Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom

79 Pages Posted: 1 Sep 2020 Last revised: 19 Dec 2020

See all articles by Susan A. Bandes

Susan A. Bandes

DePaul University - College of Law

Neal Feigenson

Quinnipiac University - School of Law

Date Written: August 30, 2020

Abstract

Faith in the legitimating power of the live hearing or trial performed at the place of justice is at least as old as the Iliad. In public courtrooms, litigants appear together, evidence is presented, and decisions are openly and formally pronounced. The bedrock belief in the importance of the courtroom is rooted in common law, constitutional guarantees, and venerated tradition, as well as in folk knowledge. Courtrooms are widely believed to imbue adjudication with “a mystique of authenticity and legitimacy.” The covid-19 pandemic, however, by compelling legal systems throughout the world to turn from physical courtrooms to virtual ones, disrupts and calls into question longstanding assumptions about the conditions essential for the delivery of justice. These questions are not merely tangential – they implicate many of the core beliefs undergirding the U.S. system of justice, including the whole notion of “a day in court” as the promise of a synchronous, physically situated event with a live audience. Rather than regard virtual courts as just an unfortunate expedient, temporary or not, we use them as an occasion to reflect on the essential goals of the justice system, and to re-examine courtroom practices in light of those goals. We draw on social science to help identify what can be justified after the myths are pared away. Focusing on three interrelated aspects of traditional courts – the display and interpretation of demeanor evidence; the courtroom as a physical site of justice; and the presence of the public – we prompt a reassessment of what our legal culture should value most in courtroom adjudication and what we are willing to trade off to achieve it.

Keywords: criminal procedure, civil procedure, evidence, Zoom, law and technology, psychology and law, jury decision-making, emotion and law, remorse, trials, demeanor, victim impact statements, courtroom architecture, judicial decision-making

Suggested Citation

Bandes, Susan A. and Feigenson, Neal, Virtual Trials: Necessity, Invention, and the Evolution of the Courtroom (August 30, 2020). 68 Buffalo Law Review 1275 (2020)., Available at SSRN: https://ssrn.com/abstract=3683408 or http://dx.doi.org/10.2139/ssrn.3683408

Susan A. Bandes (Contact Author)

DePaul University - College of Law ( email )

25 E. Jackson Blvd.
Chicago, IL Cook County 60604-2287
United States
(312) 362-8701 (Phone)

HOME PAGE: http://www.susanbandes.com/

Neal Feigenson

Quinnipiac University - School of Law ( email )

275 Mt. Carmel Ave.
Hamden, CT 06518
United States

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