The November 2008 terrorist attack in Mumbai that claimed 164 lives was so shocking that it forced the Indian government to introduce new trial procedures to protect the lone surviving suspect from the anger of the public.
Ajmal Kasab, the only one of ten attackers who ever faced Indian justice, was allowed to appear via video conferencing from prison to save local police and court security the trouble of transporting him safely to a courtroom.
The Kasab case, which ended with a death sentence, continues to influence legal proceedings on the sub-continent. In February, Bangladesh lawmakers cited the case as they argued for the ability to hold sensitive proceedings via video conferencing. While the technology is readily available, such a proceeding would require an amendment to the law–it’s a common feature of most legal systems that a defendant have the chance to face their accusers in person.
The correct deployment of video conferencing, however, can preserve a high-risk prisoner’s right to their day in court, and protect them and the public from danger.
It could even be used in the U.S.
How Video Calling Can Work in Court
Public defenders drawn into the Bangladesh video calling trial debate have argued that the system imposes on a defendant’s right to privately consult with a lawyer, since they are under constant video and audio surveillance when sharing a live connection in front of the entire courtroom.
That concern assumes there’s only a single connection between prison and the court. That’s a very limited approach to video conferencing, and highlights the need to agree on a technical setup before considering the moral and legal implications.
To begin, there’s no need to limit the connection to just two cameras. Rather, the system can be set up to mimic a group video chat, with dedicated VC cameras in front of the remote defendant, their remote security, the presiding judge, the defense and state counsel, and even auxiliary staff such as stenographers, legal clerks, and in-court security. Once they’re all dialed into a common platform, something as commonplace as Skype or Google Hangouts, every angle of the proceedings is covered.
A feature like Hangout’s active speaker tech, which automatically places whoever’s talking on the center screen, can help organize the flow of the case. And, if the video conferencing platform is beefed up a little, there’s room to give the defendant their own private space to consult with their legal team.
Courtroom to Private Chatroom
Modern video calling apps may work on phones, but they’re a lot more dynamic than any phone call. That’s because within a VC app, the phone isn’t just a sender and receiver, it is an entire social space. Apps like Houseparty let users loiter in a common lobby and then virtually walk in and out of a series of video chat rooms.
The same dynamic applies on every device, be it a laptop, desktop, or tablet. That means the main proceedings of a video courtroom could be just one of several chat rooms accessible to all involved.
This could mean that a defendant and their counsel could momentarily exit the trial proceedings and meet each other in a private chat room contained within the same app.
The same applies to a judge and the presenting counsel. The two or three could discuss procedural matters away from the jury, perhaps saving some time by eliminating the need to excuse the jurors.
Apps like ooVoo can also accommodate live-streamed third-party video, so that evidence can be shared online across everyone’s screens. It’s clear that the tech exists to create a multifaceted, multimedia remote courtroom. What remains is the legal and political will to do so.
Video Conferencing in U.S. Courts
The Kasab case set a precedent that has influenced India’s regional neighbors, but it has had little impact further abroad. U.S. courts have made only limited use of video conferencing. It has been employed to bring remote witness testimony and cross-examination into the court, but a remote defendant has yet to virtually attend an entire proceeding.
As in Bangladesh, U.S. law requires that a defendant appear before the court during all the crucial stages of a case, from plea and jury selection through to return of the verdict. The future of the virtual trial, therefore, depends on how the word “appear” is defined–and we’re not going to start arguing legal semantics here.
However, if that rule requires a defendant be able to address the court, hear and challenge evidence from the prosecution, and have access to their defense team, then a virtual appearance through video conferencing certainly fulfills those criteria.
There are clear financial benefits to staging a court case by video conference, and the security implications are obvious. With a little political will power we’ll see entire cases played out with a completely remote defendant sooner rather than later.
Perhaps that will lead to discussion of whether we need physical courtrooms at all?