In defense of live hearings

The premise of this writing is that evidentiary hearings, unlike pretrial hearings, status conferences, settlement conferences, and law and motion proceedings, give rise to due process rights that are profoundly compromised by the current trend toward online proceedings. While online hearings save time, are less costly, and for some, are more convenient, the move to online evidentiary hearings substantially undermines procedural protections that have been traditionally preserved by in-person proceedings. We should consider the consequences carefully before abandoning this tradition in favor of the uncharted frontier of virtual justice.

Due Process

The fundamental requirement of due process is the opportunity to be heard "at a meaningful time and in a meaningful manner." (Mathews v. Eldridge (1976) 424 U.S. 319, 333.) Given the current trend toward online judicial proceedings, many question whether virtual evidentiary hearings can afford a sufficiently meaningful opportunity to be heard to satisfy due process. There is substantial evidence to suggest they do not.

The traditional evidentiary hearing process

California courts have repeatedly held that "'when governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals, it is imperative that those agencies use the procedures which have traditionally been associated with the judicial process.'" (Oberholzer v. Commission on Judicial Performance (1999) 20 Cal.4th 371, 391, fn. 16, quoting Hannah v. Larche (1960) 363 U.S. 420, 442.) By tradition, evidentiary hearings have taken place in a physical hearing room, which reinforces traditional hierarchies of power considered necessary to justify the authority of the law. The setting is adorned with symbols of justice - the judge in a black robe behind an imposing bench, American flags, seals, lawyers stationed at tables on either side, the witness stand next to the judge, facing the courtroom and the accused. These accouterments convey to participants that they stand where solemn proceedings occur and consequential decisions are made.

All of this is lost in a virtual hearing. Participants appear from the comfort of their homes, in their slippers, with their pets lounging blissfully at their feet. The judge appears from a remote location, likely his or her home office, where family photos and personal artwork are on display. Communication between the judge and the lawyers, parties, and witnesses is virtual, accomplished through remote technology from various distant locations; the nuance of live communication is starkly absent. The hearing room is reduced to a small, two-dimensional screen. The formality of the proceedings and traditional symbols that represent the solemnity of our system of justice are decidedly absent at a virtual hearing.

More troubling, online adjudicatory proceedings do not adequately protect the well-settled constitutional and statutory rights to a public hearing, confrontation, and assistance of counsel, and seriously undermine the ability to assess witness credibility.

Public Hearing

The Government Code provides that administrative evidentiary hearings shall be open to the public, unless otherwise prohibited by law. (Gov. Code, § 11425.20.) Open public hearings serve to avoid the specter of corrupt, unfair, secret judicial proceedings, and allow the community to bear witness; citizens can look the judge in the eye to express community concern or support, and reporters can shed light on judicial proceedings. Arguably, videoconference hearings can expand public access if broadcasted on a publicly accessible video platform, like YouTube. But broadcasting public hearings raises practical and privacy issues, including the specter that testimony could be readily recorded and shared, or images of participants could be widely disseminated without their permission or knowledge.

Furthermore, virtual public access is passive, at best. Distant proceedings viewed on a flat screen do not serve as a check on judicial proceedings in the way originally intended. As the Fourth Circuit Court of Appeals appropriately observed, "Virtual reality is rarely a substitute for actual presence and even in an age of advancing technology, watching an event on the screen remains less than the complete equivalent of actually attending it." (Rusu v. INS (4th Cir. 2002) 296 F.3d 316, 322.) Were that not the case, live concerts, sports events, and theater would give way to virtual performances, which are more accessible and less costly. But live performances continue to draw huge crowds, despite the expense, long lines, traffic, and parking headaches, because people prefer the robust, three-dimensional experience that actual presence offers. The point is, virtual hearings are a knockoff of the real thing; they cannot offer the nuanced, vivid experience of actual presence, and therefore, are unquestionably inferior to live hearings.

Right to confront one's accuser

The Confrontation Clause guarantees the right to cross-examine opposing witnesses in criminal trials. (Crawford v. Washington (2004) 541 U.S. 36, 61 ("To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination."). The Government Code extends the right to cross-examine opposing witnesses to formal administrative hearings. (Gov. Code, § 11513, subd. (b).)

A proper testing of opposing witnesses requires that witnesses appreciate the gravity of the proceedings. Some would argue that videoconference hearings sufficiently protect the right to confrontation for purposes of administrative proceedings and civil trials because the accused has the right to cross-examine adverse witnesses, albeit remotely. But allowing adverse witnesses to testify from a remote location, comfortably separated from the judge, the lawyers, the accused, and the public, significantly dulls the gravity of the proceedings. In fact, there are numerous precedents establishing that the right to confrontation demands a face-to-face meeting with the judge and witnesses. (See generally Fern L. Kletter, J.D., Conditions Interfering with Accused's View of Witness as Violation of Right of Confrontation, 61 A.L.R.7th Art. 2 (Originally published in 2021).

