Performing Expertise: The Design of Audiovisual Links and the Construction of the Remote Expert Witness in Court
| DOI | 10.1177/0964663918802991 |
| Date | 01 October 2019 |
| Published date | 01 October 2019 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2019, Vol. 28(5) 698–718
Performing Expertise:
ª The Author(s) 2018
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The Design of Audiovisual
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DOI: 10.1177/0964663918802991
Links and the Construction
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of the Remote Expert
Witness in Court
Emma Rowden
University of Technology Sydney, Australia
Anne Wallace
La Trobe University, Australia
Abstract
This article reports on empirical research conducted into the use of audiovisual links
(videolinks) to take expert testimony in jury trials. Studies reveal ambivalent attitudes to
court use of videolink, with most previous research focussed on its use for vulnerable
witnesses and defendants. Our study finds there are issues unique to expert witnesses
appearing by videolink, such as compromised ability to gesture and interact with exhibits
and demonstrative tools, and reductions in availability of feedback to gauge juror
understanding. Overall, the use of videolinks adds an additional cognitive load to the task
of giving expert evidence. While many of these issues might be addressed through
environmental or technological improvements, we argue this research has broader
ramifications for expert witnesses and the courts. The use of videolinks for taking expert
evidence exposes the contingent nature of expertise and the cultural scaffolding inherent
in its construction. In reflecting on the implications of these findings, and on the way that
reliability, credibility and expertise are defined and established in court, we suggest a
more critical engagement with the relationship between content and mode of delivery by
stakeholders.
Corresponding author:
Anne Wallace, La Trobe Law School, La Trobe University, Bundoora, Victoria 3096, Australia.
Email: a.wallace@latrobe.edu.au
Rowden and Wallace
699
Keywords
Audiovisual links, courtroom architecture, expert witness, expert testimony, evidence,
videoconferencing, videolinks
Introduction
While courts have used audiovisual links to take evidence from witnesses for over
30 years, discourse reveals a certain level of ambivalence towards its use. Supporters
see it as indispensable for speeding up judicial processes and facilitating access to
evidence that would otherwise be unattainable. However, critics are concerned that the
diminished quality of communication over audiovisual links makes confrontation and
cross-examination challenging (Friedman, 2001–2002) and may result in the witness
being perceived differently (Poulin, 2004). One commentator even suggests that using
videolinks might threaten the legitimacy of the trial (Mulcahy, 2008). Even those who
contest these claims agree on the need for more research on its impact on the right to a
fair trial (Helland, 2001–2002: 747–748).
Studies into the use of audiovisual links in courts have been disparate in terms of
scope, participant focus, measures of success and conclusions. Principally, they examine
the impact of videolink technologies on court experiences while ignoring other potential
influences, such as court procedure or the built environment (Rowden et al., 2013). Much
of the previous research focuses on the experiences of child and other vulnerable wit-
nesses, with mixed results. Some witnesses feel disempowered when forced to give
evidence this way (Plotnikoff and Woolfson, 2004: 71), but generally the research finds
that the use of audiovisual links makes it easier for vulnerable witnesses to testify. Some
studies suggest their use impacts adversely on perceptions of the witness (Cashmore and
Trimboli, 2006: 2; Ellison and Munro, 2014: 14–18; McAuliff and Kovera, 2002: 423),
while some do not (Lederer, 1999: 844; Taylor and Joudo, 2005: xi). Two empirical
studies found its use does not impact adversely on verdicts (Cashmore and Trimboli,
2006: 2; Ellison and Munro, 2014: 11–21). Studies have identified that defendants
appearing by audiovisual link can be disadvantaged (Diamond et al., 2010; McKay,
2018; Plotnikoff and Woolfson, 1999, 2000), with one finding a quantifiable increase
in amounts set for bail (Diamond et al., 2010). However, little attention has been paid to
the implications of audiovisual links for other trial participants, such as the judiciary,
lawyers and expert witnesses (Rowden, 2011; Wallace, 2011; 2013). We begin to
address this gap by investigating the implications of using audiovisual links to take
expert testimony in jury trials. This investigation focuses, necessarily, only on the role
of the expert as performed in the common law Anglo-American adversarial tradition that
is the basis of the Australian jurisdictions in which our data were collected. While
experts in common law courts are subject to an overriding obligation to provide inde-
pendent assistance to the court by way of objective, unbiased opinion,1 they are generally
called as a witness on behalf of a party in the expectation that their evidence will support
that party’s case.
