How Litigators Are Confronting COVID in the Courtroom

Worldwide, courts are grappling with the use of technology and the changing face of trials in light of social distancing, stay-at-home orders, and ongoing spikes of COVID-19 that could be exacerbated by the confines of the courtroom. While the use of technology has increased in courtrooms over the years, that has largely been a slow march forward. The public health crisis, for which there is no definitive end point, has spurred immediate use of videoconferencing and other technology that was not largely present in litigation or in the courtrooms.

A variety of challenges and opportunities have arisen as attorneys, litigants, and judicial officers adapt to the “new normal.” This article discusses some of the issues that have arisen as the legal system works to strike a balance between its role in protecting public health and the administration of justice.

Video Proceedings as a Substitute for Live Proceedings

For over two decades, many courts have acknowledged that videoconferencing is not a perfect substitute for live hearings. The Sixth Circuit wrote, “The immediacy of a living person is lost.” Stoner v. Sowders, 997 F.2d 209, 213 (6th Cir. 1993). The Fourth Circuit remarked that “watching an event on the screen remains less than the complete equivalent of actually attending it.” United States v. Lawrence, 248 F.3d 300, 304 (4th Cir. 2001). This is not to say that all courts have rejected the use of videoconferencing as unworkable; in fact, the contrary is true. See, e.g., Maryland v. Craig, 497 U.S. 836, 857 (1990) (permitting one-way video testimony of a child victim in a sex case); Horn v. Quarterman, 508 F.3d 306, 317 (5th Cir. 2007) (upholding use of two-way closed circuit television for testimony of terminally ill witness); United States v. Burke, 345 F.3d 416, 426 (6th Cir. 2003) (use of two-way videoconference upheld for suppression hearing); Harrell v. Butterworth, 251 F.3d 926, 931 (11th Cir. 2001) (upholding remote testimony because “the witnesses lived beyond the subpoena power of the court”; it was in the state’s interest “to expeditiously and justly resolve criminal matters that are pending in the state court system”; “one of the witnesses was in poor health and could not travel” to the United States; and the witnesses were “absolutely essential” to the case); White v. State, 116 A.3d 520, 549 (Md. Ct. Spec. App. 2015) (holding that two-way videoconferencing testimony did not violate the Confrontation Clause). However, there is not a consistent view on the use of videoconferencing as a substitute for live testimony.

The view on video testimony may be changing in light of COVID. For example, in an opinion from March 2020 permitting videoconference trial testimony in light of COVID-19, one court wrote, “Given the speed and clarity of modern videoconference technology, where good cause and compelling circumstances are shown, such testimony satisfies the goals of live, in-person testimony and avoids the short-comings of deposition testimony.” In re RFC & ResCap Liquidating Tr. Action v. Primary Residential Mortg., Inc., No. 0:13-cv-3451(SRN/HB), 2020 WL 1280931, at *2 (D. Minn. Mar. 13, 2020). Another court rejected a challenge to video testimony in a civil bench trial but simultaneously granted a two-month continuance to allow the objecting party time to prepare. Argonaut Ins. Co. v. Manetta Enter., Inc., No. 19-CV-00482(PKC)(RLM), 2020 WL 3104033, at *3 (E.D.N.Y. June 11, 2020).

Suffice it to say there are divergent views among the courts and among litigants on the use of video technology for contested proceedings, with some courts adopting the position that it should be “the exception and not the rule” (Lopez v. NTI, LLC, 748 F. Supp. 2d 471, 479 (D. Md. 2010)), while others are using video technology in bench trials (In re RFC & ResCap Liquidating Trust Action, 2020 WL 1280931, at *2; Argonaut Insurance Co., 2020 WL 3104033, at *3), and others are going so far as to test the use of video technology in certain non-binding civil jury trials. Courts that may have previously eschewed the use of remote hearings may, over time, find that bottlenecks caused by ongoing public health issues must be addressed through prudent use of video technology.

