap on fully remote hearings,” the authors note that the actual research is either just now emerging, or it is drawn from analogous, but not-quite-parallel, experiences with closed-circuit or video-recorded testimony. Naturally, there is also a wide variation in the remote-courtroom models tested and the specific technology used.
The current situation is that we are moving back into courtrooms and deciding what pieces, if any, of the remote experience we will want to keep. This is essential both because the necessity may return, and because some adaptations might be useful in solving some of the other problems that have made trials in many countries difficult, costly, and relatively rare. In short, we have a unique historical need for a participant-informed research agenda.
The Loaded Research Agenda
There is no shortage of questions calling for a systematic answer. We need both field and experimental research, with representative and valid samples, adapted to the many differences across courts. The research should focus on the full range of adaptations, looking at the influences of remote communication on the full scope of participants. Better answers will help to inform our considerations of which cases and which aspects of cases ought to be remote, and which should not. Some questions to be addressed through research include the following:
On these topics, there are definitely opinions, and some are informed to some degree by the research. But comprehensive answers lie in the future, and the key is to know before deciding what we want to keep from the remote courtroom experience, and how we want to apply it. As the authors conclude:
As remote hearings evolve from an emergency measure to a matter of course, the lessons learnt from the decades of research into [remote video] combined with the experience from fully-remote hearings during the pandemic can provide a strong anchor for innovation to flourish without losing sight of the fundamental principles of our legal system.
Song, A., & Legg, M. (2021). The courts, the remote hearing and the pandemic: From action to reflection. University of New South Wales Law Journal, 44(1), 126-166.