Our empirical research on the use of audiovisual links in Australian courts finds that
expert witnesses encounter difficulties giving evidence this way that are previously
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Social & Legal Studies 28(5)
unacknowledged. Qualitative interviews, questionnaires and site visits to courthouses
and remote witness locations revealed perceptions on behalf of experts and judges that
audiovisual links deprive experts of the feedback necessary to shape their performance,
compromise their ability to gesture and interact with exhibits and demonstrative tools
and create an additional cognitive load for the witness. These data support previously
expressed concerns that all witnesses may find it more difficult to achieve gesture and
other important nonverbal cues over audiovisual links (Poulin, 2004). Findings from this
research also suggest that awareness of the important civic function of the court may be
diminished when evidence is given in this way (Mulcahy, 2008; Rowden, 2018). Beyond
the practical implications of these findings, we suggest that audiovisual links expose the
contingent nature of expertise and the cultural scaffolding around its construction, lead-
ing us to reflect upon how reliability, credibility and expertise are defined and estab-
lished in court. While the reliability and credibility of all witnesses is constructed
through their court performance, we argue that there are particular implications for
experts delivering their testimony remotely. An expert who testifies by videolink in
an adversarial trial may find their ability to validate, and give authority to, the particular
version of the scientific truth that they enlisted to provide is compromised by the medium
of delivery, resulting in a performance that is incongruent with their actual expertise.
A single, or court-appointed, expert may also find their expert performance compro-
mised, although perhaps with lesser effect.
Our findings, therefore, support the claim that expertise can be seen as a form of
social capital (Bourdieu, 1984), confirmed through qualifications and accreditation pro-
cesses, but that successful identification of an expert in the court context is contingent on
that individual behaving congruently with what is expected of an expert in this particular
citation of their identity (Butler, 1988). Ultimately, this has implications for how truth
and expert knowledge (Foucault, 1980) are constructed in court. Our analysis suggests
that it may be time to reconsider how the role of the expert is performed in court and calls
for more detailed investigation of the relationship between the mode of delivering expert
evidence and its impact.
The Role of the Expert Witness
The role of an expert witness is to provide the court with technical and scientific
expertise on matters that are beyond everyday knowledge (Feigenson and Spiesel,
2009: 104). A suitably qualified expert may give evidence of fact but, uniquely, may
also give evidence of their opinion, that is, an inference drawn from the facts (Freckelton
and Selby, 2018: para 2.0.03). The courts’ concern is to ensure that opinions expressed in
the courtroom are derived from a valid field of science or other discipline and that the
witness has sufficient knowledge and experience to be recognised as an expert (Freck-
elton and Selby, 2018: para 1.0.10). The essential requirements are that the expert’s
opinion must be relevant and necessary to assist the court and confined to their expertise
(Freckelton et al., 2016: 21–24; Heydon, 2014: 1015-1016). Both prosecution and
defence may call expert evidence, and the prosecution must disclose any expert reports
or statements obtained during investigations.2 Although those statements may be admit-
ted into evidence by consent,3 in criminal trials it appears to be more common for experts
Rowden and Wallace
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to give evidence in person, either in court, or remotely via audiovisual links, depending
on the jurisdiction. In some cases, jurors may also be given a copy of the expert’s written
report, but this is not routine in Australian courts (Freckelton et al., 2016: 83).
Experts explain and justify their opinions to the court in examination and cross-
examination. Their evidence needs to be adequately communicated and explained to
the jury. This includes laying the groundwork to enable their findings and interpretations
to be understood by lay persons (Wheate, 2008: 124). Experts may be questioned and
challenged in relation to their opinions or on their understanding or application of a
scientific method. The method by which evidence is given has implications for an
expert’s...
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