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Joseph A. Neuberger
Neuberger & Partners LLP
As Canadian courts struggle with how to return to normal functioning and deal with the backlog of trials after the pandemic, suggestions are being made on how to effectively modify the trial process. Technology such as video conferencing has allowed some proceedings to continue remotely but there are compelling reasons why remote hearings should be restricted to case management, certain pre-trial motions, or proceedings where there is no real factual contest, while trials with witness testimony must continue to be held in a physical courtroom.
Researchers have repeatedly found that human communications are altered when interactions are not “face to face,” including the problems with video conferencing, which remains inferior when there is a need for honesty or empathy. A Zoom trial is no replacement for a face to face examination of a witness, complainant or an accused person where critical issues must be decided on reliability and credibility. We already know as a matter of common sense, that behind a computer screen, people are more apt to not tell the truth.
An article published in Science Daily, called “Why People Are Better At Lying Online Than Telling A Lie Face-to-face” quoted forensic psychologist Michael Woodworth saying:
“When people are interacting face to face, there is something called the ‘motivational impairment effect,’ where your body will give off some cues as you become more nervous and there’s more at stake with your lie,” says Woodworth. “In a computer-mediated environment, the exact opposite occurs.”
Maintaining the human element is essential to a fair trial and instrumental to making accurate credibility assessments of witnesses. The right to a fair trial must trump the need for efficiency to deal with a backlog of criminal cases due to the pandemic.
There are other modifications and suggestions being considered, such as reducing juries to six people instead of twelve, which also runs the risk of reducing important human checks and balances and has caused concern among defence lawyers. While the number of jurors may seem arbitrary, it is important to maintain diversity in the peers who will be deciding the fate of the accused. Bias cannot be diminished or rooted out with a reduced jury panel. The method of selecting jurors has already fallen under attack in recent legislation that has harmed the ability to select a fair and balanced jury. Reduction of a jury to six persons will only further erode the right to a fair trial.
While the pandemic has caused an unprecedented disturbance to processing of cases through our legal system, there is good reason to be cautious about employing unprecedented measures to restore the functionality. Compromising the fairness of trials or conducting trials with technological methods that are known to increase the chances of dishonest testimony are certainly not concessions that can be made for the sake of expediency.