Virtual evidence in courts –a concept to be considered in South Africa?

October 19, 2016 Carolee

By Dr Izette Knoetze
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Courts are pre-eminently human creations and serve two primary functions in society, namely they resolve disputes and deliver justice to litigants to the degree possible in a system conducted by fallible people (FI Lederer ‘The Road to the Virtual Courtroom? A Consideration of Today’s – and Tomorrow’s – High Technology Courtrooms’ (1999) Faculty Publication Paper 212 at 835) (www.scholarship.law.wm.edu, accessed 1-9-2016).
 
A virtual court is the use of technologies that provide for hearing and trials with participants in distant areas, in which the physical location of the courtroom does not dictate the process or the conduct of the proceedings.
 
Communications between the parties are conducted over high-speed, high-quality electronic networks that permit interactive data, voice and visual transmissions. According to Keith Kaplan (‘Will Virtual Courts Create Courthouse Relics?’ (2013) 52(2) The Judges’ Journal 32) a virtual court is a conceptual idea of a judicial forum that has no physical presence but still provides the same justice services that are available in courtrooms. Remote appearances and testimony are the key elements in virtual trials and virtual courtrooms.
 
Initially remote witness technology (first, closed circuit television (CCTV) and later videoconferencing) was adopted as a means of taking evidence from children, or other vulnerable parties, such as victims of sexual assault, to shield them from the physical presence of the accused in the courtroom and the risk of intimidation. While it is still most commonly used to enable vulnerable witnesses to give evidence from a location outside the courtroom, videoconferencing could enable other witnesses to give their evidence from a location outside the courtroom for a variety of other reasons, such as cost or convenience.
 
‘Virtual’ nature of participation
According to Anne Wallace (‘“Virtual Justice in the Bush”: The Use of Court Technology in Remote and Regional Australia’ (2008) 19 Journal of Law, Information and Science 5) ‘remote witnesses’ tend to fall into two categories. Firstly, there are those for whom physical participation in the courtroom may be quite easily possible and convenient in terms of access, but who are isolated from participation in the physical courtroom in their own interests, such as children and other vulnerable witnesses. They are ‘remote’ in a physical sense, but not necessarily geographically. The remote witness facility from which they give their evidence is most likely in the same building.
 
On the other hand, witnesses who give evidence on videoconference for reasons of cost or convenience are usually both physically and geographically remote from the courtroom. The remote witness facility from which they give their evidence may be another courtroom (closer to their work or home), or a public or private videoconferencing facility in that location.
 
Creating and operating technology in the courtroom
High-technology courtrooms are characterised by one core capability, a multi-faceted technology-based evidence presentation system that consists of a television-based document camera and a display system able to display not only what is placed under the camera, but also and critically, computer output. The computer input may stem from one or more installed desktop units, from a notebook computer and connected temporarily to the display system, or a combination of these. The display system may consist of televisions computer monitors, or large front or rear projection systems. A high-technology court record system and the capability for remote witness testimony by two-way, high-quality videoconferencing is also needed.
 
Legal framework for remote witness testimony
The two major reasons for the use of videoconferencing to take witness testimony have been firstly, the desire to protect vulnerable witnesses from trauma that they may experience in the physical courtroom, and secondly, the need to find ways to bring information and expertise to a courtroom from a witness located at a distance which makes physical attendance expensive, for example, if the witness resides in a rural area or particularly inconvenient, for instance an expert witness employed as an analyst in a DNA laboratory.
 
The use of technology in litigation requires that the laws of evidence recognise and provide for the various methods of taking and presenting evidence remotely. The taking of evidence by remote witness technology has largely been addressed in Australia by specific legislation and amendments to court rules.
Most Australian jurisdictions have also implemented legal regimes, which require or enable evidence given by vulnerable classes of witnesses for example children, and victims of sexual assault to give evidence remotely.
 
In South Africa s 158 of the Criminal Procedure Act 51 of 1977 (CPA) provides that criminal proceedings take place in the presence of the accused. An exception is provided for in s 158(2)(a) namely:
 
‘(2)(a) A court may, subject to section 153, on its own initiative or on application by the public prosecutor, order that a witness or an accused, if the witness or accused consents thereto, may give evidence by means of closed circuit television or similar electronic media.
(b) A court may make a similar order on the application of an accused or a witness.
 
(3) A court may make an order contemplated in subsection (2) only if facilities therefore are readily available or obtainable and if it appears to the court that to do so would –
(a) prevent unreasonable delay;
(b) save costs;
(c) be convenient;
(d) be in the interest of the security of the State or of public safety or in the interests of justice or the public; or
(e) prevent the likelihood that prejudice or harm might result to any person if he or she testifies or is present at such proceedings.
 
