The Opportunities and Challenges of Court Remote Appearances

Skype is now as ubiquitous as ICQ once was. We have family in Calgary and we regularly connect to them from Montreal using Skype. Using laptops at both ends, the software is simple and making the connection is a snap. Sure, the picture is grainy and frames are dropped: so what? It costs nothing.

Enter the world of courts, tribunals and commissions. The question is bound to be asked: why can’t we allow witness so and so to appear remotely using Skype or a similar program? If you think this reasoning simplistic, think again, as evidenced by the George Zimmerman trial.

The opportunities related to remote appearances make it hard to discard the option altogether. There are promises of cost savings and time savings: witnesses would not incur travel costs, expert witnesses could shoulder a higher number of court appearances and even judges could appear remotely in selected matters. These are the surface opportunities.

There is, however, a much more fundamental opportunity that courts and tribunals must seize if they are to remain in sync with society. That opportunity is to embrace technology:

We live in an ever-increasing on-demand society: we have much higher expectations of immediate service than previous generations. Society adapts. For example, there is an increasing number of jurisdictions in which telemedicine is possible, thereby dispensing with the need for patients to wait in clinics or hospitals for hours – patients can just stand by at their computer and get much faster service from an online physician. Similarly, companies offer goods and services over the Internet and most can be purchased within minutes, governments allow e-filing of income tax returns and immediately send reimbursement cheques (when applicable), and a significant segment of society is leveraging social media to get immediate connection and feedback. If the courts do rise to meet this higher level of expectations, there is a real risk of further desertion of traditional judicial processes in favor of alternate dispute resolution mechanisms that embrace technology. (Erich P. Schellhammer, A Technology Opportunity for Court Modernization: Remote Appearances, January 2013, p. 84, online: http://bit.ly/14x1EZY)

Given the opportunities and promises of technology, why is it difficult to implement remote appearances in adversarial contexts (courts, tribunals and commissions)? After all, it is not very difficult to use Skype and similar programs. Here are some answers.

There is a wide range of activities taking place during a hearing. Assuming it is a hearing during which a witness appears remotely, the following considerations apply:

  • Is a life-size, high quality appearance is required? This is usually the case for high stakes testimonies. In this case, you need a higher-quality-than-standard-issue-laptop camera to fuel the video feed with the appropriate frame rate and resolution and a high-quality display in the courtroom;
  • Even if a life-size high quality appearance is not required, you still need a camera setup in the courtroom that allows the remote witness to view counsel / judge / jury, a sound capture setup in the courtroom that allows the remote witness to clearly hear whoever asks a question (counsel, judge, court clerk or even stenographer), a speaker and display system in the courtroom so that court participants can hear and see the remote witness;
  • The testimony of a witness is evidence and as such may require a recording option that enables the real-time or later production of a transcript; and
  • This communication feed also has to be secure and not subject to interruptions or eavesdropping by third parties.

These requirements, taken together, are beyond the reach of consumer oriented teleconferencing software like Skype. Depending on the nature of the hearing and the matter in play, the audio-visual requirements may vary, but fundamentally many requirements will stay the same owing to the adversarial nature of the process. For that reason, it may be advantageous to turn to specialized solutions and vendors that offer proven remote appearances solutions. This approach has the advantage of reducing the complexity of setting everything up from individual components, which may be a daunting task. When in doubt, rely on the following to prepare your requirements:

  • Independent studies, white papers and reports that inform you on the current status and issues related to court remote appearances (such as the CCCT White Paper cited above);
  • Standards based solutions to ensure interoperability with a variety of video endpoints that might be available to remote witnesses;
  • Independent studies, white papers and reports that inform you of the optimal conditions under which remote appearances should be conducted (such as this Australian University Research Paper).

I also suggest, as a second step, putting out a Request for Interest to solicit the feedback of Vendors. Many of them have implemented several court remote appearances and have the know-how, expertise, solutions and hardware to meet such needs. Governments should not be afraid to tap into that expertise before issuing a Request for proposal.

Comments

  1. Does any question arise in these remote proceedings about the competence of the tribunal to administer a binding oath on the witness out of the jurisdiction? Is the witness deemed to be before the court for that purpose? Or should the witness take the oath (or make the affirmation) before someone in the same place as the witness, so (for example) an Ontario tribunal could rely on it under s.45 of the Evidence Act?