NACDL - National Association of Criminal Defense Lawyers
Virtual Justice? A National Study Analyzing the Transition to Remote Criminal Court
The Stanford Criminal Justice Center and Stanford Law School partnered with the National Association of Criminal Defense Lawyers (NACDL) to survey and recruit participants for this report on virtual criminal proceedings.
The Stanford Criminal Justice Center published a report examining the staying power of the “virtual” or “remote” criminal court: the use of teleconferencing and videoconferencing in lieu of in-person hearings in criminal cases that were largely eliminated due to the COVID-19 pandemic. Research includes both qualitative interviews with close to 60 judges, prosecutors, defense attorneys, and court administrators in three jurisdictions (Miami-Dade County, Milwaukee County, and the Northeast Judicial District of North Dakota) and a quantitative analysis of a national survey completed by 240 defense attorneys who practice in the state court system. Together, the quantitative and qualitative findings provide one of the most thorough portraits of virtual criminal proceedings to date and show that aspects of virtual court compromised access to justice.
One of the main takeaways from the report pertained to attorney-client communication being impaired by virtual technology. A majority of interviewees also expressed concerns about access to phones, internet connections, computers, private spaces, camera and smartphone applications. Another finding of the study was that most respondents believe that contested hearings, especially trials, should not be conducted virtually.
Interviewees expressed mixed feelings about the efficiency gains of virtual proceedings, noting multitasking opportunities but mourning the loss of productive informal conversations in courthouse hallways. However, some felt that minor hearings like status conferences and calendaring should remain virtual post-pandemic given these efficiencies accrued by having these proceedings conducted remotely. A handful of interviewees explicitly noted that efficiencies should not be the focus, at least not at the expense of the administration of justice.
Most of the interviewees felt that virtual technology results in an intangible loss, fewer nonverbal cues, a reduced ability to communicate, or a dampening of emotional connections. As a consequence, several interviewees expressed concerns about a lack of empathy for the defendant, which they worried would translate into harsher sentences and lower trust in the judiciary. Interviewees from the three jurisdictions also conjectured that the use of virtual technology could trigger constitutional concerns – specifically issues related to the Confrontation Clause (the right to confront a witness) – that the courts will eventually need to decide.