(4) The court may, in order to ensure a fair and just trial, make the giving of evidence in terms of subsection (2) subject to such conditions as it may deem necessary: Provided that the prosecutor and the accused have the right, by means of that procedure, to question a witness and to observe the reaction of that witness.
 
(5) The court shall provide reasons for refusing any application by the public prosecutor for the giving of evidence by a child complainant below the age of 14 years by means of closed circuit television or similar electronic media, immediately upon refusal and such reasons shall be entered into the record of the proceedings.’
 
Section 170A of the CPA provides for evidence through intermediaries.
 
Use of remote witness testimony in courts
This technology is used to conduct various types of court hearings in Australia, as an alternative to circuit hearings, directions hearings, pre-trial conferences, chamber applications, and applications for special leave to appeal (Wallace op cit at 3). In one example, videoconferencing was used as a temporary expedient to bring a magistrate ‘on-line’ to a country court, when the local magistrate was unexpectedly unavailable to deal with the roll. A magistrate who has finished their local list for the day can also be linked to a busier court elsewhere to assist with its caseload.
 
Videoconferencing is also being used to provide ancillary services to assist the court process. Thirty four United States (US) district courts, encompassing 60 actual sites, use videoconferencing for prisoner civil-rights-pretrial proceedings. Currently, the US Courts of Appeals for the Second, Tenth and District of Columbia, Circuits use videoconferencing for oral arguments.
 
The US Supreme Court has accepted, when necessary, child witness testimony via one-way video (Maryland v Craig 497 US 836 (1990)). The Florida Supreme Court sustained a robbery conviction based largely on the two-way video testimony of complainants testifying from Argentina (Harrell v State, 709 So. 2d 1364 (Fla. 1988)). In determining when the satellite procedure is appropriate, a finding similar to that of r 3.190(J) of the Florida Rules of Criminal Procedure is required. Rule 3.190(J) provides the circumstances under which and procedure by which a party can take a deposition to perpetuate testimony for those witnesses that are unavailable. Thus, in all future criminal cases where one of the parties makes a motion to present testimony via videoconferencing, it is incumbent upon the party bringing the motion to:
 
– verify or support by the affidavits of credible persons that a prospective witness resides beyond the territorial jurisdiction of the court or may be unable to attend or be prevented from attending a trial or hearing; and
– establish that the witness’s testimony is material and necessary to prevent a failure of justice.
If all the above requirements have been adhered to, the trial judge shall allow for the satellite procedure.
 
– Expert witnesses
During the 1998 Australian Institute of Judicial Administration Conference in Melbourne, the State of Victoria demonstrated a two-way connection to its forensic laboratory, illustrating how a forensic chemist, in a laboratory setting, could testify without attending court. I submit that much of expert witness testimony may become remote as it is an effective way to reduce litigation costs.
 
– Presiding officers
Presiding officers may also utilise videoconferencing effectively during trial. In the matter of United States v Salazar 44 M.J. 464 (1996), two of its five judges appeared by separate videoconferencing systems.
 
Vulnerable witnesses
The use of technology may also assist people with hearing, vision, mobility, or other problems. Internet-based videoconferencing proved to be critical in one such US case. With reliance on the judgments in the matter of Harrell (op cit) and United States v Gigante 971 F. Supp. 755, 756 (E.D.N.Y. 1997), a New Jersey Superior Court judge granted a plaintiff’s application to testify and observe the trial from his apartment via videoconferencing link over the Internet. The plaintiff who was paralysed from the neck down and breathed with the aid of a respirator, stated that he was too weak to travel from Chicago to New Jersey for his medical malpractice suit.
 
The abovementioned scenarios are examples of how the use of technology can effectively improve access to justice.
 
Advantages and disadvantages of remote witness testimony
Lederer notes that, although videoconferencing is highly effective, such testimony is not perfect (op citat 280). Short audio delays that are inherent in the technology prohibit the instant interruptions common in ordinary conversation. A further disadvantage is that, although video resolution and quality are good, extremely rapid movement may not reproduce properly.
 
Conclusion
Information and communications technologies play a key role in managing case load, publishing information for court users, managing knowledge within the court, supporting the preparation and conduct of litigation and presenting evidence, providing transcripts and preparing and publishing judgments.
It is proposed that South Africa, like Australia, enact legislation which addresses the issue of virtual courts and the use of technology in assisting remote witness testimony.
 
Technological changes will improve both access to and the efficiency of the justice system and should be embraced by all.
 
Dr Izette Knoetze LLD (UFS) is a Legal Researcher at the Legal Aid South Africa National Office in Johannesburg.
This article was first published in De Rebus in 2016 (Oct) DR 30.