While most of these precedents address the right to confrontation in criminal trials, the principles of rigorous cross-examination apply equally to administrative hearings and civil trials, particularly where fundamental property interests are at stake and witness credibility is outcome determinative. Scholar Andrew Guthrie Ferguson points out in his article, Courts Without Court (2022) 75 Vand. L. Rev. 1461 (hereafter Courts Without Court), 1515-1519:

"As a historical matter, confrontation involved a process of truth finding through the crucible of live, in-person testimony and cross-examination in a courtroom. The open question is which part of that live process is critical ...and which part might allow online substitutes. For some justices, what mattered for confrontation was not the cross-examination but the face-to-face accusation - the requirement of an accuser to look into the face of the defendant and state their claim. Whatever else it may mean in addition, the defendant's constitutional right "to be confronted with the witnesses against him" means, always and everywhere, at least what it explicitly says: the "right to meet face to face all those who appear and give evidence at trial." [Citations omitted.]"

Professor Ferguson notes that online hearings change the nature of face-to-face human confrontation, and that computer screens present both symbolic and practical concerns:

"From a defendant's perspective, the accuser is able to avoid looking into the eyes of the accused, therefore, also avoiding the face-to-face emotional moment thought to check false accusations. Mediated by a screen, the accuser can now look away. In addition, the tools of cross-examination are less powerful online. The defendant's opportunity to confront, challenge, counter, and probe a witness's story is made more difficult without physical proximity. The drama of an expectant pause when faced with an inconsistent statement is just less powerful online. While similar questions can be asked, the physical nature of confronting a witness with a false statement or impeaching fact loses effect with a virtual medium. In addition, logistical hurdles of showing impeaching documents, marking them as exhibits, and making sure all of the players are on the same page make the process less dramatic, and more time-consuming. The jury is also limited in its ability to watch the witness, the questioner, the judge, and the defendant through a video screen all at the same time. Not only are individual reactions harder to evaluate online, but the body language of the witness is limited to facial features." (Id., at pp. 1516-1517.)

The computer screen removes the stage-like pressure and tension of trial. The full picture of the human reaction to evidence is diminished and the structure of observation, evaluation and scrutiny is distorted. (Id. at p. 1512.) As Justice Antonin Scalia observed in 2002, when he opposed proposed federal rule changes that would have allowed video testimony when a witness was unavailable, "Virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones." (https://web.archive.org/web/20100409232731/http://www.uscourts.gov/rules/CR-26b.pdf.) The same holds true for confrontation rights in the administrative and civil trial setting.

Assistance of counsel

It is well-settled that individuals who are deprived of a property interest protected by due process have a legal right to an evidentiary hearing that meets minimum procedural requirements, including the right to be represented by counsel. (Fuentes v. Shevin (1972), 407 U.S. 67; Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194, 208; see also Cal. Gov. Code, § 11509.) Such hearings possess the critical attributes of a quasi-judicial proceeding, where competent legal counsel plays a critical role. (Basurto v. Imperial Irrigation Dist. (2012) 211 Cal.App.4th 866, 870-871.) But in a virtual hearing, as Professor Ferguson points out, the lawyer's role is compromised:

"The impediments to effective assistance of counsel for online trials involve practical, technological, and human challenges. Representing a client involves interpersonal communication, trust, and connection. Building trust, learning about the case, investigating facts and mitigating circumstances, offering legal counsel, explaining legal terms, and addressing questions have all traditionally been done in person. The hard issue is when court goes online, where does the lawyer go? Are they in their office, with their client at home, or somewhere else?" (Courts Without Court, supra, pp. 1519-1520.)

Attorney-client communication during virtual hearings is hamstrung, particularly when the attorney and client are physically separated. Even when they are in the same building, they often need to use separate rooms and computers to avoid technology glitches like echoing that can occur when their computers are side-by-side during a videoconference. The inability to whisper or pass notes makes it difficult to adjust trial strategy based on real-time developments that occur during the hearing.

Differences in internet access and familiarity with technology can also undermine attorney-client communication. For example, a recent study conducted by scholars Alicia Bannon and Douglas Keith revealed that some courts make virtual breakout rooms available for attorneys and clients to access in the middle of proceedings, while others instruct attorneys to simply send text messages to their clients if they need to communicate. Some attorneys felt text messages could be sufficient, while others claimed they would never willingly conduct a full trial without being next to their client. Where courts did provide breakout rooms, some attorneys reported being reluctant to interrupt the hearing proceeding to access them. (Alicia L. Bannon, Douglas Keith, Remote Court: Principles for Virtual Proceedings During the Covid-19 Pandemic and Beyond (2021) 115 Nw. U. L. Rev. 1875, 1893-1894.)

Studies also suggest that judges may not be fully aware of the extent to which videoconferencing is impacting attorney-client interactions. In 2020, Professor Jenia Iontcheva Turner surveyed state and federal judges, prosecutors, and defense attorneys in Texas regarding their experience with remote court proceedings and found that 63% of defense attorneys said remote court interfered with attorney-client communication, but only 21% of judges agreed. (See Jenia I. Turner, Remote Criminal Justice, 53 TEX. TECH L. REV. 197 (2021) (manuscript at 6), https://papers.ssrn.com/a=3699045). Again, while these studies deal primarily with virtual criminal proceedings, the issues are no less salient in administrative hearings and civil trials where due process guarantees the right to counsel. Clients separated from their attorneys are at a disadvantage.

