Angela Chang1Angela Chang is a staff member of The University of Chicago Law Review and a J.D. Candidate in the University of Chicago Law School Class of 2022. She received her B.A. from Williams College in 2017. She would like to thank Deb Malamud for her invaluable input and guidance.
As of November 9, 2020, the United States has had over 10 million confirmed cases of COVID-19 and at least 240,000 deaths. Having paused all jury trials back in March, court systems across the country are still scrambling to figure out how to resume in-person proceedings safely. In the meantime, many courts seem increasingly willing to utilize teleconferencing and videoconferencing technology to conduct hearings, depositions, and even entire trials. In this Essay, I apply available empirical research to explore the problems with this increased use of video technology, the extent to which courts have failed to recognize those problems, and the potential legal challenges that may be brought as a result. I conclude that, until more research is done to evaluate the impact of modern videoconferencing in the legal context, courts and counsel should be wary of allowing cases to proceed remotely. To the extent that some cases must move forward remotely, all parties, attorneys, judges, and jurors should be made aware of the empirical evidence showing potential biases and should take proactive steps to minimize their influence where possible.
I. Legal Bases for Allowing Remote Court Proceedings
Motions to allow witnesses to testify remotely in civil cases—both before and after the start of the pandemic—have pointed to Federal Rules of Civil Procedure 30(b)(4) and 43, as well as case law, for support. FRCP 30(b)(4) states that “[t]he parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means.” FRCP 43 states that judges may allow witnesses to testify by phone or video call, “[f]or good cause in compelling circumstances and with appropriate safeguards.” Perhaps unsurprisingly, courts so far have universally found that the health risks posed by in-person court proceedings during the COVID-19 pandemic constitute “good cause in compelling circumstances” sufficient to permit video testimony, even over the objections of at least one of the parties.
Moreover, although they acknowledge that “conducting a trial by videoconference is certainly not the same as conducting a trial” in person, courts have held that any concerns about the use of video-conferencing are outweighed by the “value of conducting the trial in an expeditious manner.” In the Eastern District of New York, for example, a judge has emphasized that “the occasional technical glitch . . . can be addressed by the Court and parties if or when it occurs,” and that the parties will be “in the same position” with regard to any impairment of ability to assess witness credibility. Similarly, a court in the Northern District of Illinois has pointed out that the face mask mandate in Illinois “eliminate[d] many of the advantages of observing [witnesses] at an in-person deposition.” Conducting depositions by videoconference rather than in person, the court explained, might “enhance[ ]” the parties’ “ability to assess witness credibility . . . because masks would not be necessary and counsel will be able to observe the [witnesses’] facial expressions and non-verbal responses during their testimony.”
II. Empirical Research: The Problems of Videoconferencing
A. Technological Difficulties and the Misattribution of Frustration
Months into the pandemic, most of us have become familiar with the technological challenges of working remotely: unstable internet connections, microphone and video malfunctions, and so on. The court system so far has been no different. Technological glitches happen, and research suggests that they may subconsciously impact judges’ or jurors’ perceptions of witnesses who testify remotely. For example, one study found that participants misattributed technical impairments, which caused transmission delays in telephone or conferencing systems, to their conversation partners’ personalities. Participants in that study perceived their conversation partners as less friendly, less active, and less cheerful when there were transmission delays introduced into the teleconferencing system, compared to conversations without delays.2See Katrin Schoenenberg, Alexander Raake & Judith Koeppe, Why Are You So Slow? — Misattribution of Transmission Delay to Attributes of the Conversation Partner at the Far-End, 72 Int’l. J. Human-Computer Studies 477 (2014).
Another related concept is displaced aggression, which has been well-documented in the psychological literature.3See Amy Marcus-Newhall, William C. Pedersen, Mike Carlson & Norman Miller, Displaced Aggression Is Alive and Well: A Meta-Analytic Review, 78 J. Personality & Social Psych. 670, 670 (2000) (confirming a robust effect in the experimental literature). The classic example of displaced aggression is the man who is reprimanded by his boss, but because he cannot retaliate for fear of losing his job, he returns home hours later and takes his anger out on his dog instead.4See id. This effect is amplified if the target in some way provokes the already frustrated actor.5See Norman Miller, William C. Pedersen, Mitchell Earleywine & Vicki E. Pollock, A Theoretical Model of Triggered Displaced Aggression, 7 Personality & Soc. Psych. Rev. 75, 75–76 (2003). See also Eduardo A. Vasquez, Thomas F. Denson, William C. Pederson, Douglas M. Stenstrom & Norman Miller, The Moderating Effect of Trigger Intensity on Triggered Displaced Aggression, 41 J. Exp. Soc. Psych. 61 (2005). To continue with the kicking-the-dog analogy, the man’s anger would be even greater if, upon returning home, the dog greeted him by jumping on him; “in the latter case, the potentially irritating aspects of [the dog] having jumped on his business suit [would be] sufficient to elicit an aggressive response.”6Miller, Pedersen, Earleywine & Pollock, 7 Personality & Soc. Psych. Rev. at 76. Notably, the aggressive response is disproportionate to the triggering event and likely would not have occurred at all without the previous provocation. This augmenting effect is known as triggered displaced aggression.