Other than the obvious pressing benefit of protecting participants from possible public health concerns, proponents for the use of remote technology in trial cite a variety of other reasons for the use of video testimony. For example, it can cut costs of securing witness attendance, thereby leveling the playing field between unequally funded parties. See Cathleen J. Cinella, Note, “Compromising the Sixth Amendment Right to Confrontation—United States v. Gigante,” 32 Suffolk U. L. Rev. 135, 143 (1998) (citing Michael G. Clarke, Comment, “Illinois’ Confrontation with the Use of Closed Circuit Testimony in Child Sexual Abuse Cases: A Legislative Approach to the Supreme Court Decision of People v. Fitzpatrick,” 15 N. Ill. U. L. Rev. 719, 722–23 (1995)); Hadley Perry, “Virtually Face-to-Face: The Confrontation Clause and the Use of Two-Way Video Testimony,” 13 Roger Williams U.L. Rev. 565 (2008). It can also secure the attendance of witnesses who would otherwise be unavailable or outside the jurisdiction of the court. See United States v. Gigante, 166 F.3d 75 (2d Cir. 1999) (allowing a witness with end-stage cancer in witness protection to remotely testify); but see United States v. Yates, 438 F.3d 1307, 1309 (11th Cir. 2006) (video testimony violates Confrontation Clause).

A criticism of the use of technology for remote testimony is that it may affect a finder of fact’s ability to assess witness credibility, as well as how the witness is perceived. In one study, live witnesses were viewed as more honest than video witnesses. Another study, on children who testified over a closed-circuit video feed, found children who testified remotely were seen as less credible and viewers were less likely to sympathize with the child. Even the camera angle and range of the camera were found to influence perception. For example, the use of a “long shot” away from a witness made the witness seem more relaxed and neutral. In cases in which there is a “battle of experts” or other situations in which credibility is key to a dispute, parties and the court should not underestimate the role that the technology itself can play in influencing the finder of fact’s perception.

Another criticism is that it denies the adverse party the ability to engage in “confrontation” via cross-examination of the witness. Confrontation, in the form of cross-examination and impeachment, is central to trial practice. In the criminal law context, a defendant’s right to confrontation is constitutionally guaranteed. U.S. Const. amend. VI; accord Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987). However, there is also support that confrontation is a fundamental component of procedural and substantive due process under the Fifth and Fourteenth Amendments in the administrative (McLeod v. Bd. of Pension Comm’r, 94 Cal. Rptr. 58 (Ct. App. 1970) (“The right to cross-examine witnesses in quasi-judicial administrative proceedings is considered as fundamental an element of due process as it is in court trials.”)) and in the civil setting (see, e.g., Morrissey v. Brewer, 408 U.S. 471, 488–89 (1972)). The right of confrontation is critical “where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy.” Greene v. McElroy, 360 U.S. 474, 496 (1959). A key component of testimony for a finder of fact is being able to perceive the witness and his or her nonverbal cues, behaviors, and reactions upon being asked questions.

As Justice Scalia wrote,

[t]he perception that confrontation is essential to fairness has persisted over the centuries because there is much truth to it. A witness may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts. He can now understand what sort of human being that man is.

Coy v. Iowa, 487 U.S. 1012, 1019 (1988) (quoting Zechariah Chafee, Jr., The Blessings of Liberty 35 (1956)).

For litigators, there is certainly something to be said for being able to physically confront a witness in the same room: prevaricating witnesses’ knowing that they will be subject to facing their opponent can be deterrent. Courts are presently in the unenviable position of determining, for proceedings that require it, what satisfies “confrontation” and if and how confrontation can occur with physically separate parties.

For the time being, many courts have been liberal with continuances, and often litigants have welcomed the opportunity to pause the costs of litigation, especially given the concomitant financial crisis that has involuntarily changed many litigants’ priorities. But depending on the length of the COVID crisis, the bottlenecks may hit a point at which the continued delay is simply too great, and the maxim of “justice delayed is justice denied” may control. At that time, litigants may decide, or the courts may order, that proceedings must go forward through the use of technology, and the prejudice that could occur is less than the prejudice that could occur from the case not proceeding. In addition to the panoply of strategy calls that litigants and attorneys must make in preparing for trial, the impact of video proceedings will likely be another significant factor.

