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A new (virtual) reality for criminal trials is just around the corner. Although video court appearances from jail and police stations are very common for bail hearings and other pre-trial appearances, the trial itself still occurs inside a physical courtroom.
The Crown, criminal defence lawyers, and accused all must make their appearances in person, in a courtroom before a judge. This, however, is changing – and with an ongoing pandemic, the change is happening fast.
Zoom trials are coming to the Ontario Court of Justice and are expected to start as soon as after Labour Day. The Ontario Review Board is already conducting Zoom Hearings and the Superior Court of Justice after July 6, 2020, will be conducting pre-trial motions and some trials by Zoom. We take a look at the benefits and challenges of virtual trials in the criminal justice system.
PRECEDENCE FOR VIRTUAL TRIALS
The idea of changing up court settings during a pandemic is not altogether new. During the Spanish Flu outbreak of 1918, trials were moved outdoors to reduce the risk of spreading the virus.
At the time, of course, they did not have access to video conferencing as we do today. Making the move to virtual trials would limit COVID-19 exposure risks more effectively than simply moving trials outdoors.
Already, the virtual trial response has begun to come in to play. Texas has Zoom trials underway for civil juries, and Ontario has begun testing CourtCall in some jurisdictions. CourtCall is a third-party service for making telephone and video appearances. It is currently in use at the Court of Appeal for Ontario.
BENEFITS OF ZOOM TRIALS
In the short-term, the benefit of a virtual trial is pretty clear. It limits the risk of COVID exposure, making it safe to resume trials. Even after things normalize in the (hopefully) near future, Zoom trials may be here to stay.
Using video trials, or at least allowing more video appearance could help streamline legal processes. This would save taxpayers money, expedite trials, and put less strain on the accused and victims alike. In the current system, for example, even if the accused is only needed for a one-minute appearance, they need to be transported from jail to the courthouse and back. This takes up valuable time and resources.
It seems the most likely long-term outcome is that more virtual elements will come into play in regular trials, rather than replacing them outright. For all that a Zoom trial can expedite the criminal process, there are still some limitations that could be problematic if trials all become virtual.
DRAWBACKS OF VIRTUAL CRIMINAL TRIALS
Currently, there are a few important concerns as to the potential consequences of holding virtual criminal trials. In particular, it is unclear how this process will ensure a fair trial.
An online jury presents a high possibility of people being distracted. They could be watching TV, doing their own work, using personal devices, or even texting other people. For those sharing a space, there is even a risk of being influenced by others. Unless there is a good solution to this, a jury trial could be unfair to the defendant.
Video and audio limitations could also cause problems for the defence. Any inability to properly view evidence or adequately read the body language of witnesses decreases the ability to question their credibility. There is even a risk of witnesses being “coached” by someone off-camera, influencing their responses.
As well, there are always security concerns with an online trial. The professional version of Zoom offers end-to-end encryption, preventing anyone from spying on the communications. However, it’s always possible that someone will eventually find a way to breach these security measures.
Another worrisome issue is how video conferencing appears to influence professionalism. Florida Judges already had to issue a reminder to lawyers to wear pants during Zoom trials. A message from Broward County Judges includes:
It is remarkable how many ATTORNEYS appear inappropriately on camera. We’ve seen many lawyers in casual shirts and blouses, with no concern for ill-grooming, in bedrooms with the master bed in the background, etc. One male lawyer appeared shirtless and one female attorney appeared still in bed, still under the covers. And putting on a beach cover-up won’t cover up you’re poolside in a bathing suit. So, please, if you don’t mind, let’s treat court hearings as court hearings, whether Zooming or not.
PROFESSIONAL CRIMINAL DEFENCE FOR VIRTUAL TRIALS
During the current pandemic, virtual trials may be the only way to safely guarantee one’s right to be tried in a reasonable time. But until good solutions are found for these issues, virtual elements should be incorporated, but not fully replace physical criminal trials. Every criminal trial is different, they each have their own dynamics and considerations. While a virtual trial may be the best strategic option in some cases they could result in the most unacceptable and unjust outcomes in others.
While virtual trials go on, there is a greater need for professionalism and pre-trial preparation from criminal defence lawyers. William Jaksa is a consummate legal professional, dedicated to protecting your interests and your rights whether in a virtual or physical trial.
Contact William Jaksa today for a consultation.