As we continue to celebrate our firm’s 20 years of being in practice and forecast the next 20 years, we like to reflect on the changes we’ve seen in the legal system, and how those changes will impact the future. An area of change that we find quite interesting is the court system’s adaptation of new technology. One in particular, video communication technology, has been used in legal settings for years, but the onset of streaming media may forever change the way attorneys, juries, and witnesses interact in the courtroom.
Using video testimony: then and now
Advances in technology are changing the way witness testimony is gathered and heard by juries. Twenty years ago, if a witness couldn’t physically attend a trial, attorneys would have to travel to their location to capture a written transcript of their testimony. In court, someone would physically read the questions and answers back to the jury. The process lacked the value of an in-person question and answer discussion. If an out-of-state witness couldn’t or wouldn’t come to trial (in Ohio, the state court’s power to compel a witness to come to trial only extends to the boundaries of the state), this was the only way to capture their testimony. Overall, it was an artificial and boring process.
Somewhere in the course of our practice we began videotaping witness testimony. Initially, it was very expensive, and required clunky camcorders and specialized videographers. The testimony would be recorded, and the video tape would later be played back to the jury. It often felt like watching a very dull movie. If the video testimony was played after lunch, the jury would often become tired and lose focus, and sometimes even fall asleep. Sometimes the judge would even call a short recess to get the jurors to walk around and wake up. This method made it difficult to determine if the testimony was actually being heard and understood by the jury.
Live streaming: a welcome, and useful, alternative
Over the last few years, video technology has evolved, and now live streaming testimony is available in the courtroom. The onset of video conferencing with providers like Skype and FaceTime has become a great way to capture testimony in real time, especially if the person testifying is in another country or a great distance away.
Skype is a valuable legal tool because it’s the next best thing to actually looking the witness in the eye as they deliver their testimony. It allows for a kind of human interaction that is almost as compelling as testimony given live in the courtroom. Judges have to approve the video streaming process, of course, but many of them have embraced this technology as an alternative to traditional written or recorded testimony.
There are multiple benefits of being able to interact in real time via live video streaming; first of which is the ability to cross-examine the witness—allowing the jury a greater depth of perspective into the details of the case. Additionally, streaming allows the judge to make rulings on the spot about the validity of a question, or even caution a witness that is trying to dodge a question—two key factors that are lost with remote testimony.
From a juror’s standpoint, the younger generations will be accustomed to and have experience with this technology already, so this change won’t require much of an adjustment for them. Older jurors will likely welcome the change of pace and will no longer be nodding off like they did in the days of transcripts and recorded video testimony.
Practical concerns
Benefits aside, there is just no substitute for the live experience. When testimony is given live and in-person, we can pick up on minute shifts that signal whether the witness is being truthful. In person there are subtle body language hints and almost imperceptible clues that provide more insight into what a witness may actually be thinking. These subtleties can go undetected in video communication.
Also, there is still a question as to what might be happening off camera—it’s possible that someone else in the room may be influencing the witness and their testimony. There’s no real way to control the outside influences that might be happening in a location that isn’t a courtroom.
Another major concern is the aura of the courtroom experience and the effect it has on the witness—the pressure of sitting in the witness chair with jurors and the judge watching—will be lost. On the flip side, the witness and the quality of their testimony might benefit from a lack of anxiety generated by the traditional courtroom trial experience.
Live video streaming simply doesn’t remedy all of the complications brought on by long distance testimony. There are significant challenges concerning the display of exhibits. How do you display a piece of evidence or a chart so the remote witness and the in-person jury can see it at the same time? Another concern is that critical elements like size and distance are not easily communicated in video.
Overall, we think Skype is preferable to reading someone’s testimony transcript or putting a video on a disc and pressing play. If taken to the extreme though, with all parties participating remotely, the integrity of the trial process could potentially suffer. It would completely change the traditional court system as we know it.
Embracing advances with caution
There are some logistical challenges, but it’s likely that video conferencing will be used in the courtroom more and more frequently in the future. That said, we believe erring on the side of caution with any new technology is wise. Assuming the judge agrees to it, Skype could be incredibly useful when you have a remote witness who is vital to the case, but cannot travel. But we’d hate to see Skype overused in the courtroom, becoming a convenience and not a necessity. It will be very interesting to see how this technology continues to impact us in the future.
*Names in this article have been changed to protect our client’s privacy.
The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.