In the current context, technological difficulties may cause judges or jurors—improperly and subconsciously—to turn their frustration with technology against an attorney or witness who, through no fault of their own, experiences a glitch during a court proceeding. An attorney or witness might inadvertently further irritate a frustrated judge, causing that judge to unleash a disproportionate level of anger against that unwitting attorney or witness. An even greater concern is that the judge or juror would turn their frustration against a criminal defendant, whose conviction or sentence would then be improperly and unfairly influenced. Furthermore, the risk of displaced aggression or triggered displaced aggression happening increases with lengthier proceedings—such as multi-day remote trials—where there is ample opportunity for technological issues as well as minor provocations to occur.
Another particularly alarming study shows that rumination—reflecting on the previously experienced provocation—enhances the displaced aggression effect and thus can negatively impact sentencing decisions.7See Eduardo A. Vasquez, Vanessa O. Bartsch, William C. Pedersen & Norman Miller, The Impact of Aggressive Priming, Rumination, and Frustration on Prison Sentencing, 33 Aggressive Behavior 477 (2007). In that study, participants acting as mock jurors watched a video of a violent crime, and then wrote about the crime or unrelated topics. Participants were then asked to play the video again, some with an intentionally broken VCR to evoke frustration. The authors found an interaction effect between the rumination (writing about the crime) and frustration (having a broken VCR). That is, participants who both spent time thinking about the crime and experienced the frustration of trying to use a broken VCR recommended higher prison terms than any other group in the study. Although more research is needed to test these effects in the context of Zoom trials, the results of this study suggest that thinking about violence or trauma during a trial—while trying to determine the proper verdict, for instance—would compound frustration with technology, making judges or jurors more likely to unfairly impose harsher sentences on defendants.
B. Zoom Fatigue
As life moved online in response to the pandemic, people began to notice that a day of videoconference meetings left them feeling more exhausted, and more quickly. This phenomenon, dubbed Zoom fatigue, can be explained as the combination of several factors: prolonged periods of eye contact, staring at close-up faces, and intense focus; incessant self-monitoring of our own faces; efforts to make up for the lack of nonverbal cues; anxiety about potential interruptions; and frustration with technological difficulties.8See also Jeremy Bailenson, Why Zoom Meetings Can Exhaust Us: Being Gazed at By Giant Heads Can Take a Mental Toll, Wall St. J. (Apr. 3, 2020). Although there are ways to potentially counteract these effects, the extent to which courts can adopt such mitigative practices is unclear. Zoom fatigue will likely impede judges’ and jurors’ ability to stay focused and attorneys’ ability to present the best case for their clients.
Moreover, the negative effects of Zoom fatigue might also be compounded with the boredom that people have felt while stuck in quarantine. According to one theory, people are bored when they fail to find meaning in a task and are unable to pay attention to it. Additionally, “[t]he more stress you experience, the more at risk you are for losing your ability to focus and find meaning.” With the looming stresses of pandemic uncertainty, and the inability to engage in person in the courtroom, judges and jurors are likely to struggle even more to pay attention during remote court proceedings.
C. Not the Same: Comparing Video and In-Person Proceedings
Empirical research shows that “people process information differently when it is delivered via videoconference rather than when it is delivered face-to-face.”9See Carlos Ferran & Stephanie Watts, Videoconferencing in the Field: A Heuristic Processing Model, 54 Mgmt. Sci. 1565, 1565 (2008). According to cognitive theory, people using videoconferencing make judgments based more on “available heuristic cues,” such as a person’s general likeability, than “the quality of arguments presented by the speaker.” Consistent with the concept of Zoom fatigue, this is because videoconferencing requires a “higher cognitive load” than face-to-face interaction.
