IMPACT OF
VIDEO-CONFERENCING
ON JUDICIARY
By:
MUHAMMAD NAWAZ SIAL
Research & References Officer
Lahore High Court, Lahore
In an ever growing world filled with briskly advancing technology, certain inventions can modify and simplify some of the world's oldest traditions. The straight practice of presenting in-person witnesses at trial has become increasingly more difficult due to the introduction and expansion of international crimes. New crimes and clever criminals have resulted in the implementation of new technologies in criminal trials. While a witness's presence at trial may be hindered by geographical impediments, fears associated with testifying in person, or even lack of security at the trial site, there nevertheless remains a viable method to obtain testimony. Through videoconferencing, unavailable witnesses can be transmitted into Courtrooms, thus eradicating the limitations on testimonies of encumbered individuals as well as individuals located worldwide. Videoconferencing appears to be an unassailable solution; however, as a seemingly new technology, it presents a number of practical and legal issues for Courts. There are so many advantages of videoconferencing protects witnesses by allowing individuals unwilling or unable to testify in Court to testify from protected locations that require little to no travel or expense. Despite such advantages, there are several drawbacks to videoconferencing that have produced a significant amount of criticism. Opponents of VCT maintain that the lack of eye-to-eye contact between witnesses and other Court participants is troublesome to the constitutional right to confront witnesses. Additionally, the costs associated with obtaining and maintaining equipment needed for videoconferencing, and the possible inability of developing nations to participate in videoconferencing, are issues central to the debate.
What
Is Videoconferencing?
Videoconferencing is “the holding of a conference among people at remote locations by means of transmitted audio and video signals”. Through these conferences, individuals meet one another in a real-time virtual manner as if they “were in the same room” without the hassle and expense of traveling. While slight limitations remain “depending on the quality of the equipment” employed by Courts, the general facial and physical expressions communicated by witnesses are rarely inhibited by the use of such technology. Videoconferencing systems contain four key components: a “[1] transmission system. [2] camera/microphone, [3] CODEC (encoder/decoder), and [4] compression/decompression hardware and software ....” More advanced systems commonly used in Courtrooms also include remote controls with “zooming, panning, and tilting functions,” and varying screen options, such as “multiple split-window displays.” Split-window displays present images of several individuals, physically separated by distance, together on one screen. One of the newest and most innovative forms of VCT uses cameras that track a specific type of badge. While wearing these unique badges, Courtroom participants are followed by cameras as they move, thus allowing a more dynamic interaction to take place. As with most technology, each feature is “expected to become more refined and less expensive over time.”
Video
Conferencing and Judicial Administration
What one had not conceived in mind earlier is now possible. The brick and mortar, physical presence and discussions across table are gradually giving way to new things in view of technological development. Video conferencing facility and teleshopping are now playing a prominent role the present day world. Judiciary cannot keep itself away from these changing phenomena. Videoconferencing is not a new technology; it has been used since the 1970s in different places in United States of America. Videoconferencing works like a telephone call, except with the addition of a video image streamed between parties. In a Court setting, videoconferencing may be requested by any party in a case. In its simplest form, the remote party and the party in the Courthouse sit in front of television screens topped with a camera and microphone. The video and audio is then broadcast over telephone lines or a broadband connection. Each viewer will see the opposite party on their respective screen. As the ability to compress and transmit video and audio data increases, the speed and quality of videoconferencing also increases. Early models had audio/video synching issues and low-resolution images. Videoconferencing is the wave of the future. Effective use of this technology is in use to some extent. To begin with the link between jail and Courts were established at selected cities and Court complex.
