Can virtual courts provide justice?

Brian J. Carney
BridgeTower Media Newswires

I once tried a case during which a paperclip fell from counsel table and landed on top of an upside-down electrical power outlet, creating a small spark near my feet that blew out the electricity in the courtroom.

When restarting his closing argument, defense counsel immediately took advantage of the moment by proudly claiming he knew his closing was going to be explosive. The trial lawyer never could have planned for that happenstance, nor estimated the true impact that his quick wittedness would have on the jury.

Years ago, I prosecuted a different case in which a juror fell asleep during trial. Concerned that a juror who did not hear the evidence would have a difficult time finding guilt beyond a reasonable doubt, and with no help from the court officer (who was probably also asleep), I requested a sidebar conference and asked the judge (who was a bit drowsy himself) to “wake up” the juror.

It was a garden-variety prosecution for unlawful distribution of cocaine. The theme of my closing argument, which I drew on the chalkboard for the jury, was: 1. Needs; 2. Access; and 3. Pattern (of behavior). I wrote each word directly below the other so that the word “NAP” was created by reading the capital letter of each word from top to bottom.

After the successful verdict, the court officer scolded me for my errant request to the judge to wake up the juror, claiming that it was improper etiquette to ask the judge to do the job of the court officer (not to mention embarrassing).

No matter whose job it was, making sure the juror was engaging in the process was absolutely necessary for justice to take place in my trial.

Trials are not simply an exercise in asking and answering questions; they involve real-time drama and intangible elements that most trial lawyers, judges and jurors take for granted.

Justice is about more than simply a fact-finder coming to a conclusion after listening to words spoken “on the record” by testifying witnesses from a witness stand. True justice requires a proper setting and live human interaction of all participants.

The necessity of live human interaction

Certain types of human engagements require actual physical presence and interaction. While virtual presentation technology is helpful to supplement and enhance our daily experiences, it can never replace certain aspects of our lives, particularly when they really matter.

The justice system really matters! Trials, especially important ones, must be done with everyone present, conscious and engaged.

Why is it important for a witness to be competent to testify? Because without that requirement, justice cannot be achieved. Why does the law preclude ex parte communications? To ensure fairness and, ultimately, justice. The same answer explains the constitutional requirement for face to face confrontation of witnesses.

Why is it important for jurors to remain awake and for jury trials to be conducted in a live setting? Because the emotional and subtle truth-finding elements of the process (which I believe are at the heart of justice in America’s judicial system) would otherwise be forever lost.

Have you ever noticed the huge difference between watching a movie by yourself and watching the same movie in a crowded movie theater? While you are consuming the exact same content, there is a live human interaction factor (i.e., a crowd factor) that decidedly changes the experience, not to mention the screen size. Another example is the incomparable experience of watching a baseball game on television versus sitting in the stands at Fenway Park.

Similarly, in a courtroom there is so much human activity and other intangibles — including the history, tradition and apparent gravitas of the setting — that change the experience for everyone.

There also are emotional moments that can only be experienced by being there in person.

This subtle distinction between live and virtual experiences in litigation has been around since the launch of Court TV in 1991. For anyone who has ever been present at a high-profile trial, the discrepancy between actually being present in the courtroom (e.g., Michael Skakel) versus watching the verdict on TV (e.g., O.J. Simpson) is substantively, and strikingly, unmistakable.

Countless nuanced communications and physical interactions are constantly happening in a jury trial at the exact same time, and most courtrooms are physically set up so that the jury has a front row seat to the theater of the trial. Great trial lawyers capitalize on their interpersonal skills to utilize, leverage and maximize these emotional opportunities for persuasion. The theater of the courtroom not only has actors with scripts, it has props, visual aids and unexpected human interactions and reactions.

Courtrooms involve truth, lies, pain, suffering, anger, forgiveness, hatred, justice and injustice. These characteristics of the live trial are witnessed not simply though the words elicited via testimony, but rather through the visual cues and subtle body language being constantly and simultaneously exchanged between each of the players.

The judge, the lawyers, the witnesses, the court officers and even fellow jurors’ reactions matter and influence outcomes. Indeed, the physical reaction of the public audience (like in a movie theater), while not technically evidence, certainly can impact juror perceptions of truth and falsity.

This human interaction aspect of jury trials is profound yet mostly goes unnoticed and unspoken. Exploitation (by lawyers) of the benefits of this communication channel is learned through experience and not taught in law school. The ability of a lawyer to exercise and harness this skill is one of the elements that distinguishes the successful lawyer from the run-of-the-mill.