The Digital Divide

There is little question that the internet plays an integral role in our lives. In a recent series of surveys related to COVID-19, citizens of 32 of the 34 countries surveyed used the internet or owned a smartphone or both. In the United States, that number approaches 90 percent. While the number of people with online access in the United States is high, there still remains a noticeable “digital divide,” or the uneven distribution of quality and quantity of access to the internet and technology. Studies on digital divides show they unevenly affect individuals based a variety of factors including socioeconomic standing, race, disability, and age. In the push to adopt technology to the law in a post-COVID world, stakeholders must be aware of these divides. A substantial number of courts and justice systems have created initiatives promoting equal access to justice and increasing access to underserved populations. However, those advancements could be imperiled if there is a failure to examine and account for digital divides when implementing new technology in the face of the COVID crisis.

Some courts are already reacting to this concern. For example, Travis County, Texas, has set up “Zoom stations” to allow out-of-custody defendants to appear for court remotely, and several states are adopting similar technology. For any technology, the court should consider whether the technology (and access to the technology) places underserved populations, unrepresented parties, and parties that fall within the groups affected by the digital divide on the same footing as other litigants. It would be contrary to the goal of ensuring fairness in proceedings if the very procedures courts implement further the digital divide, diminish or impede access to justice, or can be subject to tactical exploitation.

Public Access and Accountability

The United States has an established history of preferring public access to the courts. It is often discussed in conjunction with a criminal defendant’s right to a public trial to prevent decisions about his or her fate being made in secret. However, courts have regularly recognized that the right to public trials is equally for the benefit and protection of the public and for the preservation of the integrity of the judicial system as a whole. See, e.g., Weaver v. Massachusetts, 137 S. Ct. 1899, 1910 (2017) (“the right to an open courtroom protects the rights of the public at large, and the press, as well as the rights of the accused”); United States v. Kolbi, 172 F.2d 919, 923–24 (3d Cir. 1949) (“We are satisfied that the framers of the Sixth Amendment believed it to be essential to the preservation of the liberty of the individual that . . . members of the general public should be admitted to every criminal trial even though it might appear that, in a case such as the one before us, most of them come only out of morbid curiosity.”)

In a case examining a lower court’s contempt ruling, Justice Black opined, “Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution.” In re Oliver, 333 U.S. 257, 270 (1948). A Canadian court, citing utilitarian philosopher Jeremy Bentham, wrote that “[w]ith openness comes scrutiny, with scrutiny comes accountability and with accountability comes enhanced public confidence in the operation of state institutions.” R v. C.B.C. et al., 2013 ONCJ 164, at ¶ 13 (CanLII) (Can.). While technology, when properly employed, can sustain or even increase access for litigants, there is a risk that that technology can serve to exclude the public. In a public health crisis, while physical access to courts may not be feasible, courts must be mindful of still providing some form of public access. Petitions and letters have been filed by open-court advocates and members of the press with state supreme courts to ensure access to courts by the public, notwithstanding physical limitations to in-person access.

Technological limitations in courts can effectively exclude those who monitor court proceedings, the public who seeks to understand the court process, and third parties who have an interest in the decisions. While innovation should be praised and promoted, it cannot be at the cost of the long-standing constitutional requirement of access for the public. Access for the public protects the integrity of the court process, and courts should consider ways that access in virtual space can approximate the access that the public previously enjoyed.

Conclusion

As a legal community, we are in uncharted territory. While there is over 20 years of case law allowing us to examine the slow advancement of technology in litigation and in the courtroom, the legal system has not had to face the sudden, unexpected, and wide-reaching circumstances brought on by COVID. Advances in technology would normally be examined incrementally on a case-by-case basis, a slow burn as precedent developed across the country. COVID has forced the system to adapt not incrementally, but with an incredible leap forward.

Norma C. Izzo is a member of Jennings, Strouss, & Salmon, P.L.C. in Phoenix, Arizona.

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