Preservation
of Evidence
The Court may grant the motion because of exceptional circumstances and in the interest of justice. Depositions are sworn statements made prior to trial, and are an important part of Court records. As a result of their nature, depositions do not enable triers of fact, or judges, to examine live witnesses, as they can in traditional Courtroom settings. However, testimony provided through VCT preserves evidence for trials more effectively than deposition transcripts, by enabling members of the Court to experience real-time facial expressions, body demeanor, and voice inflections. Additionally, VCT offers advantages to participants in international trials, who are limited by the laws of other countries. For example, some states have laws regarding the overseas detention of defendants for significant periods of time. VCT is able to abide by such laws, while simultaneously providing a medium for Courts to interact with, assess the demeanor of, and cross-examine defendants. Many states have started incorporating provisions into their mutual legal assistance treaties (MLAT) which outline the appropriate times to use VCT and address cost division, choice of law rules in regards to Court procedure, and strategies to handle fraud and/or misconduct.
An MLAT is a treaty among states, which allows “for the exchange of evidence and information in criminal and ancillary matters.” For example, the MLAT between the U.S. and the European Union recognizes videoconferencing by stating “the Contracting Parties shall take such measures as may be necessary to enable the use of video transmission technology between each Member State and the United States of America for taking testimony in a proceeding ... of a witness or expert ... to the extent such assistance is not currently available.” This provision illustrates how Courtrooms can evolve to modern standards by accommodating the global economy and recognizing the appreciation other Courts have for the value and potential benefits associated with videoconferencing. In addition to videoconferencing, international Courts have embraced document conferencing, the newest advancement in this area of technology. Document conferencing allows “participants in a videoconference to simultaneously access a document, have it projected on screen, and edit it during the conference.” Revisions to documents are made using “keyboard commands, a mouse, or a light pen.” Each party to a document conference can view revisions as they are being made to the documents. Additionally, each party may use a different color of light pen for revisions, thus decreasing any confusion as a result of multiple users and revisions.
These technological advances allow evidence, such as handwritten letters, to be shown to remote witnesses during trials, to which counsel may point out specificities by making, for example, red stars next to important sentences in the letters. Furthermore, at any time during a document conferencing process, an altered document can be sent to a fax machine at another location. This technology has the potential to greatly affect the outcome of many cases in the future.
Advantages
1. Cost Reduction: VCT has the potential to significantly reduce costs associated with international litigation “by reducing the need to transport inmates to Courtrooms ...,” thereby minimizing security and escape risks and “curtailing additional expenses.” Furthermore, it can expedite judicial proceedings by eliminating much of the travel required for witnesses and experts, and by increasing the number of cases that may be heard by Court officials. A report released by the Federal Judicial Center surveyed fourteen appellate Court judges regarding the use of videoconferencing in the Courtroom.
2. Increased safety in Courthouses: Eliminating unnecessary prisoner movements can reduce crowding and tensions in escort vehicles and cellblocks. This can improve safely inside correctional institutions and reduce the chances for contraband entering.
3. Improved cost effectiveness of services. Video conferencing can help reduce or avoid some expenditure. Correctional centers can reduce time spent logging prisoners and their personal effects in and out. Virtual appearances can reduce the frequency of, and costs associated with, high security escorts, which can involve additional deputy sheriffs and police emergency response teams. Regular video conferencing links for inmate appearances should lessen the need to expand cellblocks or vehicle fleet. Witness appearances can occur at reduced cost and with greater certainty.
4. Improved access to justice services. Avoiding travel for witnesses, the party, co-counsel or judges can reduce the costs of proceedings. Conducting a scheduled videoconference can eliminate or reduce obstacles to case completion and provide better access for protected and vulnerable witnesses.
Disadvantages and Foreseeable Problems
Confrontation Clause: The most pervasive issue regarding videoconferencing in legal cases is whether such technology violates the Confrontation Clause. The Confrontation Clause states, “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ....” In general, Courts read the Confrontation Clause as the right of the accused to confront a witness in person. In the past, defendants have reasoned that it is much more “difficult for a witness to lie directly to the defendant's face” than during an ex parte examination of the witness, which occurs outside of the defendant's presence. Proponents of this limited reading frequently argue that physical confrontation with witnesses gives the defense the ability to assess their credibility. Courts have always recognized the significance of live witness testimony in the Courtroom, as well as the need for cross-examination by the defense “to assess the witness's credibility ,...” The Court's goal is to uncover the truth, which is furthered by both in-person testimony and cross-examination.
