386 THE ADVOCATE
VOL. 80 PART 3 MAY 2022
evidence-based and user-centred path forward, courts could not only
respond to these risks, but also use technology to “shape new court
processes that are more responsive to and inclusive of the public”.4
LOW-QUALITY TECHNOLOGY MAY POSE DANGERS FOR CREDIBILITY
ASSESSMENT, EMOTIONAL CONNECTION
There are a number of risks associated with the use of technology in virtual
courtrooms. It appears these risks can be mitigated if due attention is paid to
them and accommodations are made as necessary. Unaddressed, however,
such risks may disadvantage the most marginalized litigants, injecting systemic
bias into our courts. One such risk is that users of low-quality technology
may be judged as less credible or that they may be viewed as
“dehumanized” relative to users of higher-quality technology or in-person witnesses,
making it more difficult to emotionally connect with their testimony.
Prior to the pandemic, courts were generally reluctant to allow remote
witness testimony where there were significant issues of credibility.5 Since
COVID-19, many courts have become more receptive to remote testimony
where they are convinced that trial fairness will not be threatened, where
certain basic technical standards are met, and where there is a detailed
logistical plan in place for the testimony.6 Some courts now consider
remote testimony appropriate even where there are significant credibility
issues engaged,7 but others remain much more reluctant to embrace virtual
credibility assessment on significant issues8 (or virtual testimony at all).9
The issue ultimately comes down to the trial judge’s discretion. As it stands,
courts engage in virtual credibility assessments at least some of the time,
and this number is likely to grow as they become increasingly familiar with
technology. There remains a risk, however, that virtual credibility assessment
could be biased.
Initial studies of virtually mediated testimony suggested a negative credibility
bias, meaning that users who testified by video would be rated as less
credible than those who testified in person. A famous example is a bail
study conducted in Cook Country, Illinois that found that when courts
began to conduct bail hearings by video in 1999, judges began to request significantly
higher bail sums (fifty-one per cent higher, on average).10 The
preliminary results of the study were so dramatic that Cook County voluntarily
returned to conducting in-person bail hearings. However, the study’s
authors raised concerns for virtual hearings more generally, noting that
“there may be some aspects of live presence that affect the believability of
an individual”11 or a dehumanization effect that “encourages a harsher
response than would occur if the judge were faced with a live individual”.12