The Confrontation Right and Technology

The case of New Mexico v Thomas came across my desk this morning. The  blog post that alterted me to it was primarily about judicial use of social media but the first sentence caught my eye. It stated that an appeal against conviction in a murder case was overturned because an expert witness for the prosecution testified via Skype, which the Court held violated the Confrontation Clause of the United States Constitution.

The “confrontation clause” requires the physical presence of witnesses at a criminal trial. There was a proposal to amend the Federal Rules of Criminal Procedure in 2004, allowing unavailable witnesses to testify via two-way video. Justice Scalia said:

I cannot comprehend how one-way transmission . . . becomes transformed into full-fledged confrontation when reciprocal transmission is added. As we made clear in Craig, [497 U.S.] at 846-47, a purpose of the Confrontation Clause is ordinarily to compel accusers to make their accusations in the defendant’s presence—which is not equivalent to making them in a room that contains a television set beaming electrons that portray the defendant’s image. Virtual  confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones.

In the United States it is very difficult in light of the strength of the confrontation clause to have a witness testify via video-link. Technology can provide the necessary ability to “confront” via video link. Many of the obstructions to the proper evaluation of information needed by a fact-finder to arrive at a conclusion arise from practices rooted in the ritualised oral procedures of evidence giving that have surrounded the criminal jury trial. These procedures were perfectly satisfactory in an era where communication imperatives and an absence of the range of communication technologies present today mandated the “physical presence participation” model of the criminal jury trial.

It is my argument that the essential elements of the confrontation right may be maintained through the use of information technologies whilst dispensing with the inconveniences and costs of the “physical presence participation” model.

The justification for witnesses to be physically present in the Court for examination is no longer relevant when “virtual presence” by means of a high definition screen can enable a better and clearer view of a witness than is possible from a jury box across a courtroom to the witness stand. The questionable value of demeanour suggests that this justification for presence is at best arguable and in reality is a fallacy.[1] One could go so far as to suggest that video-conferencing technology may make it possible for witnesses to give evidence from remote locations and for the accused to be “virtually present” without compromising rights. “Visual presence” may replace “physical presence.”

Audio-visual (or videoconferencing) technology dispenses with the need for physical presence because it maintains the essential aspects of the confrontation right. The accused is able to hear the evidence that is given. There is the ability for cross examination. The availability of high definition screens means that there will be little if any image distortion for the accused or other participants located elsewhere.

In addition the provision of technology should pose little difficulty. There are a number of “video-conference” technologies available. At the moment New Zealand Courts use a dedicated Voice\Video over IP system that is effective but expensive and is not widely available.

In late May 2014 I participated in a test of video-conferencing software and electronic bundle software in a mock international trial.[2] All the participants were scattered – Auckland, New Zealand, Washington DC, London, Croydon and Edinburgh. The communications software used was Microsoft Lync  – now Skype for Business – and the Electronic Bundle was provided by Caselines, a product of Netmaster Solutions, an English company. The trial rapidly established the feasibility of the software tools, both of which are reasonably priced and are browser based which meant that no additional software needed to be installed on a user’s computer. In addition, the software meant that place did not matter – a classic example of the application of spatial technologies. From a technological and practical point of view, a remote hearing is possible, practical and feasible.

The use of video-conferencing or audio-visual technology is relatively common throughout the English and Commonwealth Courts. Section 32 of the Criminal Justice Act 1988 (UK) allows evidence to be given by a witness (other than the accused) by way of “live television link.” Leave is required if the witness is overseas. There is provision for pre-recorded testimony pursuant to section 27 of the Youth Justice and Criminal Evidence Act 1999. Rule 32 of the Civil Procedure Rules in England allow for evidence in civil proceedings to be given via video-link.[3]

The criminal Code of Canada contains provisions governing the reception of evidence by video and audio. The Canada Evidence Act applies to non-criminal matters under Federal law and if provincial statutes are silent, federal law is adopted. Individual Courts may have rules relating to the reception of evidence.[4] Australian Courts have deployed video-conferencing for court proceedings and the taking of evidence and for pre-trial matters – not unsurprising given the vast distances in that country.

However, despite what is clearly widespread use of video-conferencing in a number of jurisdictions there is still hesitancy, even among legislators. In the debate about the introduction of the Courts Remote Participation Act 2010 objections to AVL use had two major themes. The first, as may be expected, related to the confrontation right and the “physical presence” rule implied by s.25(e) of the New Zealand Bill of Rights Act 1990. The other related to some of the technological shortcomings surrounding the use of AVL. There was little opposition to AVL being used for procedural hearings but there was considerable objection to its use for a substantive hearing.

One suggestion was that without physical presence an accused could not keep tabs on the “cozy” conversation between counsel, the inattentive or snoozing juror or, worse still, the sleeping judge or that the camera may not be playing on the key participants at a vital stage. Such a suggestion ignores split screen and multi camera technology, along with voice activated cameras and swivelling cameras. The days of a single static camera are long gone. At no stage in the debate did there seem to be a consideration of the advantages or shortcomings of the use of technology to fulfil the purposes of the Bill of Rights Act or the Evidence Act. Rather, the visceral reaction was based upon the outrageous suggestion that a trial could take place other than in the physical presence of the accused.[5] A proper and informed debate on the use of technology in the Court system would have been preferable..