Witness credibility

Perhaps the most grievous shortcoming of virtual hearings is their debilitating effect on the ability to assess witness credibility. A growing body of scientific evidence shows that participants in virtual hearings perceive testimony by videoconference markedly different from live testimony. Recent behavioral and psychological studies have found that key differences between the two forms of communication - the lack of eye contact and the difficulty of detecting nonverbal cues - have profound impacts on the cognitive and emotional response of the listener and the perception of the speaker's credibility and guilt. (Aaron Haas, Videoconferencing in Immigration Proceedings (2006) (hereafter Videoconferencing) 5 Pierce L. Rev. 59, 61.) In particular, nonverbal communication is severely diminished in virtual hearings, and the consequences are compelling. Numerous studies have shown that videoconference technology fundamentally alters the nonverbal behavioral cues that are a crucial element of successful communication. These distortions make it harder for parties to establish trust and credibility, connect emotionally with the judge, develop positive impressions, and ultimately, convince the judge of the validity of their arguments. See e.g., Mark Federman, On the Media Effects of Immigration and Refugee Board Hearings via Videoconference, 19 J. REFUGEE STUD. (2006); David McNeill, Catchments and Contexts: Non-Modular Factors in Speech and Gesture Production, in LANGUAGE AND GESTURE 312 (David McNeill ed., 2000).

Since Sigmund Freud first expressed his opinion that body language and other nonverbal communication could reveal the true feelings that people try to hide, many studies have confirmed the crucial role that nonverbal communication plays in the way people communicate and understand. After a decade of study, Albert Mehbrabian, UCLA Professor Emeritus of Psychology, observed that communication consists of three elements: words, tone of voice, and body language. Mehbrabian concluded that words account for 7% of meaning, tone of voice for 38%, and body language for 55%. For meaningful communication, these different elements need to support each other. If they appear to be in conflict, the element with the higher importance is taken as the correct one. In other words, if a speaker's words appear to conflict with his body language, the audience believes that the body language accurately portrays the speaker's feelings and that the words are inaccurate. (Albert Mehrabian, Nonverbal Communication 178 (1972).)

It is well-established that emotions can be expressed through voice pitch, eye gaze, posture, touching of hair, and many other nonverbal signals and gestures. In January 2023, Neuroscience News reported a study that analyzed the interactions between 62 mother-child pairs, both face-to-face and virtually. The children were ages 10 to 14. Utilizing a process that can simultaneously scan brain activity in multiple subjects, known as hyperscanning, researchers found that face-to-face interactions elicited nine significant cross-brain links between frontal and temporal areas of the brain, whereas remote communications elicited only one. (Guillaume Dumas, Technologically-Assisted Communication Attenuates Inter-Brain Synchrony, NeuroImage 264 (2022) 119677.) Clearly, communication and understanding are diminished in a virtual world. If paralanguage is crucial to communication, and the video medium distorts the messages given by these signals and gestures, then the move to virtual hearings is fatally flawed:

"The immediacy of a living person is lost with video technology. Video conferencing is not the same as actual presence, and it is to be expected that the ability to observe demeanor, central to the fact-finding process, may be lessened in a particular case by video conferencing. This may be particularly detrimental where it is a party to the case who is participating by video conferencing, since personal impression may be a crucial factor in persuasion." (Videoconferencing, supra, p. 81.)

The problem is exponentially worse when the judge is the trier-of-fact. During a virtual hearing the judge must simultaneously run the hearing, mark and keep track of exhibits, monitor recording equipment to ensure that the record is properly preserved, rule on objections and admissibility of evidence, monitor two computer screens (one for evidence, the other for testimony), take notes, and scrutinize the witness to assess credibility. Inevitably, there are technological glitches that intermittently disrupt and delay the proceedings, many of which the judge must personally address. There is no opportunity to observe the witness and the accused concurrently, or establish direct eye contact, so the impact of cross-examination is diminished. Given the numerous tasks, interruptions, distractions, and delays that necessarily occupy the judge's attention during a virtual hearing, and the inadequate opportunity to observe body language and other crucial elements of communication, the judge's ability to accurately assess and fully appreciate whether the witness is telling the truth is severely handicapped.

Conclusion

Ultimately, the evidentiary hearing/trial process is at the core of the social contract that ensures a civilized society. It is a fundamentally human undertaking that features the uniquely human capacity to collaborate, empathize, persuade, challenge, deceive, understate, exaggerate, coerce, probe, confuse, clarify, explain, justify, accuse, condemn, and absolve, all of which require complex cognitive skills and active social engagement. Relegating evidentiary hearings to a laptop, where the courtroom is reduced to the confines of a flat screen, dulls the gravity and formality of the proceedings. The trier-of-fact is physically remote and therefore, handicapped. Attorney-client communications are curtailed, and no actual social engagement occurs. In doing so, we deprive the accused of a meaningful opportunity to be heard, which is the bedrock of due process and undermines the social contract, dealing a crushing blow to the very backbone of our system of justice.

The views expressed are my own, not those of the State Personnel Board.