By Saul Simmonds Q.C. & Caitlin MacDonald
The Evolution of Advocacy
The evolution of technology has created mechanisms that allow instantaneous communication. The internet and its development have established methods by which research and video discussions are taken for granted. FaceTime, Skype and Zoom have revolutionized the ability to have a form of face-to-face communication from anywhere within the reach of a cellular phone network.
Virtual meetings have replaced the need to travel across the world saving companies billions of dollars. The legal system has been slow to adopt the technological advances that are being embraced by other entities.
The Canadian Criminal Code has been amended to allow for witness testimony in accordance with Section 714. The Supreme Court of Canada by way of C-Span has allowed the populace to attend Supreme Court Hearings. The Court of Queen’s Bench Rules and the Court of Appeal of Manitoba have made efforts to adapt. We have each witnessed trials being litigated in the United States which held our attention and demonstrated both the strengths and flaws of cameras in the courtroom. The O.J. Simpson trial was watched throughout the world. It should be contrasted with the Queen v. Bernardo as it occurred in Canada at the same time. The American experience left many thinking that the O.J. Simpson trial was a fiasco. The Bernardo trial was kept in close check. The contrast is inescapable.
Balancing technological advances with basic trial rights, particularly for an accused facing the Criminal Justice System, is a complicated effort to consider both transparency and the rights of an accused. The Canadian Criminal Justice System has always prided itself on the importance of an accused’s right to face his accuser. This right has eroded over time. It is now facing a significant test as the COVID-19 pandemic has caused us to revaluate our view of the world.
The American Approach
Unlike the Canadian experience, the American 6th Amendment’s Confrontation Clause assures the accused’s right to be confronted by witnesses. The Americans have held face-to-face confrontation forms “the core of the values furthered by the Confrontation Clause.”
The American constitution entrenches the idea that a person finds it more difficult to lie when looking directly upon the person they are lying about. Face-to-face litigation enables the examination of the demeanor of the witness and the demeanor of the accused as he hears the story being told about them. It is considered, under American Law, to be an integral element in the assessment of credibility.
The late Justice Scalia, writing the majority opinion of the Supreme Court in Coy v. Iowa, explained the rationale for the constitutional requirement, namely:
“The perception that confrontation is essential to fairness has persisted over the centuries because there is much truth to it. A witness may feel quite differently when he has to repeat his story looking at the man who he will harm greatly by distorting or mistaking the facts. He can now understand what sort of human being that man is.”
In the concurring opinion of Coy, Justice O’Connor described how many situations may allow for an exception to that rule. O’Connor explained that when necessary, certain trial procedures could help protect important public policy interests. Those interests included protecting a child witness when testifying against their alleged abuser. However, it appears as though some courts are also beginning to argue that the COVID-19 pandemic may trigger the exception to the rule. The courts seek balance as they protect the safety of the public and prevention of the spread of the virus. The American experience has been based on a much more rigid acceptance of these premises.
The United States Supreme Court refined the Confrontation Clause issues in the decision of Maryland v. Craig. The court held that the Confrontation Clause does not prohibit a state from using one way, closed circuit television to capture testimony of a child in an abuse case. The court allowed a child witness to testify in a sexual assault case pursuant to a state statute that allowed criminal testimony. The court held:
“The combined effect of these elements of confrontation – physical presence, oath, cross-examination, and observation of the demeanor by the trier of fact – serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings”.
Nevertheless, courts in the United States are still concerned about the potential use of video conferencing at criminal trials. As the pandemic continues, the Tennessee Court of Appeals in State v. Dennis Lee Seale invalidated a trial court’s order allowing the prosecution’s out of state witness to testify using teleconferencing technology. The court ruled:
While we concede that two-way videoconferencing more closely approximates face-to-face confrontation, it is in no way constitutionally equivalent to the face-to-face confrontation envisioned by the Sixth Amendment. We respectfully but firmly disagree with the trial court’s finding that “if the software works the way it should work, will be, in my opinion, as good as the person being here live.” Further, two-way video conferencing allows for the witness to testify remotely and not come to the courthouse at all. The physical presence of the witness in the courthouse is, itself, a significant moment for the witness, during which any witness in a criminal proceeding understands the wide-ranging implications their testimony may have on the life of another. Foregoing in-person testimony potentially removes a witness’s understanding of the enormity of those implications. We are not inclined to remove the requirement of physical presence of a witness in the courthouse, save for instances in which the most necessary public policy considerations arise. We hold that face-to-face confrontation in Tennessee means simply that, face-to-face communication, unless there is some greater public interest that overrides the directives of our great state’s constitution.