[1] Robert Fisher QC “The Demeanour Fallacy” [2014] NZ Law Review 575 at 582. See also Chris Gallavin “Demeanour Evidence as the backbone of the adversarial process” Lawtalk Issue 834 14 March 2014 http://www.lawsociety.org.nz/lawtalk/issue-837/demeanour-evidence-as-the-backbone-of-the-adversarial-process (last accessed 20 June 2014); Professor Ian R Coyle “How Do Decision Makers Decide When Witnesses Are Telling The Truth And What Can Be Done To Improve Their Accuracy In Making Assessments Of Witness Credibility?” Report to the Criminal Lawyers Association of Australia and New Zealand” 3 April 2013 p. 8; On the subject of demeanour generally see Professor Coyles extensive bibliography. See also Lindsley Smith” Juror Assessment of Veracity, Deception, and Credibility,” http://www.uark.edu/depts/comminfo/CLR/smith1.html

[2] For reports see http://www.lawgazette.co.uk/5041446.article?utm_source=dispatch&utm_medium=email&utm_campaign=GAZ020614   http://www.independent.co.uk/news/uk/home-news/the-etrials-of-the-future-judges-take-part-in-pilot-that-could-revolutionise-court-system-9474101.html and for an interview with Judge Simon Brown QC on the effectiveness of the trial see https://www.youtube.com/watch?v=7r8RUwORvkc&feature=youtu.be

[3] Information on video-conferencing in the English Courts can be found here https://www.justice.gov.uk/courts/video-conferences

[4] For example the Court in Ontario may order that a hearing be conducted in whole or in part by means of a telephone conference call, video-conference or any other form of electronic communication, and “The Court may give directions to facilitate the conduct of a hearing by the use of any electronic or digital means of communication or storage or retrieval of information, or any other technology it considers appropriate.”

[5] For the debates see  Hansard Vol 664, p. 12266 http://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100629_00001172/courts-remote-participation-bill-%E2%80%94-second-reading ; Hansard 30 June 2010 Vol 664 p. 12349 http://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100630_00001105/courts-remote-participation-bill-%E2%80%94-in-committee ;

 

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A Digital Progress – Court Technology – A Twenty-Seven Year Overview

This is a post that I wrote as a Guest blogger for the IITP Blog under the title “Courting Technology” and it subsequently appeared in the National Business Review.

When I left practice to join the District Court Bench at the end of 1988, computers were being used primarily for word processing and office administration and accounting, although some of us were developing uses for computers to put together database and legal reference materials. There was no publicly accessible Internet. But some of us saw the potential for computer use within the law. Upon appointment to the Bench I gave some thought to the way that computers could become part of judicial activity.

A very helpful tool that is provided for Judges upon appointment is what is called a Benchbook. This may consist of a number of helpful or summarised guides for commonly encountered issues or problems that a Judge may need to address. Benchbooks were provided in hardcopy and sometimes ran to several volumes depending upon specialist jurisdictions or Courts over which a Judge may preside. Benchbooks are now provided in electronic format.

One of the first things that I did was transform Benchbook material into digital format and I began to develop a number of other electronic reference materials as well.

I was not the only judge who could see a digital future for the Judiciary and within a year of my appointment there were discussions among some Judges to bring computers if not onto the Bench at least into Judges Chambers. There was a reasonably positive response from the Ministry of Justice and a “Computers for Judges” program was put in place. Early laptop computers – orange screen Toshiba “luggables” began to find their way on to judicial desks. Although these machines may not stack up beside today’s high powered slim line notebooks, they were certainly the newest and latest technology at the time.

A group of Judges led by Justice Robert Fisher developed a set of judicial case management and record-keeping tools known as the Judicial Workstation. This utility also had a facility to store decided or completed cases to which reference might later be made. About the time that there were discussions about setting up LANs and WANs for the Courts and the Judges to enable sharing of materials and cases. Then the Internet arrived.

By the early 2000’s computerisation was a vital part of the Court process. Case management systems were in place in the back office, decision databases were being developed and digital systems designed to make judicial working more efficient were being developed.

One of the essential tools for lawyers and judges is an accurate reliable database of caselaw. Pre-digital paradigm, this material was made available in print in law reports but the development of caselaw databases such as LexisNexis and Westlaw provided a larger quantity of material that could be the subject of targeted searches. The Ministry of Justice and the Judiciary began to develop databases of decided cases which would be made available for reference by Judges and in time much of this material was made publicly available via the Judicial Decisions Online website https://forms.justice.govt.nz/jdo/Introduction.jsp

Parliamentary Counsel’s office developed a website providing on-line access to New Zealand legislation. http://www.legislation.govt.nz/ The project was not without its difficulties but the site is reliable, authoritative and provides free access to legislation to all New Zealand citizens who are connected to the Internet.

Sadly some of the early promises of technological innovation have not yet been realised. The paperless court – a goal that has been on the books for many years – has not eventuated, and although there are informal processes available for filing documents electronically, a one-stop website for filing case materials has not yet eventuated. Another tool that was to provide a fully electronic court was the E-Bench which would enable Judges to record the progress of a case electronically rather than on a paper. It is to be hoped that these innovations will be realised in the future.

In my time on the Bench I have seen remarkable developments in the use of technology. When I was appointed virtually all the processes involving the running of the Court were manual, involving handwritten or typed records. Today there are evidence presentation technologies used regularly in Court. The use of audio-visual technologies allows “appearances” by parties and witnesses to take place via video-link. Technology is employed to make the process of giving evidence less traumatic for vulnerable witnesses. Media guidelines have been developed by Judges to enable cameras in Court to cover trials. The Courts have developed a website – the Courts of News Zealand http://www.courtsofnz.govt.nz/ which provides a one-stop shop to ascertain details of the Courts, the Judges, recent decisions of public interest and court sitting calendars and case summaries. In a very recent innovation, the Courts of NZ have a twitter presence @CourtsofNZ.

The future is promising for the continued innovative use of technology to improve Court processes and provide proper access to justice for New Zealanders.