Beena I. Ahmad & Julia Elhai

Volume 29.1 (download PDF)

Abstract

The use of videoconferencing as a substitute for in-person appearances began in immigration proceedings in the mid-1990s. During the height of the COVID-19 pandemic, its use expanded significantly in the criminal and civil contexts, when both state and federal courts invested heavily in the technology needed to conduct proceedings remotely. As we have exited the pandemic, courts have eagerly embraced virtual proceedings to reduce their overburdened dockets. Drawing from our experiences in federal and state court, we argue that judges should not be granted discretion to proceed by videoconferencing.

We posit that there is too great a danger that the subjects of criminal and civil proceedings where liberty is at stake will be deprived of due process, especially where the proceedings hinge on determinations of credibility and mental state. Legal guardrails such as requirements that a litigant consent to the virtual appearance or that judges limit the use of videoconferencing to certain types of extraordinary cases have not prevented courts from expanding its use to inappropriate contexts. Though it has been decades since videoconferencing technology was initially introduced, it remains a poor substitute for in-person appearances and our clients have been unable to meaningfully access counsel or participate in the proceedings. Videoconferencing also raises procedural justice concerns. Our clients have expressed difficulty in accepting the court’s findings about their remorse or capacity when they do not believe that the judge could actually see them. It also further erodes any confidence that our society might have in courts as a site of justice. Any efficiency comes at the cost of humanity, where the decision-maker is removed from the subject of their decision and does not have to face the weight of their decision on a fellow human.

Thus, we conclude that where serious liberty interests are at stake, courts should not be afforded the discretion to proceed virtually.