And despite the inevitable swings, the judges said virtual strategies have preserved the essence of justice during the country`s worst health crisis in a century. The reconstructed processes are divided into modules (e.g. opening statements) and presenting lawyers explain their strategy and what they wanted to achieve. This and other in-house programs allow junior lawyers to benefit from the training of the most experienced lawyers. Mentoring should also include preparation for post-COVID studies, which are discussed here. But many questions remain unanswered. Almost every question asked about virtual court proceedings has an implicit question behind them: Could moving an online trial affect its outcome? Hearings with witnesses are a little trickier, but even these have been conducted virtually with relative success during the pandemic. The real question was whether full-fledged jury trials would actually be transferred to the online space. Could lawyers be persuasive enough through a computer screen? Would jury members who log in from home be easily distracted by roommates, pets, or social media? And most importantly, would justice finally be served? But before Judge Indira Talwani held two hearings at the end of August, her Boston court had to use an entirely new technical structure to support trials involving witnesses from other continents. In an international custody dispute, a relative from Armenia would participate, while a separate trade dispute involved potential witnesses from London and China.
While there is no difference in jury diversity in virtual trials, equal participation is always an issue. Some findings cast doubt on the truly egalitarian nature of online meetings, with reports that participation by women and people of color is declining – so the jury is still waiting, so it speaks. However, it has been found that observers may perceive in-person testimonies differently than in virtual environments. General telecommunications research suggests that people are less likely to recognize emotions from video calls, especially when the flow slows down or freezes (Schirmer, A., & Adolphs, R., Trends in Cognitive Science, Vol. 21, No. 3, 2017; Bruce, V., Interacting with Computers, Vol. 8, No. 2, 1996). Studies of witnesses who appeared remotely for asylum hearings also suggest that they are less successful in representing their case than those who appeared in person, perhaps because they receive less empathy (Bandes, S.A., & Feigenson, N., 51 Southwestern Law Review 20, 2021). These findings don`t hold water in all situations, Broda-Bahm noted, so it`s possible that levels of empathy and emotion recognition are factors that differ depending on the context of the study.
However, seeing is not necessarily believing, and lawyers are particularly concerned about credibility judgments in online trials, said Robbennolt, who conducted a review of the psychological literature relevant to online studies. Can lawyers, judges and jurors still distinguish lies from the truth with less nonverbal evidence? The main advice Guthrie offers is simply to practice, practice, practice. The key to success in a courtroom, virtual or otherwise, is good preparation. When you are prepared, you will be more confident and a better advocate for your client. Guthrie urges lawyers to really learn more about his technology by testing ahead of time. If you don`t know how to use a feature or feature of Zoom or other legal technology platforms, it can hurt you in front of a jury. “The constant refrain we hear in meetings is, `Hey, you`re dumb. You`re dumb!` Guthrie said. “You don`t want to do that in front of a jury.” The draft virtual format had significant advantages and disadvantages, Talwani said. On the negative side, litigants cannot see each other in person, but in the two cases she heard, the opposing parties knew each other well, which reduced that concern. When Pechman began developing a manual for judges and lawyers on virtual trials, Chief Justice Richard Martinez asked them to expand their scope to virtual jury trials, where jurors would hear the case from home using virtual technology.
The motion forced them to examine legal and technical issues that had literally no precedent in the federal judiciary. Many witnesses have been presented virtually at COVID-19 trials, and it is likely that this will remain so. Now, however, there is a new element to consider in the possible use of an advance statement as witness testimony – in some cases, it is played out before a jury and witnesses are not presented live. This involves a new level of deposit readiness; For example, consider asking questions that you may have reserved for trial because the witness may not be there. This means integrating the statement into your strategy and considering from the beginning various issues that you once had the luxury of postponing to trial. Whether it`s virtual or in person, you`ll also need a team to help you find social media once you have your list of potential judges. For criminal litigators, the most frightening prospect of virtual jury trials is the inherent inability to communicate with jurors. From a procedural point of view, the process is a theatre. The courtroom is the stage. Lawyers are the actors.
And the jury is the audience that follows each part of the show. The composition of virtual juries raises other questions. Pechman was particularly concerned that requiring the use of computer equipment would distort the jury pool and reduce the number of elderly and low-income judges. The court made arrangements to train jurors without computer skills and to lend computers to those who did not have the proper equipment. Under the CARES Act, the judiciary will terminate most electronic procedures once the pandemic emergency has been declared. Until then, the judges agreed upon in the interviews will play an important role in the further development of the cases. The idea of witnesses testifying by video in criminal trials is still a relatively new concept. It was not until 1990 that the Supreme Court took up the first case challenging the constitutionality of a witness testifying by videoconference. In Maryland v. Craig, the court, in a 5-4 decision by Justice O`Connor, ruled that the confrontation clause did not prohibit the use of disposable television to present the statements of an alleged victim of child sexual abuse. 497 U.S.
836 (1990). Thus, according to Craig, a witness may testify by video against a criminal defendant if the court “(1) holds an evidentiary hearing and (2) concludes: (a) that the refusal of face-to-face physical confrontation in the trial is necessary to promote important public order, and (b) that the reliability of the testimony is otherwise assured.” United States v. Yates, 438 F.3d 1307, 1315 (11. cir. 2006). “We have to accept the fact that this is a new frontier as litigators — and the same old tricks won`t work on camera,” said Carl Guthrie, executive director of the Texas Poverty Law Project and an attorney in the nation`s first virtual criminal trial. This is something that is difficult to study, partly because random assignment outside of simulated experiments and laboratories is not possible. However, some data suggest that the results could be affected.
One study suggests that bail tends to be higher when accused appear remotely (Diamond, S.S., et al., Journal of Criminal Law and Criminology, Vol. 100, No. 3, 2010). Lawyers who relied solely on videoconferencing to advise clients during the pandemic also reported difficulties in the plea bargaining process (Daftary-Kapur, T., et al., Law and Human Behavior, Vol. 45, No. 2, 2021). “We will only have one courtroom in Minneapolis and one in St. Paul for trials,” Tunheim said, “so the ability to conduct civil trials virtually as we catch up on our backlog of criminal cases will be very helpful.” But how can you control the courtroom in a virtual environment? During the COVID-19 pandemic, many courts have switched to electronic procedures to overcome the quarantine challenge and ensure access to justice for litigants. It was and still is a cost-effective and efficient way to continue the work of the courts; And we`ve seen it all, from routine hearings to jury trials completely far away. Covid-19 and the Courtroom: How Social and Cognitive Psychological Processes Could Affect Processes During a Pandemic Leach, A.-M., et al., Psychology, Crime and Law, 2021 Other courts have adopted a mix of tactics. In the District of Connecticut, jurors were selected in a civil case virtually at home, but then went to court for a personal trial. Psychological science has long offered insight into the dynamics of court cases, but further research on online trials will take time.
Lab experiments and simulated virtual trials are now underway, but much of the work done by psychologists since the beginning of the pandemic, including reviewing and interpreting relevant literature on attention, memory, persuasion, human-computer interaction, etc. While courts have struggled with questions about virtual proceedings, they have also had to deal with the impact of protections in the courtroom. Do masks, social distancing, and other public health protocols affect how participants feel during a study — or how they perceive each other? As COVID-19 vaccination efforts go well in 2021, there seems to be light at the end of a very dark tunnel. Of course, as there is no exact timeline for when the pandemic will be behind us, many jurisdictions will continue to exercise caution in the face of COVID-19, further limiting the availability of jury trials.