Can justice be served online? (2024)

In what may seem like an unremarkable legal case, a Texas-based information technology company sought a multimillion-dollar settlement from its insurer for hail and wind damage during a storm. The plaintiff testified and the insurer’s attorneys called engineers as expert witnesses and displayed insurance damage photographs as exhibits.

But unlike most trials, jurors called in via Zoom from their couches, dining rooms, and home offices. Part of the event, which appears to have been the first virtual summary jury trial held in the United States, was even streamed live on YouTube.

The rapid shift to online hearings has several upsides, including increased convenience and attendance, as well as some drawbacks. It has also exposed a number of unanswered questions such as witness credibility. But perhaps the most noticeable impact of trials moving online was jury selection and juror participation. Psychologists sprang into action and are now helping to comb through existing literature and collect new evidence that can help maximize the benefits and minimize the downsides of online trials.

“Suddenly we had to engage people over a device that they use to watch Netflix and Hulu,” said Amy Stewart, JD, founding partner at Stewart Law Group, which represented the insurer in the groundbreaking Texas summary trial. “A lot of thought went into: How can we produce this television show that’s actually a jury trial?”

That question—and many others—became urgent when the nationwide lockdown forced judicial proceedings to either stop completely or move online. While some jurisdictions waited for restrictions to lift or opted for masked, socially distanced in-person proceedings, many courts embraced virtual trials. Even the U.S. Supreme Court held oral arguments using conference calls.

“This is a big deal, because the law by nature is pretty conservative,” said Ken Broda-Bahm, PhD, a senior litigation consultant at ThemeVision, a trial consulting service of Barnes & Thornburg LLP, a business law firm based in Los Angeles, and an expert in legal communication. “It follows tradition, so it required something like a pandemic to get people to consider a substantial departure from that.”

“One thing research tells us is that things have not been business as usual,” said Amy-May Leach, PhD, a professor of forensic psychology at Ontario Tech University who led a review of psychological research related to covid-19 and the courtroom. “Under these protective measures, justice is being served differently than it was prior to covid-19.”

Trading benefits and barriers

When it became clear that the covid-19 pandemic would last more than a few months, courts across the country did what many other industries did: They looked for ways to move their work online. For some legal business—such as motion hearings and status conferences that only involve a judge, attorneys, and clients—that process was fairly straightforward.

For hearings that involve witnesses, things are a little trickier, but these, too, were held virtually during the pandemic with relative success. The real question was whether full-blown jury trials would translate effectively to the online space. Could attorneys be sufficiently persuasive through a computer screen? Would members of the jury tuning in from home be easily distracted by roommates, pets, or social media? And most important, would justice ultimately be served?

Though adoption varied widely, courts have held hundreds of civil jury trials remotely since the pandemic began. With the consent of both parties, some criminal trials also took place online. But a serious concern in such cases is whether virtual hearings satisfy defendants’ constitutional rights, said Dennis Stolle, JD, PhD, APA’s senior director of applied psychology and former legal consultant of more than 20 years. The Sixth Amendment’s Confrontation Clause protects the right to confront witnesses during a criminal trial, but does video adequately cover that right?

Courtrooms also tend to feel grand and formal, bedecked with wood paneling, an American flag, and security guards. In a more familiar setting—the living room or the break room at work, for instance—might behavior and decision-making differ?

“Many times, when people come into the courthouse, they’re acting nonchalant,” said Judge Richard Young of the U.S. District Court for the Southern District of Indiana. “But once they see the courtroom, the jury chairs, the bench, and the judge wearing a black robe, they can detect that this is a serious setting and they need to act accordingly.”

Despite the unanswered questions, virtual trials have offered valuable benefits, which is why they are still in use and are—at least in some capacity—here to stay, Stolle said. Perhaps obvious but not to be understated are the convenience and cost savings of tuning into a trial remotely. Jurors, witnesses, counsel, and clients can all join a proceeding with less time and money spent on transportation, childcare, or missed work. Courts also need fewer staff and less space to conduct the same amount of business. Reports from Texas and Arizona indicate that virtual trials had better attendance rates, suggesting that they can improve access to justice (covid-19 Continuity of Court Operations During a Public Health Emergency Workgroup, Post-Pandemic Recommendations, Arizona Supreme Court, 2021; The Use of Remote Hearings in Texas State Courts: The Impact on Judicial Workload, National Center for State Courts, 2021).

On the other hand, participants need a working computer and reliable internet access to attend. Other challenges courts have faced include technological training and security concerns. Some have attempted to address such barriers, while maintaining safety protocols, by setting up individual kiosks for jurors at the courthouse—but that requires significant resources and staffing.

