By: Timothy Dumbroff
The legal field is often faulted for being antiquated when it comes to practices used by attorneys and access to legal services. However, the federal government has provided funding for the delivery of legal services to the poor via Legal Services Corporation (LSC) since 1974.[1] The LSC created the Technology Initiative Grant program in 2000 which provided over 40 million dollars in grants to legal service agencies and nonprofits to increase access to justice in the country. [2] The Covid-19 pandemic has created new challenges to legal services due to court closures, and legal proceedings which have relied more heavily on technological means to conduct proceedings. As courts now reopen many are continuing to use remote technology and some court leaders in the judiciary have suggested that remote proceedings should become a permanent feature of the justice system.[3] These proposed changes raise the question of how remote technology affects litigants’ rights and their access to justice. Some advocates argue that remote technologies may be damaging to the concept of justice as the Sixth Amendment of the Constitution and the Federal Rules of Criminal Procedure Rule 43 provide that a person accused of a crime has the right to confront a witness against him or her in a criminal action.[4]
It is also significant that the accused may have to sacrifice one constitutional right for the sake of another.[5] For example the constitutional right to a speedy trial may be in conflict with the right to a jury trial as well as the right of the accused to confront his accusers.[6] These concerns raise Constitutional and moral questions as to whether a fair and impartial jury can be selected through a screen, and whether a jury will be able to weigh the credibility of a witness during a remote proceeding.[7] A jury’s evaluation of a witnesses credibility would not be able to factor in facial expressions and body language of those in front of the court.[8] If the accused and his attorney decide they will not be able to receive a fair trial then they may be pressured to waive their right to a speedy trial and spend more time in jail until an in person proceeding can take place.[9] One study suggests caution in expanding the use of these technologies and reports that criminal bail hearings over video have resulted in substantially higher bond amounts than in person hearings.[10] Another study revealed that detained individuals were more likely to be deported if their hearings occurred over a video conference.[11] Still another study showed that in three out of the six immigration courts surveyed for the study, judges changed their credibility assessments made during a video hearing after an in person hearing.[12]
These exact challenges were raised in John Vazquez Diaz v. Commonwealth, a case before the Massachusetts Supreme Court.[13] Plaintiff argued that a court order for a drug trafficking trial to be heard over zoom violated his constitutional rights to confront witnesses against him and to an attorney as Diaz stated that he could not communicate with his attorney effectively.[14] The court held that zoom hearings did not violate the Constitution, however they reversed the lower courts order denying a continuation of the trial until it could be held in person and suppressed the order to conduct a zoom trial.[15]
This however must be balanced with the countervailing policy that legal technology can also improve access to justice for low income individuals by technology that provides legal information, technology that connects individuals to attorneys, and technology that automates and produces legal documents.[16] The most common way that technology creates better access to justice is the self-help tools online that provide searchable libraries or practice resources maintained by public interest organizations for pro bono litigants.[17] Video conferencing technology can also reduce the cost of physically being on court for both the litigant and his attorney by reducing expenses born out of traveling, transportation, childcare, and other costs to the individual who chooses to physically appear in court.[18]
The pandemic has changed the justice system, however, as courts rapidly embrace technology we must ask if this innovation is justice or if it is at conflict with a defendant’s constitutional rights.[19]
[1] James E. Cabral, Abhijeet Chavan, Thomas M. Clarke, Using Technology to Enhance Access to Justice, 26 Harv. J.L. & Tech. 243 (2012).
[2] Id. at 244.
[3] Brennan Center for Justice, https://www.brennancenter.org/our-work/research-reports/impact-video-proceedings-fairness-and-access-justice-court (last visited Sept. 5, 2021).
[4] U.S. Const. amend. VI; Fed. R. Crim. P. R 43.
[5] Brandon Marc Draper, Zoom Justice: When Constitutional Rights Collide in Cyberspace, Northwestern L. Rev. Blog (May 7, 2020), https://blog.northwesternlaw.review/?p=1395.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Brennan Center for Justice, https://www.brennancenter.org/our-work/research-reports/impact-video-proceedings-fairness-and-access-justice-court (last visited Sept. 5, 2021).
[11] Id.
[12] Id.
[13] HLS Clinical and Pro Bono Programs, https://clinics.law.harvard.edu/blog/2020/12/defendant-demands-in-person-not-virtual-day-in-court/ (last visited Sept. 5, 2021).
[14] Id.
[15] Vazquez Diaz v. Commonwealth, 487 Mass. 336, 167 N.E.3d 822 (2021)
[16] Thompson Reuters, https://www.thomsonreuters.com/en-us/posts/legal/leveraging-legal-tech-access-to-justice/ (last visited Sept. 5, 2021).
[17] Id.
[18] Brennan Center for Justice, https://www.brennancenter.org/our-work/research-reports/impact-video-proceedings-fairness-and-access-justice-court (last visited Sept. 5, 2021).
[19] Brandon Marc Draper, Zoom Justice: When Constitutional Rights Collide in Cyberspace, Northwestern L. Rev. Blog (May 7, 2020), https://blog.northwesternlaw.review/?p=1395.