By: Sarah McLaughlin
Cutting in and out, talking over one another, the constant “can everyone hear me?” or worse yet, an unexpected situation when a participant doesn’t realize they left their camera on. In the post-pandemic world, we have all become far too familiar with the trials and tribulations of remote meetings. Now, consider those same challenges in a situation where there are significant legal consequences at stake. Zoom, Teams, and other video conferencing software have gained immense traction in their use in courtroom proceedings that would typically be conducted in person—and this software, while not entirely new, has shown no sign of stopping in terms of jury selection, pre-trial hearings and other matters within both civil and criminal proceedings. While the idea of not having to leave your home or office to conduct these hearings seems like a solution to make everyone’s life easier, it also raises some significant questions regarding socioeconomic classes, human connection, and equal access to justice.
The first and most obvious issue that online-only court proceedings raise is the fact that while much of today’s world is connected to the internet in some way, there are still large populations of individuals who either don’t have the devices required, access to a stable internet connection at all times of the day, or even the foundational knowledge required to access these platforms. First, consider older generations who may not have had the fundamental exposure to the internet that much of today’s world receives. Many jurisdictions have an imposed age maximum for jury duty (that allows the eligible person selected to choose whether they’d like to participate); however, in most states, the minimum age for exclusion is only as low as mid-60s/early-70s and, in some states, as high as 80. For some people that fall within this age range, figuring out how to access a specific Zoom/Teams link, have an account, or even have a device that can access the link might be a significant obstacle that can have major repercussions (such as a summons for failure to appear) if they are unable to figure out how to gain entry in time.
In addition to older populations, a significant number of people in the United States either do not have the resources required to access court-mandated online appearances or are unable to be in a place with a stable Wi-Fi connection. In 2022, a study conducted on broadband internet found that service providers often provided low-quality internet access to communities that were typically poorer or communities of color in a practice that has become known as “digital redlining.” Spotty internet provides many problems that can affect an individual’s participation in court activities. A poor connection might mean the participant cannot hear or understand instructions, testimony, and important facts of what is being presented, thus creating a potential barrier to making a complete and informed decision.
Additionally, from the alternate standpoint, a spotty internet connection might hamper an individual’s constitutional rights while on trial or facing some other form of legal judgment. In 2022, the Massachusetts Supreme Judicial Court heard Adoption of Patty, in which a mother facing termination of her parental rights suffered such severe technological challenges that the SJC believed it violated her 14th Amendment due process rights. The SJC moved to hold that required permanent safeguards be included in all future trials conducted on Zoom or face suspension of proceedings. In some ways, the safeguards provided by the SJC reflect similar to those of ensuring all parties before the court have the right to be represented by an attorney, including ensuring that the parties have access to adequate technology and, if not, have the court step in to determine what is necessary to make sure that such technology is provided.
The secondary and perhaps less obvious issue that remote court proceedings present is the lack of human connection that some people might rely on to make their case more effective. This could mean an appeal to a jury, rapport with a judge, or the overall effort to try and humanize the actions that are being put into question. There is some argument that virtual court appearances make people feel more comfortable and thus be more honest with judges. However, there is also great concern for the removal of “the human element,” especially when it comes to criminal trials. There is less active listening, the inability to make real eye contact, and, for some attorneys, the inability to connect with a jury when delivering opening and closing statements. The limitations in technology may hinder the nuanced understanding of emotions, body language, and subtleties that can significantly impact legal outcomes.
In navigating the landscape of remote court proceedings, a myriad of challenges has emerged, from technical glitches to the nuanced impact on human connections within legal contexts. The convenience of virtual platforms has transformed court activities, yet it brings to light the stark disparities in access, especially among older generations and socioeconomically disadvantaged communities. The hurdles of digital redlining and unreliable internet connections underscore the potential infringement on individuals’ rights to a fair trial—and the erosion of the human element in virtual courtrooms raises concerns about the effectiveness of legal representation and the emotional aspects that might be crucial in criminal trials. As we grapple with the evolving dynamics of online legal proceedings, it becomes imperative to strike a balance between technological convenience and ensuring equal access to justice for all.
Student Bio: Sarah McLaughlin is a second-year law student at Suffolk University Law School. She is a staff writer on the Journal of High Technology Law and is the current President of the Environmental Law Society. Sarah received a Bachelor of Arts Degree in Political Science and Justice Studies from the University of New Hampshire.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
