Technology enabling people to appear remotely in criminal court has benefited institutions as well as individuals. Judicial telepresence can:
- Allow an incarcerated defendant or witness to appear for a hearing without leaving prison or jail grounds.
- Make fearful witnesses less afraid by sparing them the need to be in the physical presence of a menacing defendant, or others, at a trial or hearing.
- Allow courts to save the costs associated with certain in-person appearances.
- Make justice more accessible — for people with mobility issues, as an example — or for witnesses in sparsely populated jurisdictions where the courthouse may be a very long distance away.
- Make sense for specialized civil hearings that serve societal interests. As one example, Montgomery County, Pennsylvania, has used telepresence for adoption hearings.
The judicial telepresence trend, however, has surged ahead of our understanding of its impact on individual rights and the effectiveness of courtroom processes. The judicial community also lacks evidence-based insight on which video/audio/display setup works best for judicial telepresence and so could become a new standard for court systems.
To fill that knowledge gap, a panel of court-process experts convened by the National Institute of Justice (NIJ) probed the benefits and burdens of judicial telepresence technology with an eye toward research on innovative solutions to systemic concerns. A foundational question is whether machines that permit people to appear in court from a distance always respect defendants’ legal rights to be “present” at their trial and to confront accusers.
The panel identified three broad categories of research needs:
- A better understanding of the impact of telepresence technology on court outcomes and actors.
- Creation of technical standards for uniform court application.
- Identification of potential areas for expansion.
The expert panel worked with RTI International (RTI) and RAND Corporation (RAND), as part of NIJ’s Priority Criminal Justice Needs Initiative (PCJNI), to frame the discussion of judicial telepresence and identify priorities. RAND, the lead PCJNI partner agency, recently published a report — Court Appearances in Criminal Proceedings Through Telepresence: Identifying Research and Practice Needs to Preserve Fairness While Leveraging New Technology — on the identified priorities and the panel’s process.
The panel was selected after staff conducted a literature review and consulted with authorities in the field. The panel consisted of five members of an academic, training, or research institute; five local court practitioners (including a judge, a court administrator, a correctional administrator, a public defender, and a district attorney’s special programs unit head); and two staff members from state offices that oversee court services. The panel identified and ranked research priority needs using a formula that accounted for both perceived importance of the need and the practicality of meeting that need in the field.
Highest Priority Research Needs Identified
The panel placed 10 telepresence needs in the top echelon of research priorities, falling within the three broad categories:
- Research into options for improving network connectivity.
- Research into best practices and standards for audio setup.
- Identification of technical issues that impact the effectiveness of telepresence technology, along with the development of national standards for the setup of telepresence systems.
- Development of a training curriculum for different court actors who interact with telepresence technology.
- Development of system models to help telepresence technology purchasers make informed decisions.
- Research into appropriate levels of video quality and image size, and development of implementation standards.
- Research on how telepresence technology affects the quality of delivery of court services.
- Research to better understand the effect of the technology on defendants’ experiences and perceptions of procedural justice.
- Research on whether there is a difference between cross-examinations that occur in person and those that occur via telepresence.
Areas for Expansion
- Development of pilot courtrooms where court staff can try new technologies.
The experts, joined by RTI and RAND staff, held a workshop in November 2018 to discuss judicial telepresence research needs and the lack of evidence-based knowledge. “To date, there has not been a comprehensive landscape analysis to fully examine the key factors courts should consider” in making telepresence technology decisions, the panel’s report said.
Limited Use in Light of Constitutional Constraints
Judicial telepresence is a growing phenomenon spurred by courts’ compelling interest in cutting costs, expediting pretrial and trial case processing, and expanding individuals’ ability to participate in court proceedings. A 2009 survey by the Pretrial Justice Institute found that 57% of pretrial service programs conducted initial court appearances via video. More recently, the State Court Organization data set of the National Center for State Courts, last updated in 2017, showed that state-level offices of courts oversaw the use of video-conferencing in 35 states and the District of Columbia.
The workshop panel report stressed, however, that to date courts have generally limited telepresence use to pretrial proceedings, bail hearings, sentencing hearings, some rights’ cases for individuals in prison, and trial elements other than the core trial proceeding. Defendants’ rights generally dictate that a judge and jury be able to observe a defendant, in the same physical space, as part of the ultimate guilt or innocence determination, and that the defendant be able to face an accuser.
At play are constitutional protections afforded by the Fifth, Sixth, and Fourteenth amendments to the U.S. Constitution. The Fifth and Fourteenth amendments guarantee due process. The experts’ report cautioned, in the context of the Fifth Amendment’s due process mandate, that “telepresence technology might make it difficult to determine whether a defendant who waives certain rights understands what they are agreeing to and can therefore consent to this waiver.” On the other hand, due process is implicated by the amount of time a defendant must await trial in jail, and the availability of telepresence can strengthen that right by reducing trial wait time.
The Sixth Amendment guarantees a defendant both the right to adequate counsel and the right to confront a witness on cross-examination. The right to counsel, including the defendant’s right to confer with counsel during proceedings and to receive competent representation, may be implicated by judicial telepresence, the panel warned. Panel “[p]articipants acknowledged that a defense attorney’s experience providing counsel to a client during pretrial proceedings when [the client is] appearing remotely can be entirely different from that of providing counsel in person,” the report said.
Concern Over Technology’s Effect on Perceptions of Trustworthiness
One concern voiced by the expert panel is the potential for telepresence technology to make a remote defendant appear less trustworthy, “thereby diminishing the defendant’s credibility and potentially increasing the likelihood of harsher case outcomes.”
However, for victims, the panel report noted that telepresence technology could be especially helpful for cases in which physically appearing in court might put a victim at risk physically or emotionally.
The telepresence research priorities report was published by RAND.
About this Article
The research described in this article was funded by NIJ award 2013-MU-CX-0003, awarded to RAND Corporation. The research is a component of NIJ’s Priority Criminal Justice Needs Initiative, a project of RAND in partnership with the Police Executive Research Forum, RTI International, and the University of Denver. This article is based on the report Court Appearances in Criminal Proceedings Through Telepresence: Identifying Research and Practice Needs to Preserve Fairness While Leveraging New Technology by C. Gourdet, A. Witwer, L. Langton, D. Banks, M. Planty, D. Woods, and B. Jackson.