Recently, courts have experimented with the benefits of virtual hearings or appearances by electronic means. The current pandemic has augmented that move.
But the devil is in the details. We must remember the traditional forms of cheating, and note how electronic systems can enable those tricks. We need careful management, going far beyond assuring quality of picture and sound.
Once cross-examination has begun, we do not allow the witness’ counsel or anyone else to brief the witness, still less allow coaching or prompting the witness. In a courtroom, it is easy to prevent that. Counsel cannot see what goes on behind them, but the judge sees it all. If a witness testifies electronically from premises which the witness or friends control, no one sees or hears prompting or coaching. The camera shows only some of what is behind the witness, none of what is in front. There could be notes, signs, flash cards, or a professional teleprompter. The witness could be watching instantaneous texts on a screen. Simple hand signals or mouthed words would be easy. Some witnesses wear headphones, indeed may be encouraged to. But a coach can speak on the same line, giving oral instructions.
If witnesses can turn off their electronic connection to the conference, they can do so to avoid an awkward question and buy time. No one knows who or what disconnected, especially if the connection earlier seemed unreliable.
There are other dangers. In Alberta private conversations between leading counsel and junior counsel have been recorded by the media, who could also convey them to everyone watching TV. And the media have used zoom lenses on their cameras to photograph counsel’s private notes. Broadcasting those ruined cross-examination in one British Columbia hearing.
In Canada some years ago, reporters rifled through a wastepaper basket and then published private notes which had passed between tribunal members. That danger recently widened. The English Court of Appeal has just ordered a new hearing because after an electronic hearing was over, somehow the microphone remained undetectably on. Later the judge’s comment to her clerk about one party’s strenuous efforts to stall off the hearing were overheard.
And of course any electronic hookup must allow the judge to control who has the floor, and prevent interruptions.
– Hon. J.E. Côté
The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.
Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.
He may be contacted through Juriliber at email: info@juriliber.com or phone 780-424-5345.