The use of two-way VCT gives defendants live face-to-face virtual confrontation, which further provides the opportunity to cross-examine witnesses and have them respond in a real time manner. While this advancement in technology could be enough to substantially satisfy the second prong of the Crawford test. U.S. Courts remain divided on whether two-way videoconferencing violates the Confrontation Clause.
Lack of Necessary Regulation: Laws which regulate perjury and contempt, and ensure that testimony is reliable and given under oath, are necessary although absent, in VCT usage among Courts. For instance, if a witness resides in Morocco, but his testimony is needed at a trial in the U.S., the witness could use videoconferencing as a means to provide live testimony during the trial. However, no laws exist concerning a situation where the witness commits perjury while giving testimony under oath from Morocco. This hypothetical raises several questions, such as whether both the U.S. and Morocco criminalize perjury and if so, whether this amounts to perjury in either country. Furthermore, if it simultaneously amounts to perjury in both countries, it is undecided as to which country would have jurisdiction over the individual. Although no customary international laws establish the procedure to follow in such situations, the territoriality principle, a principle establishing a country's jurisdiction to prosecute a defendant if his crime was committed within the borders of that country, would likely be a dispositive factor giving Morocco primary jurisdiction over the witness. In the event that Morocco fails to prosecute the witness, the U.S. would then have the ability to prosecute.
Additionally, an agreement, such as a Mutual Legal Assistance Treaty, established prior to any VCT use, could prevent potential double liability problems by establishing guidelines beforehand. Contrary to perjury, contempt is the “refusal by a witness to answer a question...unless that refusal is protected by some privilege or other legal justification.” Courts distinguish between direct contempt, which is committed in the presence of Courts, and indirect contempt, which is committed outside of Courts. A witness's refusal to answer a question by video-link technology during trial could constitute direct contempt, due to a “virtual presence” in a Court. Alternatively, such actions could be categorized as indirect contempt due to the absence of physical presence at trial.
Costs: The costs associated with videoconferencing equipment remain a significant consideration. To fit a large Courtroom with high quality VCT equipment costs very high. As with most technology, prices vary depending on the number of installations, choice of network provider, and other optional features. Aside from the original fixed costs associated with purchasing and installing the videoconference equipment, other recmerging costs include network access and usage, maintenance, and user training. According to a working document of the Commission of the European Communities, a report of the European Union Member States revealed that “most” Member States have the equipment necessary for videoconferencing. Thus, the cost of startup VCT equipment would be much lower for such states, decreasing the overall price of creating a VCT compatible Courtroom.
Legal Education and ICT
Without proper education the divinity in a person will not come out. Education is a process of unearthing the hidden features in a person. Education is a multifaceted aspect. It is not mere reading or writing or viewing a computer. It is a process of personality building. Education is regarded as a basic infrastructure for an all-round development of a country. Indeed, it is integrally linked with the development process. In the post-Independence era, the education policy of the Government of Pakistan has been as framed as would provide free and compulsory education to all children at least up to the elementary stage. Keeping pace with the fast-growing field of Information Technology (IT), where the sky seems to be the limit so far as employment is concerned, and a law student cannot neglect the information technology. Imparting legal education is one of the noblest professions. The legal education does not mean to study the texts of law in its bare for, but is involves something more, that is to have economic social and political aspects.
The expose of truth is a thing which comes out from different types of information a person has gathered. The information gathered at different point of time if is used at appropriate time in a required manner then it would become a knowledge with wisdom. The legal education is not only mean to generate good lawyers but it is intended to have proper citizens for the future Nation. They shall have concern regarding the human values and social requirement. The ICT helps in acquiring knowledge and interact with the needy people by the students, The ICT makes a person not only with heal but would make him a person with heart and even vice-versa. To have inter-disciplinary studies the ICT plays a positive role. The students at law school environment would not restrict them to a bookish knowledge but would enable them to have the knowledge from all walks of life. The digital library, digital archives, usage of information technology with care and caution if future and to do research the ICT. The intervention of ICT has really made the globe a village. What could not have been even imagined could now be seen without much difficulty in these days of technology and technological changes?