There is also a solid body of research indicating that “viewing a person on screen versus live” generally has a negative impact on how that person is perceived by observers, perhaps because in-person interactions are more vivid and therefore better-remembered. Although there is a lack of research directly addressing the issue, existing research on deception, demeanor, and social feedback suggests that videoconferencing will have a negative impact by removing important nonverbal cues. Indeed, the writers of FRCP 43 acknowledged in the 1996 Advisory Committee Note that “the importance of presenting live testimony in court cannot be forgotten,” and that “the opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition.”
In the context of legal proceedings, available evidence suggests that use of videoconferencing is likely to be detrimental to criminal defendants. In 1999, Cook County, Illinois—home to Chicago and its greater metropolitan area—began allowing bail hearings for felony defendants to be held via a closed-circuit video link. An empirical analysis of the outcomes in these bail hearings revealed a significant increase in average bond amounts after the policy was implemented. Acknowledging that “[t]he picture quality and sound available today are far superior to the technology that existed when the equipment was installed in Cook County,” and that it is still unclear why the remote bail hearings increased bond amounts, the authors nevertheless conclude that “[t]he warning signs from the Cook County experience counsel caution.”
Similarly, studies on the use of videoconferencing in immigration proceedings suggest that “even without significant technological difficulties, videoconferencing is likely to affect the factfinding process in ways that are detrimental to the immigrant respondent.” Another study found that viewers perceived a witness differently depending on the witness’s level of emotion and their view of the witness (head only or waist-up). These results suggest that the use of videoconferencing unfairly affects the likeability and credibility of witnesses who are either unemotional, such as experts, or overly emotional, such as victims or family members who testify about painful experiences, especially when observers are shown a head-only view. Other research suggests that “even subtle changes in camera angle can affect the judgements of jurors.”
III. Legal Challenges to Remote Proceedings
A. Due Process in Civil Cases
Courts in civil cases have rejected arguments “that principles of due process require that testimony and cross-examination take place in-person,” pointing to FRCP 43. The available empirical evidence suggests, however, that even if the FRCP allows contemporaneous transmission, additional procedures—and research on what those might look like—are needed to counteract the prejudicial effects of videoconferencing discussed in Part II.
Moreover, the arbitrary nature of which proceedings happened to be scheduled during the pandemic, and thus needed to be performed remotely, also potentially violates due process; the duration of the pandemic creates a group of cases that were unfairly subjected to the biases inherent in videoconferencing due to forces outside the parties’ control. As states continue to differ in case rates and degrees of reopening, the decision to conduct remote proceedings, and thus the impact of videoconferencing problems on the outcomes, will increasingly depend on factors that should not—but likely will—influence the outcome of any given case: statewide and local infection rates; attorneys’, clients’, and witnesses’ pre-existing health conditions and willingness to risk infection; and availability of spaces to safely conduct in-person proceedings.
B. Sixth Amendment and Habeas Claims for Criminal Defendants
Because the Supreme Court in Maryland v. Craig already rejected a Confrontation Clause claim, criminal defendants who believe their case was unfairly affected by videoconferencing could try to bring a Sixth Amendment ineffective assistance of counsel claim (IAC), if counsel consented to the use of video. In Strickland v. Washington, the Court set a tough evidentiary burden for IAC—to succeed, a defendant must show that counsel “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment,” and that “the deficient performance prejudiced the defense.” As the pitfalls of videoconferencing and remote litigation become increasingly well-known and warned against, IAC likely becomes easier to prove if an attorney ignores those known risks.
Alternatively, if the case proceeded remotely over their objections, defendants could bring either a due process claim or a habeas petition. In 2002, Federal Rules of Criminal Procedure 5(f) and 10(c) were added to allow the use of videoconferencing for initial appearances and arraignments. Due to the Advisory Committee’s recognition that “something is lost when a defendant is not required to make a personal appearance,” however, these proceedings can only be conducted remotely with the defendant’s consent. Thus, without consent, a defendant who gets an unfavorable trial outcome can argue, based on the research discussed in Part II, that remote trials are inherently unfair and biased against criminal defendants.
