Online trials have helped mitigate the pandemic's impact, but much is lost in two dimensions
From as back as I can remember, I wanted to be a criminal defence lawyer. Being trusted to lead an accused person into trial and be their voice against allegations made by the state is my ultimate motivation. Of course, much of that motivation manifests in the preparation phase. Like an athlete training for an event, the spectators are never privy to the magnitude of work involved in trial prep. And like that same athlete, the trial lawyer is assessed solely by how they perform on “game day.” For the trial lawyer, “game day” is the trial. The arena of the courtroom is where the client can truly appreciate the importance of having counsel. And it is there where the lawyer gets to harvest the fruits of their labour.
Over the past year, I have found myself wondering about the impact that the physical courtroom has on a trial. Does changing the nature of that arena really matter? The answer is unequivocally, yes. Trite as it may sound, the trial is about so much more than the strict application of the law to the evidence. People’s lives are impacted. Regular, everyday people are drawn into a process that very few will ever truly understand. For the accused, the consequences can be life altering. For the witnesses, the process can be disruptive, if not gruelling. For our democratic society, a trial is decidedly our best and fairest method of conflict resolution.
It is the physical layout of the courtroom and the positions of the parties that bear the traditions that reflect the solemnity of the proceedings. In a very literal sense, the lawyer stands shoulder to shoulder with their client when facing the elevated and powerful judge. The lawyer stands between their client and the prosecutor who is working diligently to gain a conviction. The lawyer rises to their feet to confront their client’s accusers while everyone else remains seated. Finally, the lawyer stands alone to address the jury as their client’s last line of defence. Quite literally, the lawyer stands between the individual and the heavy hand of the state.
All of this is lost in a virtual trial [hereinafter, “the Zoom trial”].
I appreciate the need for technological advancement in the justice system. In some cases, the Zoom platform is a welcome breath of efficiency. No longer do defence counsel have to spend hours in their cars driving to courthouses, only to find themselves waiting even longer to speak to a simple adjournment. The reduction in cost alone may easily be seen to equate to better access to justice. For preliminary hearings, motions, appeals, or even for technical charges like some impaired driving trials, the use of the Zoom platform may become a mainstay.
But when the consequences to the client become more serious, such as a lengthy period of incarceration, the Zoom trial falls short. The solemnity is gone.
Over the course of the pandemic, I have conducted Zoom trials. Despite best efforts by the court, the Crown and the defence, the Zoom trial lacks the formality of the courtroom. On three separate occasions, various accused persons have fallen asleep in the middle of the evidence. Witnesses have testified from the comfort of their bedrooms or backyards, while being interrupted by children or pets. Internet signals have failed. Judicial desk phones have rung mid-evidence. Exhibits have been too large to be displayed on the platform without freezing. Hot-mics have been a problem. Coffee mugs, Coca-cola cans, and e-cigarettes have all reared their ugly heads. And, of course, there’s the universal confusion of the “mute/unmute” button, which inevitably results in someone saying “you’re on mute” long after the party started speaking.
In a trial with significant consequences to an accused, these issues can create a sense of irreverence, which shouldn’t, but may impact on counsel’s ability to effectively advocate for their client.
As lawyers, we are trained to do our job in the courtroom. Learning from counsel before us, we pick up tips about courtroom conduct and etiquette. Things like where to place the podium, and the importance of posture and eye contact. We learn to read cues from the judge when questioning witnesses or making submissions. On Zoom, counsel has no idea where the judge is looking: are they looking at the witness, the lawyer, the accused, or playing solitaire? Likewise, the witness cannot feel the formalities of testifying while facing the accused in a courtroom. Even the interrogating lawyer feels out of place. No longer in the courtroom surrounded by the familiar pillars of the criminal trial, the lawyer must try to find their stride through a computer screen. Lastly, in a courtroom, the accused can appreciate the seriousness of the proceeding simply by their position in the room: next to counsel before a judge. In the Zoom trial, the accused’s position is meaningless, as they watch justice unfold from their bed, living room, or in the best of circumstances, counsel’s office.
The courtroom atmosphere lends itself to being engaged in the proceedings. In court, the accused who has an insight or question may write a note or whisper something useful to counsel in the moment. This connection is lost in the Zoom trial (excuse the pun). It is two dimensional in every sense. Despite the essential role it has played in mitigating the impact of the pandemic on the justice system, the Zoom trial cannot replicate the ceremony of the trial in a courtroom. As such, it runs the risk of altering the dynamics of the proceedings, which may have a detrimental effect on the parties involved.
Maybe it is the concept of Zoom fatigue that has affected my view of the Zoom trial. Maybe it’s my own insecurity, feeling that I am not as effective an advocate in a Zoom trial as I am in person. Or maybe it is the overall effect of the pandemic that has created a nostalgia for getting back to where we once belonged — for this criminal defence lawyer, that place is the courtroom.