The students, teachers and persons concerned with the study of any system of knowledge cannot remain in an isolated world. This applies more particularly with reference to the students prosecuting legal education. The legal education brings about the personalities as administrators, businessmen, lawyers, judges, and even legislators. To cater the need of one and all in a developing society the study should be focused with the background of information technology.
The prospects are bright both for teaching and research in the application of computers. Interdisciplinary studies in the area of law and computers would provide a meaningful interaction between the legal academics and technologists. Computers can be best used in two ways, to assist the legal profession.
Bar
and its Role
The judicial system of a country would be incomplete if there is no participation of Bar. Bench and Bar like two wheels of a chariot, The Bar has a role not only to provide personnel for future judiciary but also have to defend the interests of their clients. When computerization was started the Bar members were much relented to use the technology but now the things are changing gradually and are now coming out with an openness that ICT is to be considered as a part of life. In deed how can we think of e-Courts if advocates are not ready to adopt, cause-list provided in electronic form and object to the stopping of supply of cause list in printed form. Center for Promoting Ideas, Some of the advocate have replaced the practice of using manual typewriter and on the other hand are using the computers to perform the work as was done by the said typewriters. The office of each of the advocate should be computerized and the advocate to become computer friendly to make use of the systems. Now they are able to use the technology to have cause list and to know the display board position. This is only at a level of rudimentary nature. Of course the use of lap tops, I-Pads, e-books, and other devises have brought in a concept of having mobile libraries by using the digital media, and there by it has reduced the burden of ecological imbalance. But this is not done on a large scale and needs to be attended to, Bar Council of respective State, and if need be Bar associations, Advocates Academy, should give practical effective training to make the members of the Bar to respond in a positive way. Reorientation programs should be of an effective nature.
Conclusion:
As globalization expands, technological innovations will continue to emerge and affect the way in which Court proceedings are conducted in Court system. Videoconferencing has the ability to grant witnesses protection far greater than that provided by heightened security systems or even security guards. VCT allows witnesses to give testimony in a real time manner in front of judges, the prosecution, and defense without having to physically travel to the actual trial location. The use of VCT may persuade witnesses to testify in circumstances where they normally would be unable, due to safety and health concerns, or unwillingness to travel. Specifically, VCT can protect minors from being forced to testify in front of defendants at trial, and prevent any subsequent emotional distress. Transcripts of depositions are slowly becoming tools of the past, and videoconferences are quickly becoming a global phenomenon. In the past, one of the most significant concerns with video-link testimony was the inability to share documents with individuals several hundreds or even thousands of miles away. However, the emergence of document conferencing enables all Court participants to view the same documents on screens in different locations. Overall, video-link technology has the potential to overcome impediments currently faced by Courts and enable Courtrooms to evolve as global entities, along with the rest of modern society. VCT is reasonably simple to use and allows for more effective prosecution of criminals by linking the criminal justice system in one country to witnesses located in another. Additionally, witnesses are afforded greater protections, ultimately leading to more reliable testimonies. Thus, VCT promotes the ultimate goal of the judiciary, the pursuit of truth, and serves as a valuable asset to both domestic and international legal systems.
References
Egido, C. (1988). Videoconferencing as a technology to support group work; A review of its failures. Prowdings of the Confine on com@uter SyPaortGd Co-Operative Work, 13-24.
Cohen, K. M. (1982). Speaker interaction: Video teleconferences versus face-to-face meetings, 189- 199. Madison: University of Wisconsin.
DIAMOND
LANZARA G.F. & PATRIOTTA G., «Technology and the Courtroom: An Inquiry into Knowledge Making in Organizations», Journal of Management Studies, 38, 7. 2001, p.948-971.
LASSITER G. Daniel (et. al.), 2009, “Evidence of the Camera Perspective Bias in Authentic Videotaped Interrogations: Implications for Emerging Reform in the Criminal Justice System'“, 14, Legal & Criminological Psychology, 157.
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