Dear Jim,
I was pleased to read this interesting and well thought out opinion piece.
In this spirit of healthy debate, I will chime in, so that you may continue to develop your thinking about this important topic.
I do not think there would be much disagreement in the way you have described the key societal/ juridical values for hearings. The crux of it is whether technology can serve those values. In my opinion, this is a functional/ technical issue. It is not a binary question of whether the technology is good enough or not. That is unfair, because “in-person” hearings have their share of imperfections. The question is whether, broadly speaking, technology is sufficient; which is to say it works well enough most of the time. I suggest it can be dealt with in these approximations rather than with exactitude. I suggest this is the test.
This issue is receiving a lot of attention presently in the common law world. There are examples of technology satisfying the test as I have described it. I draw to your attention the recent trial in the England/ Wales Commercial Court; Kazakhstan v The Bank of New York Mellon, which, I understand, took place between 26 March and 1 April. It was fully “virtual.” “Virtual” is perhaps an unfortunate term, it evokes science fiction, reminding members of the bench of scary childhood reading many decades ago. A more straight forward way of describing it would be to say that all of the trial steps took place outside of the Courtroom using audio-visual technology only. In this case, all participants (judge, counsel and witnesses (factual and expert) participated by audio-visual link within England, and also from Belgium, Kazakhstan and the United States. You will be able to read commentary about the case online. It seems to me that it was generally regarded as a success. It is proof of concept.
You mention technical glitches you have encountered. May I suggest you do not need to be troubled by these; “glitches” are a fact of life; when we are together in person or not. As one of our country’s most experience litigators, you are more familiar than anyone with the idea that trials are organic and fluid. Adaptation is not just something that happens sometimes. It is continuous state; a permanent frame of mind. So, when the signal is lost, one may wait patiently for it to resume. When a pet walks into the shot, it can be quietly shoo-ed out of the room or for more serious transgressions, put down (but not on camera). Often technical glitches in an audio-visual setting are temporary; caused by a momentary interference by the weather for example.
In-person hearing have their own hazards. I remind myself of a trial a colleague was involved in a couple of years ago. Junior dropped the water jug. It splintered and she cut her hand badly; with great drama is spurted blood all over the bar table. The judge paled, and swiftly exited stage-left to leave time for counsel and the crockery to be reassembled. Which they were. The trial proceeded, it made for a good story, all was well, Justice was done.
Also, I remind you that AVL has been a staple of Court practice for some time; for people on remand or serving a sentence of imprisonment, for anything except trial. They lost their right to attend Court some time ago; AVL was accepted as expedient.
Thank you again for your interesting and thought provoking piece.
All the best
Steve Keall
Barrister