By Suk-Yeon Won
As COVID-19 infections caused massive shutdowns of traditional in-person court proceedings, many American courts quickly shifted to remote proceedings.[1] At the onset of the pandemic, US courts have conducted “hearings, depositions, arraignments, settlement conferences, and even trials over Zoom and other meeting platforms.”[2] As some judicial innovators such as Michigan Chief Justice Bridget Mary Cormack had long desired, “virtual justice” is on the rise as going online provides numerous advantages such as making court proceedings more transparent, more accessible, and more convenient.[3] Furthermore, the “Guiding Principles for Post-pandemic Court Technology” stated that: the legal system should “move as many court processes as possible online” and keep them there after the risk of infection passes.[4]
There is considerable debate about the expanded use of remote Zoom technologies in the long term. In fact, the legal standards for allowing Zoom court proceedings have pointed to Federal Rules of Civil Procedure 30(b)(4) and 43.[5] Unsurprisingly, courts globally discovered that the health risks posed by in-person court proceedings during COVID-19 constituted “good cause in compelling circumstances” sufficient to permit Zoom video testimonies.[6] Specifically, remote proceedings also allow prospective clients to have more access to justice by decreasing the costs of travel, and allowing for shorter periods of missed employment.[7] Furthermore, Zoom trials also provides judges to truly evaluate witness credibility since judges are able to directly observe the witnesses and their facial behaviors.[8]
While Zoom has proved to be beneficial for lawyers conducting various forms of “lawyering”, the remote trial processes has created several difficulties ranging from technological to legal challenges.[9] Technological difficulties of Zoom trials include unsteady internet connections to microphone and video failures.[10] These technological difficulties may cause “judges or jurors to turn their frustration with technology against a criminal defendant in a criminal trial, whose conviction or sentence could then be improperly and unfairly influenced.”[11]
Video conferencing does not quite violate due process, but it raises critical questions about how litigants’ rights and their access to justice are positively or negatively impacted. In fact, the “subjective nature of which court trials happened to be scheduled during COVID-19 and thus should be performed remotely, potentially violates due process and other host of issues.”[12] True, courts have held that most constitutional rights are waivable, but there can be some issues when dealing with serious offenses. Furthermore, criminal jury trial via Zoom raises a Constitutional issue about the defendant’s Sixth Amendment right to confront his/her plaintiff.[13] Thus, “the right to counsel and to be present are implicated in the communication with counsel virtually is insufficient or made more difficult.”[14] These technical glitches could create in ineffective process violations during trial proceedings as frozen screens or audio errors can prevent the defendant or the jury to see or hear evidence.[15]
However, I believe that despite all the problems, Zoom conferencing could create substantial benefits in many matters, “offering expanded access to justice to indigent clients, avoiding the costs of travel, and allowing for shorter periods of missed employment.”[16] More litigants are enunciating and articulating louder during virtual proceedings, which can aid the judges to better understand the facts of the case and the merits of the argument.[17] In fact, many of the problems and concerns people have with Zoom proceedings can also happen in person, and the skilled attorneys have the obligations to observe the litigants to ensure justice is served and no foul play occurs.[18]
Video conferencing technology will continue to be a valuable tool during COVID-19 pandemic. I strongly believe courts must realize the necessity of more research and analysis in the field of both remote technology and its impact on a diverse range of cases as well as the “benefits and drawbacks with respect to access to justice.”[19]
[1] See Angela Chang, Zoom Trials as the New Normal: A Cautionary Tale, The Univ. of Chi. L. Rev. Online(Sept. 4, 2022, 10:55 AM), https://lawreviewblog.uchicago.edu/2020/11/19/zoom-chang/.
[2] See id.
[3] See id.
[4] See Erika Rickard, How Courts Embraced Technology, Met the Pandemic Challenge and Revolutionized their Operations, PEW (Sept. 18, 2022, 13:58 PM), https://www.pewtrusts.org/en/research-and-analysis/reports/2021/12/how-courts-embraced-technology-met-the-pandemic-challenge-and-revolutionized-their-operations.
[5] See Chang, supra note 1.
[6] See id.
[7] See Michael Delaney, State v. Williams: Telephonic Hearings, Due Process and Access to Court During the Pandemic, McLane Middleton(Sept. 4, 2022, 11:03 AM), https://www.mclane.com/insights/state-v-williams-telephonic-hearings-due-process-and-access-to-court-during-the-pandemic/.
[8] See id.
[9] See Willie Epps. Jr. and Cailynn Hayter, Zoomed in to Justice: Remote Proceedings During a Pandemic, ABA (Sept. 4, 2022, 11:45 AM), https://www.americanbar.org/groups/gpsolo/publications/gpsolo_ereport/2021/november-2021/zoomed-to-justice-remote-proceedings-during-pandemic/#26.
[10] See Chang, supra note 1.
[11] See id.
[12] See id.
[13] See id.
[14] See id.
[15] See Epps and Hayter, supra note 9.
[16] See Delaney, supra note 7.
[17] See Id.
[18] See Id.
[19] See Id.