The 21st Century COVID-19 pandemic has, by necessity, required courts to re-evaluate the ability of the justice system to provide trials and hearings through video conferencing. Meanwhile, there has been an ongoing evolution in Canadian Criminal Justice. Our system has seen numerous historical developments, including the use of KGB statements, testimony under Section 715.1 of the Criminal Code, video testimony and teleconferencing, including sentencings and bail applications under Section 515. This presents a significant change in our legal system, in which the accused who had once been entitled to be charged and tried by people he was able to look in the eye no longer holds true. While there is concern evident, in an effort to utilize remote hearings, these changes have slowly become the norm.
Witnesses are being called by video. Accused are appearing by video. Courts of Appeal throughout the country have begun to conduct remote hearings. The arguments against remote testimony in criminal trials, however, are numerous. It may violate the defendant’s right to be confronted with the evidence. Remote testimony cannot ensure truthfulness to the same extent as requiring the witness to testify live before the defendant.
Such testimony limits the information available to the defendant when assessing juror bias. Further, remote testimony as opposed to live testimony, does not provide the court and jury with the same opportunity as does live testimony to assess the demeanor and truthfulness of the witness. Only portions of the witness are on screen. There is a “vibe” that a trial lawyer picks up on in the courtroom.
Numerous studies have demonstrated the dangers of remote testimony as opposed to live testimony. Studies show that camera angle alone can have an effect on the perception of viewers. Mock jurors who observed video testimonies of children who testified on closed circuit TV (CCTV) rated their perception of the children’s statement, their appearance, and assessed their veracity. Children seen in long shot were perceived as more neutral and relaxed, while children seen in close up were perceived as having to think harder. They were therefore seen as less credible and viewers were less likely to sympathize with them. This demonstrates that presentation of a witness matters significantly as it may impact the jurors’ evaluation of that witness.
Further research into perceptions of videotaped individuals demonstrates that viewing a person on screen, affects how they are perceived by observers. A study conducted by Langstrom and Granhag (2010) examined what is referred to as the “Vividness Effect.” The research concluded that children giving courtroom testimony by CCTV were judged more negatively than children appearing live, when adults were asked to answer questions regarding the child’s appearance, credibility, and likability. The reason for this difference in perception was attributed to the Vividness Effect. Testimonies that are emotionally interesting, image provoking, approximate in a sensory and temporal-spatial context, are considered to be vivid. This type of testimony is perceived as more credible, is paid more attention, and is better recalled than non-vivid testimony. Live testimonies were perceived more vividly than CCTV testimonies due to the spatial proximity of the live witness.
A study conducted for the Journal of Psychology, Crime and Law further demonstrated the power that camera angles and perspective can have on viewers. Observers rated videotaped confessions as more voluntary if the camera focuses on the suspect rather than on the interrogator or on both individuals at the same time. The study further examined whether the amount of detail within the content of a confession interacts with camera perspective to specifically influence jurors’ assessments. Mock jurors viewed a videotaped confession within a murder trial that contained either a high or low amount of detail about the crime. The confession was recorded with the camera focused either on the defendant, on the defendant and detective equally, or solely on the detective. It was discovered the amount of detail provided by the suspect had no effect on jurors when the camera focused either on the detective or on both individuals equally. However, when the camera was focused solely on the defendant, a high rather than low detail confession led jurors to conclude that the defendant had a better memory for the crime, to rate his confession as more authentic and incriminating, and to view him as more likely guilty.
A study conducted for the Journal of Applied Cognitive Psychology examined how different presentation modes (live versus remote) affect an observer’s perception, veracity assessment, and memory of witnesses in their statements.
Three weeks after seeing a staged accident, six truth telling and six lying witnesses testified about the event. Mock jurors viewed the witnesses’ testimony either live or on video and rated their perception of the witnesses’ statements, appearance, and credibility. Live observers rated the witnesses’ appearance in a more positive way and perceived them as being more honest than did the video observers. Those who were telling the truth were rated as having to think less hard than liars. It is of note that observers were not better than chance in assessing veracity, regardless of the presentation mode. Live observers incorrectly believed that they had a better memory of the witnesses’ statements than video observers. Observers who had watched truthful statements showed a significantly better memory performance than observers who had watched deceptive statements.
Another experiment performed out of Arizona State University highlighted the effect of emotion on credibility, likability and poise. A sample of 193 participants used one of six variations of an eye-witness giving mock testimony. Each participant viewed testimony which varied by level of emotion (none, moderate or high) and frame (waist-up or head only). Participants then rated the witness using the Brodsky Witness Credibility Scale and Reyson Likability Scale. Emotion level was found to influence participant judgment of poise, however, to a lesser degree than judgments of credibility and likability. Participants tended to rate the witness as most credible, likable, and poised in the moderate emotion condition. The head only frame appeared to magnify participant judgements, especially in regard to credibility ratings, making the difference in the “no emotion/high emotion” and “moderate emotion” ratings more pronounced.