“In some ways, you’re trading one set of potential barriers for another,” said Jennifer Robbennolt, JD, PhD, a professor of law and psychology at the University of Illinois at Urbana-Champaign and codirector of the Illinois College of Law program on law, behavior, and social science.

Translating trials to the online space

Psychological science has long offered insight into the dynamics of court trials, but new research on online trials will take time. Lab experiments and mock virtual trials are now underway, but much of the work done by psychologists since the pandemic began has involved reviewing and interpreting relevant literature on attention, memory, persuasion, human-computer interaction, and more.

One question of particular interest to law firms is whether different strategies are required for influencing a jury in a virtual setting. Research on impression formation suggests that likeability and perceived intelligence decrease in an online setting and that it can be harder to establish rapport because there are fewer nonverbal cues (Fullwood, C., Applied Ergonomics, Vol. 38, No. 3, 2007; Basch, J. M., et al., Journal of Business and Psychology, Vol. 36, 2021). As a result, optimizing things such as lighting, framing, and camera angles is crucial, said Broda-Bahm, who is also on the advisory board of the Online Courtroom Project.

“It’s no longer just a matter of standing up and relying on your voice and body language,” he said. “Professional communicators like lawyers need to devote some thought to how they and their witnesses are coming across, which requires a ‘studio’ sort of attitude.”

People are seen as more trustworthy when filmed at eye level, for example, compared with when filmed from above or below (Baranowski, A. M., & Hecht, H., Empirical Studies of the Arts, Vol. 36, No. 1, 2017). Direct lighting in front of the speaker, as well as chest-up framing, can also help ensure that jurors can see and hear testimony and oral arguments, said Broda-Bahm.

Seeing is not necessarily believing, though, and lawyers are particularly worried about credibility judgments during online trials, said Robbennolt, who conducted a review of psychological literature relevant to online trials. With fewer nonverbal cues available, can attorneys, judges, and juries still distinguish lies from the truth?

Psychological research suggests there isn’t much cause for concern—that people are at least as good at detecting deception in an online or audio-only environment as they are in face-to-face communication. In fact, people may overly rely on nonverbal cues when the cues are available to make assessments, said Leach (Vrij, A., & Hartwig, M., Journal of Applied Research in Memory and Cognition, Vol. 10, No. 3, 2021; Bond, C. F., & DePaulo, B. M., Personality and Social Psychology Review, Vol. 10, No. 3, 2006). Those findings held up in a study that tested mock jurors’ credibility judgments of expert witnesses’ testimony in person, on video, and audio only. The researchers found no difference between perceptions of expert witness credibility or efficacy across settings (Jones, A. C. T., et al., Criminal Justice and Behavior, 2022).

It has been found, however, that observers may perceive witness testimony differently in person than they would in virtual settings. General research on telecommunication suggests that people are worse at recognizing emotions through video calls, especially if the feed lags or freezes (Schirmer, A., & Adolphs, R., Trends in Cognitive Science, Vol. 21, No. 3, 2017; Bruce, V., Interacting with Computers, Vol. 8, No. 2, 1996). Studies of witnesses that appeared remotely for asylum hearings also suggest that they are less successful at pleading their cases than those who appeared in person, possibly because they receive less empathy (Bandes, S. A., & Feigenson, N., 51 Southwestern Law Review 20, 2021). Those findings don’t hold up in all settings, Broda-Bahm noted, so it’s possible that empathy levels and emotion detection are factors that differ based on the context of the trial.

In virtual settings, sustaining attention is also a concern, Robbennolt said. Many people who worked remotely during the pandemic are familiar with the feeling of “Zoom fatigue” after a long day of video meetings.

“Early on, we heard horror stories about jurors sleeping, cooking, exercising, and doing other things during trials that they wouldn’t be doing in a courtroom,” said psychologist Dan Wolfe, JD, PhD, a senior director of jury consulting at Magna Legal Services who studies virtual judicial proceedings through mock trials and other methods.

While more data is needed on virtual trials specifically, research suggests that recall of witness testimony is no worse online than in person (Landström, S., et al., Applied Cognitive Psychology, Vol. 19, No. 7, 2005), though memory could be worse among those who are unfamiliar with the technology they are using, said Leach.

“For the people making the decisions, they’re able to remember the witness’s testimony just as well whether it’s in person or online,” said Leach. Another plus for recall: Remote trials can often begin sooner than in-person ones, which may reduce problems related to the degradation of memories over time among witnesses (Lacy, J. W., & Stark, C. E. L., Nature Reviews Neuroscience, Vol. 14, No. 9, 2013).

