Judicial Notebook

Two recent decisions that considered the use of video conferencing (VC) for courtroom procedures are suggestive of an increasing reliance on the virtual presence of parties to litigation in both civil and criminal trials. In decisions summarized below, the courts' speculation about the consequences of a virtual versus actual presence of parties at the trial reveals the need for thoughtful research.

Saving time and money

On the civil side, the court in Edwards v. Logan, 38 F.Supp.2d 463 (W.D. Va. 1999), ordered that the entire trial be conducted via VC. Edwards, a prisoner in a New Mexico state prison, brought action against Virginia state prison officials for excessive force while he was held there. Defendants requested that the costs of transporting the plaintiff from New Mexico to Virginia for trial be borne by the plaintiff, who responded that he had no funds to cover the expenses. He requested that the state be directed to produce him at its expense. The judge directed the parties to explore the use of interactive video, which was supported by the defendants but not responded to by the plaintiff.

In his decision, the judge noted the advantages of VC, such as savings in time and money, as well as enhanced security when prisoner moves are involved. However, he also pointed out that the Federal Rules are unclear on whether the courts could use VC for an entire trial. Among the factors the judge considered in deciding whether VC is an acceptable alternative to actual presence of the parties were ones that merit research attention: the ability to observe a participant's demeanor and the attorney's ability to ascertain facts during direct and cross-examination of a witness in an "emotionally acute" way.

Although the judge in Edwards does not mention it, the Advisory Committee Notes for the Federal Rules of Civil Procedure also assert that live testimony is important because the trial ceremony and the presence of fact finders may exert a powerful force for truth telling. Ultimately, while noting that VC might not be appropriate in more complicated cases, the judge ordered that this case be conducted via VC.

Recent decisions reveal that the courts are also attracted to the savings in time and cost afforded by the virtual rather than literal presence of parties to litigation in criminal actions. Movement toward VC in criminal trials is slowed by the Federal Rules of Criminal Procedure and constitutional requirements that a defendant be allowed to be present at every stage of prosecution and be entitled to confront witnesses.

Still, VC has been upheld as a means of taking witness testimony under exceptional circumstances (such as taking the testimony of child witnesses and, in one case, taking the testimony of President Clinton). While some courts have interpreted "presence" to include a virtual one, few exceptions have been granted to the right to confront a witness. However, the constitutional right to confront witnesses is not present during the sentencing phase of the trial.

'A picture, not a life'

In U.S. v. Navarro, 169 F.3d 228 (5th Cir. 1999), the court reversed a trial court's decision to allow sentencing of a criminal defendant to proceed by VC. In a split decision, the court, strictly applying Federal Rules of Criminal Procedure, rejected VC in the sentencing phase of a criminal trial. Speculation in the decision about the differences between a virtual and a physical presence highlights other important questions for researchers' attention: "Sentencing a defendant by video conferencing creates the risk of a disconnect that can occur because the immediacy of a living person is lost.... In the most important affairs of life, people approach each other in person, and television is no substitute for direct personal contact. Video tape is still a picture, not a life."

"There is little reason for the public to cheer the results of these applications," noted scholar Paul D. Carrington, as quoted in Columbia Law Review (October 1998) commenting on the influence of digital technologies on civil litigation. "Lawyers and judges have easier access to more legal authorities, and triers of fact are sometimes dazzled by multi-media presentations. But there is no evidence that these achievements have resulted in more accurate discernment of fact, more faithful enforcement of law, or the reduction of cost or delay."

What he does not say is that there is also no clear evidence that these achievements have not improved the administration of justice. A cursory search of the Social Science Citation Index and a Lexis-Nexis search of law journals reveal that there is little, if any, empirical research examining the consequences of virtual rather than physical presence of parties for such procedures as depositions, testimony or sentencing.

While there is a growing body of research on the effects of VC versus live presence in other contexts, notably education, the differences in these settings suggest important limits to generalizability.

"Judicial notebook" is an effort by the Courtwatch Committee of APA's Div. 9, the Society for the Psychological Study of Social Issues, to encourage involvement by psychologists in judicial decision-making.