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[I have been writing about the many ways video conferencing can save time and energy, while serving as a worthy alternative to in-person meetings. Usually it means that video conferencing can make travel unnecessary and save money. But in some cases travel involves much more than air fare and air pollution. Take prisoners in jail or crime suspects, for instance.

That's why I have long been following the slow and reluctant adoption of video conferencing technologies by the judicial system, around the world and in Israel. And that's why I've asked fellow blogger and Cyber law attorney Jonathan Klinger to elaborate on this issue.]

Many technologies are slowly being adopted by the judicial system and are deployed in different locations - from the court room to state jails. Document cameras, which project paper evidence on display screens, emails that replace traditional “snail mail”, and even the use of video conferencing systems. The options provided by technology are becoming more and more attractive.

Recently, the Israeli Supreme Court denied the Israeli Bar Association’s petition to cancel the (temporary) statute that allowed certain criminal procedures to be held via video conferencing (HCJ 1548/07, Israeli Bar v. The Minister of Homeland Security, PDF in Hebrew).

This statute, approved on January 2007, was meant to examine the possibility of implementing video conferencing as a natural part of the criminal procedure. During the pilot, which was designed to last one year, suspects of certain crimes had the prerogative to choose whether the discussion regarding their plea to be released from arrest (or the police’s request to extend that arrest) would be done via video conferencing or physically in front of a judge.

In cases where the suspect chose the video conferencing alternative, he was brought to a special hall in the house of detention (or jail) and equipped with a video conferencing system. Such a system was also installed in the court room. This way the suspect (and his attorney) could see what was going on in the court room and vice versa.

Video Conferencing system in the Forsyth County Detention Center.
Source: Forsyth County website

The Israeli Supreme Court decided that the natural right of Habeas Corpus - the primary right of any suspect to be brought before a judge in order to be released from an unlawful arrest - could be waived by the suspect’s (free) will. In other words, it is OK for the state to offer a suspect the video conferencing alternative.

Nevertheless, unlike the civil procedure (which already allows video conferencing as an integral part of the civil trial, as a means to hear witnesses), the criminal procedure bears many features that should be considered when a suspect waives his (physical) Habeas Corpus right.

Video Conferencing in the Criminal Procedure

Any person has the right to be brought before a judge to determine if his arrest was illegal or unnecessary. The Supreme Court found that the video conferencing alternative was a “constitutional compromise” that is legal, as “there was no constitutional harm to the suspect’s right that was tangled by using the video conferencing method”. After all, the video conferencing alternative was meant to reform and facilitate both the suspects and the law enforcement system, in different respects.

The video conferencing alternative indeed relieved the law enforcement system. Suspects no longer have to be transported to the court room, with proper means of security. The security risk, the logistics overhead, the transportation costs - all are reduced, if not canceled.

Department of Corrections bus in Brooklyn (CC)

Video Conferencing is already used widely around the world in such cases, and the debate regarding its use is going on everywhere. Just recently an Illinois Supreme Court ruled that video conferencing systems are still not adequate to “simulate actually being there”, and decided that defendants will appear in person in criminal hearings.

On the other hand, in India, the use of video conferencing facilities to take depositions from witnesses is no longer an unusual event in trial courts. In fact, India has undertaken a nationwide project to connect jails and district courts to a “tele-justice” system. In Singapore, a “Tele-visit” system even allows jail inmates to be visited via video conferencing.

Implications of Video Conferencing on the Criminal Procedure

The technology may be out there, and using it may be simple, but the legal issues associated with remote testimony are by no means as simple. Attention and sensitivity have to be given to the effect that this technology has on the suspects and their procedural rights.

Allegedly, the suspect’s presence in the legal hearing via the video conferencing system allows him to “participate fully in the hearing and practice his procedural right”. But it is my belief that the Israeli Supreme Court failed to understand that participation via video conferencing has certain problems (and that’s even before we start to discuss the constitutional aspects):

• When the suspect is not physically present in the court room, he can’t see physical evidence the way the judge or the attorneys present can. Since in some cases this is the first time he can legally observe this evidence, this strongly effects his impression.
• A suspect sitting down before a video camera, watching the judge over a big display is experiencing a certain amount of anxiety that doesn’t exist in the “original” alternative.
• A suspect may feel distant from the judge and not able to address his compassion, as the judge may treat the suspect as we treat any other person we see on TV every day.
• And what about the attorneys? If the suspect remains in his cell or anywhere else but the court room, where will his attorney be? If the attorney is with him, everything discussed so far regarding the suspect applies to his attorney. If the attorney is present at court, then the solution is only partial (security - yes, cost reduction - not totally) and the bond between client and attorney is hurt.
• Also, as the law enforcement system itself has an incentive to coerce suspects to participate in the pilot (and save public money and time), judges may apply different standards to different suspects even without being aware of it (but this may be just my hindsight bias…).

So implementing video conferencing in criminal procedures may also have implications for the suspect’s (or defendant’s) ability to get a fair hearing (and due process as a result). For example, following the intervention of the Adalah Legal Center for Arab Minority Rights in Israel, the State’s Attorney decided to stop the practice of operating a court within an Israeli prison.

Menashe Kadishman’s “Akedat Issac” in front of the Tel Aviv Court House (CC)

The same reasons that were found in the above case apply in ours: Justice has to be seen, not just made. A court within a prison, as open as it may seem, still keeps justice away from people. And I’m afraid the same goes for justice over IP, as appealing as it may seem.

Jonathan J. Klinger is an Israeli Cyber law attorney, Jonathan holds an LL.M in commercial law. He regularly blogs at “Intellect or Insanity” and “Black Labor” and writes legal commentary for the NRG and Shakoof websites. Jonathan is also spokesperson of the Israeli Blogger Coalition Against Censorship and a board member at Eshnav, the Israeli Association for Smart Internet Use and Education. He can be reached at info@jonathanklinger.com.