Possibly the most complex part of an online trial is the deliberation of the jury. Some nuances of group interaction—the tilt of a head, the rolling back of a chair—are certainly lost in the virtual space, Stolle noted. But in a series of mock virtual jury trials conducted by Broda-Bahm and his firm, online deliberations looked surprisingly similar to in-person ones. A possible upside: It was rare for any one juror to monopolize the conversation and people tended to be more purposeful about turn-taking, which led to more thoughtful and coherent deliberations, Broda-Bahm said.

A qualitative study of virtual juries conducted during the pandemic by psychologist Valerie Hans, PhD, a professor at Cornell Law School, suggests that virtual juries are at least as diverse as traditional ones. A mock trial with 25 jurors that Hans surveyed also largely reported no significant difference between virtual and in-person jury deliberations (DePaul Law Review, Vol. 71, 2021).

Though there is no difference in the diversity of jurors in virtual trials, equal participation is still a question. Some findings cast doubt on whether online meetings are truly egalitarian, with reports that participation among women and people of color declines—so the jury is still out, so to speak.

“Whether women and people of color participate more or less during online deliberations is an unanswered question,” Stolle said. “We can theorize about it, but what we really need is more direct psychological research on the question.”

What's next?

As protective restrictions lift, court responses continue to vary by jurisdiction. In Texas, for example, Travis County still regularly holds virtual trials in small matters when all parties agree, Dallas and Harris Counties operate completely in person, and Collin County uses a mix, Stewart reported. Hybrid trials, where some portions of the trial occur online and others happen in person, are also gaining in popularity. For instance, jury selection—which could require convening more than 100 people for several days and pose a significant public health risk—is still happening remotely in several states.

But many questions remain unanswered. Nearly everything being asked about virtual judicial proceedings has an implicit question behind it: Could moving a trial online affect its outcome?

It’s something that’s hard to study, partly because random assignment isn’t possible outside mock trials and laboratories. Some data, however, suggest that outcomes could be impacted. One study suggests that bail tends to be higher when defendants appear remotely (Diamond, S. S., et al., Journal of Criminal Law and Criminology, Vol. 100, No. 3, 2010). Attorneys who relied solely on videoconferencing to advise clients during the pandemic also reported challenges in the plea-bargaining process (Daftary-Kapur, T., et al., Law and Human Behavior, Vol. 45, No. 2, 2021).

“Moving forward, psychologists can play a critically important role in assessing not only whether outcomes differ across in-person versus online proceedings, but also how parties view them in terms of fair process,” said psychologist Donna Shestowsky, JD, PhD, a professor of law at the University of California, Davis, who is working with the Pew Charitable Trusts to evaluate online platforms for mediations and negotiations, including exploring questions about procedural justice.

Other psychologists are further exploring the diversity of jury pools in virtual trials; how expert witnesses, fact witnesses, and victims of crimes are perceived online; and whether there are psychological implications of various participants tuning in to a trial in different ways (in person, on video, or audio only). Answering these questions, and others, is critical for ensuring that virtual legal proceedings are as fair as traditional ones.

“There are so many positives, and I can understand why there’s an impetus to continue, but the research still needs to catch up,” said Leach. “It can be very difficult to claw back some of these procedures once they’re in place for an extended period of time, so I would urge people to be measured in their decisions to move forward.”

As courts have wrestled with questions about virtual proceedings, they’ve also faced the impacts of protective measures inside the courtroom. Do masks, social distancing, and other public health protocols affect how participants feel during a trial—or how they perceive one another?

Despite a dearth of directly applicable findings, existing psychological research offered some clues about the effects of wearing a mask. In one study, patients perceived mask-wearing doctors as less empathetic than those without masks (Wong, C. K. M., et al., BMC Family Practice, Vol. 14, No. 200, 2013). In other research, witnesses who wore a garment such as a niqab that covered their face in court were not judged to be less credible than those without such a garment (Fahmy, W., et al., Canadian Journal of Behavioural Science, Vol. 51, No. 1, 2019).

The larger context of a global pandemic may have also influenced psychological processes among those in the courtroom, according to a review of psychological literature conducted by Amy-May Leach, PhD, of Ontario Tech University and her colleagues.

For example, worries about contracting covid-19 may have distracted jurors or other participants, which could hinder their cognitive performance. Feelings of anxiety or anger around safety protocols could also alter information processing and memory recall (Psychology, Crime & Law, 2021).

“These findings are helpful, but many of the studies draw on a particular phenomenon in isolation and it’s difficult to know how all that comes together in a courtroom,” said Leach.

covid-19 and the courtroom: How social and cognitive psychological processes might affect trials during a pandemic
Leach, A.-M., et al., Psychology, Crime & Law, 2021

In-person or via technology?: Drawing on psychology to choose and design dispute resolution processes
Sternlight, J. R., & Robbennolt, J. K., DePaul Law Review, 2022

The online courtroom and the future of jury trials
Gabriel, R., The Online Courtroom Project, 2021