Pros and Cons of a Zoom Trial
Since the beginning of the pandemic, courts worldwide have been forced to shut down due to social distancing guidelines. However, recently some trials are going forward over Zoom or another video conferencing application. These trials looked very different than what one might see in a typical courtroom and it became clear there are pros and cons to litigation in this alternative manner. This article will examine the unique aspects of “Zoom” trials and the results thus far.
Pros
The biggest advantage with an online trial is convenience and improved accessibility. Given Canada’s geography and the number of Canadians who live in remote areas, far from courtrooms, online trials allow people to watch and attend from home without the often expensive and challenging travel requirements. Frontline workers in Canada’s legal system discussed in a Canada Policy Alternatives study, that many Indigenous accused offenders who live in rural Manitoba pay in excess of $1,000 for plane travel to attend court, since travel by car is impractical. A cost saving of this magnitude can be extremely impactful for people in these communities.
Moreover, other aspects of legal proceedings that can occur online will be much more efficient for the lawyers involved. These include case management conferences where the lawyers and judge meet to discuss how a case should proceed. Alan Rupe, a lawyer from Kansas said in an interview with The Verge, he would often travel for two full days in order to appear in court for 30 minutes. Now, he takes those calls from his house. Finally, online trials would decrease the expense to the government by eliminating the cost of running courthouses. In 2017–2018, the Ontario government spent $452,069,970 in operating expenses on the Court Services Program. A large percentage of that went towards infrastructure, maintenance and operations of courthouses. More trials online could reduce this cost and leave more money for legal aid which is very underfunded.
Cons
Despite the many advantages, the disadvantages of an online trial are numerous. These include the potential for unprofessional moments when lawyers and judges are unsure whether their microphone is still on. This lead to a rather embarrassing moment during online oral arguments at the US Supreme Court
Other issues include simple technology errors that can slow down and make trials challenging to operate. It is clear from a few months of group work online in any occupation that someone always forgets their password, has wifi, Internet connection or other computer issues. Given the seriousness of a trial, it would be very unfortunate if these occurrences happened during essential arguments where someone’s liberty was at stake.
Moreover, just as there is an advantage for rural Canadians attending court online, this also presents a challenge as many of those communities have inferior internet access and limited funds for new computers and technology capable of attending court online. Solving one problem may just create another.
Another potential issue that can arise concerns privacy and hacking. There is a lot of sensitive information being shared in court that is much easier to access online.
Finally, an issue that may arise is the ability to listen and get a feel for the testimony, which is crucial in court. In a live courtroom, lawyers, judges, and juries can see and hear the witness up close to understand what they are saying and how it is relevant. Analyzing facial expressions, tone and body language is a key element in determining the reliability of the evidence. If this testimony comes across online and sounds muffled or the video is buffering or blurry, the court will struggle to get a real feel for the evidence which can make all the difference.
Online trial in practice
After looking at the pros and cons of online trials on paper, it is worth taking a look at Ontario’s first major case conducted online and examining the impact on the trial.
The defendants, Kamar Cunningham and Bill Allison, were charged with gun trafficking and were arrested by Toronto police in 2018. Both men have pleaded not guilty. Throughout the trial, there were several key takeaways about the differences in an online trial relative to an in-person hearing. It was clear the trial presented many pros and cons that were perhaps not considered initially. The first of the advantages was a lack of formality in how everyone was dressed and acted. There was no standing and bowing for the judge, no robes worn by either counsel or the judge. This is a positive sign, in my opinion, as eliminating formal attire is long overdue. While it was fun to dress up with my classmates for my 1L moot, it is unnecessary to continue this practice of wearing robes and bowing because of the historical significance.
Another interesting factor was how the accused was presented. The Toronto Star interviewed the two defence lawyers on this case, Reid Rusonik and John Struthers. Rusonik said, “The accused aren’t shoved away in a box.” This leads to in his mind a trial that is more “egalitarian and fair.” Another factor he pointed out was regarding cross-examination, a significant part of the job of defence counsel. Rusonik believed that because he could have his notes on his computer, which was in front of him, he could cross-examine more effectively and not lose his place in his line of questioning. Finally, court staff, as well as judges and lawyers, are being trained on working more effectively with on online software and as a result, this trial was conducted smoothly without difficulty.
However, this case avoided some of the probable downfalls of a “Zoom” trial due to its specific nature. The critical evidence in this case centred around police wiretaps and surveillance footage. Therefore, the police were the only witnesses. According to Struthers, this case was not a “classic credibility case.” These cases, such as a murder or a sexual assault where hard evidence can be lacking, often come down to analyzing the demeanour of civilians who are giving crucial testimony and their responses to cross-examination. Struthers contrasted this to the case at hand as the police’s demeanour is “very rarely as important as the logical destruction of their stories.”
The Toronto Star also interviewed Jacquelyn Burkell, a professor at Western University who researches the influence of video technology on human exchanges. She believes there may be a favourable outcome for a witness who may feel uneasy and threatened testifying in an imposing court room. If the witness is at home by themselves they will surely feel more comfortable and at ease. This would likely be far more of a factor for a civilian witness who has never testified before as opposed to a police officer who has ample experience testifying. Finally, this case had no jury. It was very positive that the technology worked well for judges and lawyers who were trained on the software. However, it is unlikely it will be equally successful with people unfamiliar with the situation. The issue surrounding security did come up in this trial. Superior Court Justice Jane Kelly mentioned it was still illegal to take photos and recordings. However, it is unclear if it is possible to police this online.
Conclusion
Despite the many pros and cons, both defence lawyers said the trial was overall more efficient and will only improve with time. The days of a dramatic courtroom may be behind us. Whether this will have a positive impact on the justice system as a whole remains to be seen.
