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Nov 11, 2021

When the pandemic started, courts that were slower in adopting technology had to undergo a two-week revolution to move their operations to a remote setting. Under normal circumstances, that would have taken them twenty years to achieve. 

Existing research shows that while remote technologies can be helpful in court proceedings, they can also harm individuals if not used carefully. Several issues have been coming up around the effects that remote court proceedings have had on our communities.

Today’s guest is Douglas Keith, counsel in the Brennan Center’s Democracy Program, where he works primarily on promoting fair, diverse, and impartial courts. He will walk us through the various concerns.

Douglas Keith was the George A. Katz Fellow at the Brennan Center, where he worked on issues around money in politics, voting rights, and redistricting. His work has been featured in the New York TimesWashington Post, NPR, AtlanticGuardianNew York Daily News, and Huffington Post.

Before that, Keith worked as a Ford Foundation public interest law fellow at Advancement Project. He directed voting rights advocates in New York, served as an international election observer for the National Democratic Institute and OSCE Office for Democratic Institutions and Human Rights, and educated poll workers for the New York City Board of Elections. Keith is a graduate of NYU School of Law and Duke University.

What should we be concerned about?

All existing research suggests a real reason exists for courts to be cautious about doing video hearings. Studies have shown that video court cases have not always worked out as well as those cases when people have appeared in person.

Higher bail amounts charged for video court cases in Chicago

In Chicago, in the early 2000s, courts began using video for most of their felony bail hearings. A study that looked at 600,000 of those hearings found that judges imposed much higher bail amounts for those required to have video hearings rather than appearing in person. On average, the video cases paid 50% more bail, and in some instances, they paid up to 90% more.

People detained in deportation proceedings

People detained in deportation proceedings stood a much higher chance of being removed if they were required to appear by video rather than appearing in person.

A quiet place to appear and access to broadband

When people get detained, questions tend to arise about the quality of the broadband and them having access to a quiet place to appear. Also, when someone has to appear in court remotely from a jail or prison setting, the background could influence, impact, or change how a judge might view them as an individual. 

The digital divide

When someone not detained has to appear remotely, many different issues related to the digital divide could arise. They might not have the quality of internet that a judge might expect, and there are also massive differences in terms of the devices people are using to access the proceedings. Those issues need to be taken into account if the proceedings are to be fair.

What has changed?

Since Douglas has been advocating for the communities that have been affected by doing court proceedings remotely, there have been technological improvements that might make a difference. 

Remote proceedings are here to stay

Over the last year, courts have become very enthusiastic about how remote proceedings have been working out. Court leaders across the country have said that remote proceedings are here to stay because they have been efficient, speedy, and time-saving.

The problem

Most jurisdictions have not been talking to the people going through remote court proceedings or their attorneys to learn what is and is not working.

A common concern

A common concern with remote hearings is the ability for the client to communicate with their attorney during the proceedings. That ability gets hampered because remote tools do not allow the client and attorney to make eye contact and quietly confer about any information that might be relevant to the case during the proceedings.

Eviction proceedings

Douglas spoke to many individuals from legal aid organizations, representing people earning below certain income thresholds and going through eviction proceedings. 

What you can do, on a local level, when someone’s rights are violated

  1. Pay closer attention to what the courts in your jurisdiction are doing. Courts often allow for public comment or testimony when going through the process of proposing rule changes to allow for more remote proceedings.
  2. Engage with the courts and get involved. Watch your local courts to see the types of rule changes they are proposing, in terms of remote proceedings. If you disapprove and they do not require consent to move forward remotely, write to the court to tell them about your concerns and why you think consent should be required.

Resolving the issues

Advocates from all over the country are busy working on resolving these issues. They range from academics studying the impact of remote tools during the pandemic to practitioners in various spaces, guiding attorneys.

Research

More research is needed because we do not know enough about how people are being affected by remote tools. At the Brennan Center, they advocate for more resources towards that research to prevent the courts from inadvertently doing any harm.

Some other issues that Douglas is working on that are happening where tech intersects with the judicial system

Douglas is working on allowing the public access to court proceedings. During the pandemic, many courts started live streaming. That allows court watch groups to remotely observe the court proceedings and report to the public what is and is not working in the courthouses. That raised questions about the point of allowing public access to the courts. 

The watchdog effect

Public access makes the court aware that it is being watched and reminds them of their responsibility. Live streaming might result in a loss of some of that watchdog effect. So although technology has improved public access to the courts in some ways, we could also lose something along the way.

Remote tools

The use of remote tools in the courts is nuanced. They can lessen the burden that the courts place on people, but there are also times when those tools could be a cause for concern. That is why the courts need to work with their communities to find the right answers. 

Resources:

The Brennan Center for Justice

Washingtech.org