IV. Reconciling Conflicting Needs: Clearing Dockets, Protecting Public Health, and Preserving Fairness
Despite all of the problems posed by remote court proceedings, there is a genuine need to clear court dockets—which were overcrowded even before COVID-19 forced the postponement of trials10See generally Paul D. Carrington, Crowded Dockets and the Courts of Appeals: The Threat to the Function of Review and the National Law, 82 Harv. L. Rev. 542 (1969). See also generally Peter S. Menell & Ryan Vacca, Revisiting and Confronting the Federal Judiciary Capacity “Crisis”: Charting A Path for Federal Judiciary Reform, 108 Cal. L. Rev. 789 (2020).—and to minimize the time criminal defendants spend in jail awaiting trial, especially as COVID-19 is spreading rapidly through jails and prisons. This urgent need in criminal cases, along with the Sixth Amendment guarantee of “a speedy public trial,” is driving courts’ emphasis on moving forward with cases as quickly as possible. Given the public health concerns restricting in-person activities, it might seem as though remote trials are the best available compromise.
However, two other alternatives should also be considered: allowing more defendants to be released on bond, as many states have done, or waiting just a little longer to better evaluate the possibility of in-person trials. The approval of pretrial release is ultimately a discretionary policy decision, and the option should be weighed against a particular defendant’s flight risk and charges according to 18 U.S.C. § 3142. Nevertheless, the potential for large numbers of criminal appeals—based on unfair remote proceedings—as well as civil suits brought by defendants who contract COVID in jail, are important countervailing interests that should also be considered.
Moreover, resuming in-person trials may not be as infeasible as many believed. As states begin to reopen, courthouses are also slowly reopening. I personally observed an in-person criminal jury trial held in federal district court in Chicago in early August. The judge, attorneys, defendant, jurors, and spectators all wore masks and observed social-distancing guidelines. To address the concern that jurors may not be able to effectively evaluate credibility through a mask, witnesses were permitted to take their masks off while testifying. To protect everyone’s health and safety, gloves, disinfecting wipes, and microphone covers were provided, and each witness sanitized their seat and the witness box afterwards. Thus, it is possible, even in the midst of the pandemic, to conduct some, albeit smaller, in-person jury trials. Unlike the pervasive uncertainty society faced when the pandemic first began earlier this year, there are now signs that suggest we may be able to slowly but safely move forward with in-person proceedings until the public health crisis subsides.
I recognize that there may be some cases where special circumstances strongly favor proceeding as soon as possible, but where an in-person trial is simply not feasible. In such cases, videoconferencing may truly be the best available option. However, there needs to be greater recognition of the pitfalls of using this technology and a greater push for procedural safeguards to minimize bias. One possible mitigation practice could be giving instructions to explain Zoom fatigue and how to combat it—closing other windows and eliminating other distractions, taking frequent breaks, reducing the size of the on-screen faces, and hiding yourself from view. Although difficult to enforce virtually, explaining to jurors, and even judges and attorneys, the phenomenon of Zoom fatigue could better motivate them to adhere to suggested best practices. Another possible mitigation strategy is to adjust the camera angle, lighting, and background to improve judges’ and jurors’ perceptions of attorneys and witnesses. Lastly, there is some evidence suggesting that personalization—sharing information and building more positive attitudes between people—can reduce the effects of triggered displaced aggression;11See generally Eduardo A. Vasquez, Nurcan Ensari, William C. Pedersen, Rae Yunzi Tan & Norman Miller, Personalization and Differentiation as Moderators of Triggered Displaced Aggression Towards Out-Group Targets, 37 Eur. J. Soc. Psych. 297 (2007). this is an area where more research could help determine best practices.
The psychology concepts and empirical research discussed in Part II suggest that remote proceedings actually pose a high risk of unfairness in case outcomes, despite courts’ opinions to the contrary. I believe that courts have failed to recognize the extent to which remote legal proceedings may be biased, particularly in subtle ways that are not consciously discernible. As a result, the remote trials and other legal proceedings taking place during the pandemic, especially over the objections of at least one of the parties, could potentially open the door to countless appeals based on due process violations, ineffective assistance of counsel claims, and habeas petitions. Thus, until more research can determine the nature of how and the extent to which videoconferencing impacts litigation, courts, counsel, and plaintiffs and defendants should all be wary of moving forward remotely. If the decision to proceed remotely is made, all parties, counsel, judges, and jurors should take proactive, evidence-based steps to minimize bias.
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Angela Chang is a staff member of The University of Chicago Law Review and a J.D. Candidate in the University of Chicago Law School Class of 2022. She received her B.A. from Williams College in 2017. She would like to thank Deb Malamud for her invaluable input and guidance.