Presence and participation in a virtual court
| Author | Meredith Rossner,David Tait |
| DOI | http://doi.org/10.1177/17488958211017372 |
| Published date | 01 February 2023 |
| Date | 01 February 2023 |
| Subject Matter | Articles |
https://doi.org/10.1177/17488958211017372
Criminology & Criminal Justice
2023, Vol. 23(1) 135 –157
© The Author(s) 2021
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DOI: 10.1177/17488958211017372
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Presence and participation
in a virtual court
Meredith Rossner
The Australian National University, Australia
David Tait
Western Sydney University, Australia
Abstract
The COVID-19 pandemic has led to an increase in the use of video-mediated justice practices.
However, such developments have already been transforming justice over the course of the
previous 20 years. Scholars and legal professinals have expressed concerns over how remote
appearance in court impacts perceptions of the accused. In this article, we consider some of
these concerns and explore the concept of the ‘distributed court’ as a potential remedy. Unlike
traditional video appearance in court, where a defendant participates remotely while all other
players are co-located in the same courtroom, in a distributed court all participants meet in a
shared virtual space. Such a configuration is similar to the virtual courts developed worldwide
during the COVID-19 pandemic. We draw on a reimagining of co-presence from scholars in the
sociology of technology to elaborate the concept of the distributed court. We then present
the results of a mock jury study that examines how jurors respond to variations in court
technology configurations. We find that appearing by video does not impact the likelihood of a
guilty verdict. Rather, a defendant appearing alone in a dock seems to be the most prejudicial
location. We find that a distributed court can communicate equality and produce a shared
experience of remote participation. We conclude with a discussion of how this research can
inform best practice in a future where a significant number of criminal hearings are likely to
continue in a virtual format.
Keywords
Co-presence, courtroom design, courtroom technology, distributed courts, participation,
virtual courts
Corresponding author:
Meredith Rossner, Centre for Social Research and Methods, The Australian National University, Canberra,
ACT 0200, Australia.
Email: meredith.rossner@anu.edu.au
1017372CRJ0010.1177/17488958211017372Criminology & Criminal JusticeRossner and Tait
research-article2021
Article
136 Criminology & Criminal Justice 23(1)
Introduction: The experience of defendants in court and
the promise of technological innovation
There has been a long-standing tension between the ideals enshrined in common law
practices and the actual staging of the criminal process. The practices and procedures
surrounding a criminal hearing are meant to communicate procedural fairness, a respect
for the dignity of the accused and effective participation (Donoghue, 2017; Owusu-
Bempah 2018, 2020). Nonetheless, court architecture and courtroom design can at times
send rather different signals towards defendants and other participants (Bybee, 2012;
Mulcahy, 2010; Tait, 2018). Social scientists have long documented the way the physical
space and the rituals of the court can be alienating and degrading for its most vulnerable
users, such as defendants, victims and witnesses (Carlen, 1976; Mulcahy, 2010; Mulcahy
and Rowden, 2019; Resnik and Curtis, 2011; Rock, 1993).
An area of courtroom practice where this tension comes into sharp focus is around the
placement and participation of the accused during a criminal proceeding. In previous
work (Rossner et al., 2017), we presented empirical evidence that the containment of the
accused in a dock, either in a traditional open, wood-fenced dock or in the contemporary
use of fully secured ‘glass cages’ (Tait, 2011), is a substantial challenge to the presump-
tion of innocence. In a simulated trial, mock-jurors were more likely to reach a guilty
verdict when they saw the accused sitting in a dock compared to sitting with their lawyer
at the bar table.
More recently, the introduction of video technology into the courtroom has the poten-
tial to further impact defendants’ experience (McKay, 2018; Rowden et al., 2013; Ward,
2014). While this has in some cases been presented as a way to improve access and
efficiency for defendants, significant concerns remain about procedural and substantive
fairness for remote participants.
These debates have reignited as many court hearings moved online in response to the
COVID-19 pandemic and associated lockdown measures. Early reviews of participants’
experience with remote hearings across a range of (non-criminal) jurisdictions suggest
that most judges, legal professionals and litigants adapted well to a rapidly changing
online format, with most people reporting positive experiences with their remote hearing
(Byrom et al., 2020; Ryan et al. 2020; Tomlinson et al., 2020). However, consultations
also revealed consistent concerns with connectivity, the sharing of documents, fairness
and open justice.
Past research on video in courts has focussed on the impact of the defendant appear-
ing remotely, while all other participants are co-located in a courtroom, the dominant
mode of remote participation in most jurisdictions. However, during the pandemic this
configuration was not possible. Instead, most or all participants took part in a court hear-
ing from a remote location, be it an office, judicial chambers, prison or home. Similar
innovations were already undergoing pilot testing in select hearings in the Tax Tribunal,
Family and Civil Courts in England, where participants took part from their home or
office, and a judge adjudicated from a (largely empty) courtroom (Rossner and McCurdy,
2018, 2020). These hearings, as well as the remote hearings that took place during the
lockdown are an example of a ‘distributed court’ – a courtroom where participants are
distributed across multiple locations.1
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