While I am an avid proponent of technology in the courtroom (to enhance the communication experience and overall understanding of the dispute), I am not an advocate of technology being employed as the courtroom.

For some limited types of hearings, it makes sense not to bring everybody into the courtroom (scheduling, delay, costs, etc.), but for important hearings and trials at which substantive testimony and arguments will be conducted, I see serious problems with acting as if the same level of seriousness, persuasive communication and, ultimately, justice can be achieved, whether live or virtual.

In August, the Florida Bar News touted the first virtual jury trial in the Fourth Judicial Circuit as a technological success and “a milestone in moving forward.” But the article actually provides a blueprint for recognizing the flaws inherent in trying to force a uniquely human event into a virtual space.

Major concerns Issue

No. 1: It is not “a real trial.”

The Florida trial judge stated: “To me, it felt like a real trial and it looked like a real trial.” The problem, as explained above, is that a real trial includes intangible aspects of human behavior and interaction that is missing when it is converted to a multi-screen display of talking heads, held not in a historical building but rather in someone’s living room. In reality, it looked nothing like a real trial.

Multi-screen display is inherently different. Indeed, one of the attorneys said it was impossible to see the entire jury panel. If a lawyer cannot see the entire jury panel, it is not “like a real trial.”

Issue No. 2: Technology has limitations.

Remote jury service can exclude certain groups that do not have adequate internet service or that are not comfortable using the Zoom platform. In the Florida case, “[t]o handle prospective jurors who lacked technology, court officials set up remote computer terminals at local libraries.” The reality is that technology is not always available to everyone. It would be inherently unfair to allow lower quality technology to negatively impact the comprehension or effective communication of the details of a case by witnesses, lawyers, jurors or the judge.

Issue No. 3: The lawyer’s ability to do an effective job assessing how the evidence is impacting the jury can be harder, if not impossible.

“One prospective juror [in the Florida case] tested the bounds of court decorum,” the judge said, “when he reclined on a bed and, possibly because of the angle of his iPhone camera, appeared to be closing his eyes.” Napping in a juror seat is far different than napping in your bed at home.

Issue No. 4: With technology, oftentimes one side benefits.

The plaintiff’s attorney in the Florida case said the trial “was a triumph for his client, with the jury awarding her more than he requested in closing arguments.” I’m not sure if that is a fair statement given that only one side, the plaintiff, presented evidence. Opposing counsel was not even present for the trial. If parties agree to a virtual forum, it seems such a convenience might make sense in certain circumstances. However, my strong belief is that the virtual trial should not be considered as an option when either side objects.

Issue No. 5: Logistics and resources make virtual trials impractical as a replacement system.

It also takes more bodies and auditors to ensure that the technology is operating smoothly. A spokesman for Clerk of Court’s Office in the Florida case noted that “the extra work required would make frequent remote jury trials prohibitive.”

Will justice be done?

Virtual courts sound exciting, but in reality they are not capable of ensuring true justice.

It boils down to whether you believe, as I do, that the setting provides a level of gravitas that ensures everyone takes the process seriously and that human involvement is an essential aspect of our justice system.

I do not believe justice can be accomplished remotely; meaning, while the experience is “like a real trial,” it is not a real trial.

When justice truly matters, in-person human beings judging their peers and receiving the exact same information, at the exact same time, under the exact same conditions, in a controlled setting, in the same room, each possessing the ability to employ their God-given wisdom as a guide, are necessary yet subtle guarantors of justice.

Human beings have emotions, they show mercy, they understand that people make mistakes, and they fight for the underdog. These elements somehow get lost with the introduction of electronics in the communication of a virtual trial.

If these characteristics of live human interaction are necessary to proper and just outcomes, then virtual courtrooms ought to be limited to procedural issues and non-substantive or minor matters.

Criminal courtrooms and courthouses ensure a level of seriousness and a distraction-free forum that jurors sitting in bedrooms, kitchens and living rooms do not enjoy. I think it is time to return to the “old normal” and bring justice back to our justice system.

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Brian J. Carney, a former Boston prosecutor, is president of WIN Interactive, a Massachusetts-based litigation consulting and multimedia technology firm. He has lectured on technology and the admissibility of demonstrative evidence to the American Bar Association, National District Attorney’s Association, National Association of Attorneys General, and numerous state prosecutor associations.