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Courts & Justice

Access, constitutional challenges plague virtual trials as courts develop in-person/virtual mix

Zach Warren  Manager for Enterprise Content for Technology & Innovation / Thomson Reuters Institute

· 6 minute read

Zach Warren  Manager for Enterprise Content for Technology & Innovation / Thomson Reuters Institute

· 6 minute read

Looking into our recent "2023 State of the Courts Report", we see how virtual trials became commonplace during the pandemic, but that may be changing

During the pandemic, virtual hearings provided a panacea to court systems that were facing immense backlogs as a result of public safety closures. As many of those courts open back up, however, courts’ usage of virtual hearings has started to taper off.

While 81% of state and county/municipal courts professionals say their courts are still holding some form of virtual hearings, those numbers are down, according to the Thomson Reuters Institute’s recent 2023 State of the Courts Report. Compared to one year earlier, in which 89% reported using virtual hearings, resulting in an 8-percentage-point drop. That drop is even more steep on the county/municipal court level, resulting in a 12-percentage-point drop over the past year.

Some access-to-justice advocates worry how a shift away from virtual hearings may impact efforts to improve court access to all citizens, particularly as those hearings have been touted as a potential path to opening up availability for underrepresented populations. As the State of the Courts Report suggests, however, the future may ultimately be a mix of in-person and virtual hearings. This, of course, will result in an increased focus on how to truly open up virtual hearings to all, as both constitutional and technology access barriers remain to full acceptance of such hearings.

The mix of the future

The move to go back in-person hearings doesn’t surprise retired Judge Ronald Hedges. Following a 20-plus year career as a Magistrate Judge in U.S. District Court for the District of New Jersey, Judge Hedges now is principal of his own firm, Ronald J. Hedges LLC, and chairs the American Bar Association (ABA) judicial division’s court technology committee. In conversations with courts around the country, Hedges says he has found a large appetite to start going in-person once again.

However, what he ultimately sees as the end result of the return to courtrooms is not fully in-person or remote — the answer may lie somewhere in between. “You’re going to be seeing a mix of proceedings,” he explained. “You’re going to be seeing live proceedings, there will still be some remote proceedings, and there are also going to be hybrid proceedings.”

Judge Ronald J. Hedges

Hedges points to potential constitutional issues that could come out of virtual jury trials, such as effective cross examination and 6th Amendment issues like the right to confrontation in criminal cases. However,  there are other hearings throughout a matter that could lend themselves more towards virtual proceedings, such as initial appearances in a criminal case, which would then make it unnecessary to transport a defendant to the courthouse for a short appearance.

Indeed, in the State of the Courts Report, litigants’ first or initial appearances and motion hearings were the top hearing types being conducted virtually for criminal cases, while motion hearings were the top hearing type conducted virtually for civil cases.

This tracks, Hedges notes, as a version of virtual hearings were already in use for some types of early proceedings even before the pandemic. Virtual hearings are primarily used as a matter of convenience, while still affording due rights. “Before I left the bench, we started doing telephone conferences” for multi-district litigation, Judge Hedges says. “Because frankly, it didn’t make much sense to me to make 30 lawyers or so truck into Newark, N.J., from across the country for a half-hour program.”

The lingering tech access issue

Many believe that a move towards more of these virtual hearings may help close the access to justice gap. The State of the Courts Report found that more than three-quarters of respondents (76%) believed virtual hearings would improve access to justice, an increase from 55% just one year prior.

Hedges acknowledges this change, but also reserved some skepticism. “There is a caveat to this and that is technology, and whether or not courts still have the technology to do what we were talking about.”

The report also reflected this worry. Access for people with lower-levels of digital literacy ranked as the top challenge for those conducting and participating in virtual hearings, with 42% of court professionals ranking it as a top challenge. Access to technical support (34%), access to broadband networks (26%), and access to technology needed to participate (26%) also were tanked within the top five challenges, the report shows.

For Hedges, these challenges need to be addressed before virtual hearings can truly take hold. “If courts are going to allow remote proceedings, then I think there has to be something done to ensure that every population has each equal access to that,” he says.

One possible solution that’s been discussed is giving courts budget increases to allow them to supply technology to parties so they will be able to participate. But Hedges is skeptical of the economic realities of attempting that method. “It’s like everything else when you’re talking about resources like this, it’s where’s the money going to come from?” he explained. “If someone is in a rural area… and they don’t have reliable broadband access or 5G access or the like, I don’t see them being given computers so that they can access online court proceedings. That’s just not going to happen.”

Until these constitutional issues are resolved, there may be an upper limit on the effectiveness of virtual hearings, as courts continue to use them for more administrative and procedural proceedings rather than actual trials. There are some lessons that courts have taken from the pandemic, with what type of proceedings will work virtually chief among them, says Hedges.

“At the end of the day, people saw all of this as being something we had to do at the time, because we didn’t have another way to get trials done,” Hedges explains. “And now there’s a big move to do trials, but I really don’t see much of an interest anywhere in having remote trials. I just don’t — and I think that’s unfortunate. But I appreciate why it’s done, and I can certainly understand that there just may not be an opportunity to do as much remote anymore.”

For further insight, you can download a full copy of the 2023 State of the Courts Report, here.

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