The results suggest that counsel may want to avoid the use of video testimony with certain types of witnesses where testimony might be highly emotional. A witness who is likely to display a moderate level of emotion may be viewed more positively over video testimony than a witness who is likely to display no emotion or high emotion.
Studies of this sort reinforce the fact that video creates new problems. It does not eliminate the problems. While we are often in a position in which we have no option but to call a witness by video, preparing a witness takes on a whole different process. Instruction to a witness to establish eye contact with a “camera” as opposed to a jury or a judge is a factor. Body language is often lost. The ability to watch a witness’ hand or general movements becomes problematic. This is separate and apart from the obvious problems regarding the ability to produce documents to a witness. How a video witness emotes is an issue.
Often a witness will be called upon to demonstrate something for the judge or jury. It may be that pieces of evidence must be presented to them for consideration. This too becomes a factor in the overall determination as to the viability of a witness. In a recent murder trial, R. v. Cameron, a firearms expert was called upon to demonstrate the workings of a handgun. During cross examination, and for the jury to see, the expert operated the unloaded weapon. It then fired in a mode the expert testified it was unable to. The jury witnessed the operation of the handgun which supported the defence theory. This demonstration would not have been observed in a headframe virtual screen.
It has long been the case that television executives, producers, and agents look at what is often referred to as the TV-Q. That is the valuation of how a person is perceived on the television screen factoring in their brand or celebrity. Movie screens are different. Perception on a large screen has a much different effect.
Tone and clothing have been known to make substantial differences. Looking down at documentation can be considered to be evasive. Viewed as a whole a person presents much differently than they do when only their head and shoulders are on camera. The use of the mute button or video button must be taught, in some systems, such as Zoom.
Does the person touch their face often, flip their hair, or have a tic or a mannerism that does not present well on video? Does facial hair in close up have an effect? Does the witness hold their chin, tilt to one side or another, move within the frame, avert their eyes, or lick their lips? All of these elements are amplified on a close focus video.
Racial or ethnic minorities may be perceived differently. Accents or the need for translators or interpreters can severely impair the ability to utilize video conferencing. The complications of all of these factors together can detrimentally affect the presentation of a witness or can effectively curtail the scope and nature of an examination.
While video can assist in communication with a witness, client, or expert, it is still no substitute for face-to-face meetings. Some litigants may not have the resources to bring a witness to court. Proximity can affect the sense of trust or communication. Times are changing. In a recent interview Dr. Anthony Fauci, the American pandemic expert opined that the handshake, which is often an important element in establishing a bond between individuals, may be a thing of the past.
The need for transparency and access to the public is also a problem in the pandemic era. Courthouses are not as open and this combined with the inability to have a witness turn up in the courtroom for the purposes of examination or cross-examination further distances the accused from the justice he seeks.
It is often the case that in a jury trial judges will remind themselves of what has become part of a standard charge, namely:
“You should decide whether you believe all, some, part or none of what each person had to say, and how important that testimony was. In making that decision, I suggest that you ask yourself a few questions: Did the witness impress you as honest? Did the witness have any particular reason not to tell the truth? Did the witness have a personal interest in the outcome of the case? Did the witness have any relationship with either the Crown or the Defence? Did the witness seem to have a good memory? Did the witness clearly see or hear the things about what he or she testified? Did the witness have the opportunity and ability to understand the questions clearly and answer them directly? Did the witness’ testimony differ from the testimony of other witnesses? These are a few of the considerations that will help you determine the accuracy of each witness.”
Judges may now need to address either in their reasons or in their jury charge, that a particular witness gave evidence on video. Their evaluation of the effectiveness or veracity of the witness may also need to be addressed. The court may need to tell a jury that the fact a witness was not in the courtroom does not lessen the value of their evidence, but how can the judge address all of the screen factors? This is perhaps most important when there are dueling experts or opposing witnesses, some of whom testify from the witness box while others do so remotely. The playing field may not be level.
The assessment of credibility is still the backbone of the criminal justice system. Some witnesses do not have the skill set to appear effectively on video. This is a consideration for all counsel and should be a factor in determining whether to agree to or oppose the use of video testimony.
The evaluation must be done on a case by case basis as well as on a witness by witness basis. The nature of the cross-examination anticipated for the witness will also enter into consideration. There are some witnesses who can be effectively cross-examined on issues that are not particularly crucial to a case while others are integral.
These are just some of the factors that enter into the equation of video testimony. There are many more that will have to be factored in by each lawyer as they make their determination. Some of us are pacers, it becomes very difficult to stand in one location behind a podium to effectively examine. Video does not allow for the kind of movement that some of us require in a courtroom. It means the lawyers must also adapt.
The presentation of evidence or articles in a criminal case can become crucial, requiring the witness to attend. These factors may also enter into an R. v. Jordan consideration, that is, whether or not the accused gets his right to a timely trial.
Cost is always a factor for an accused, particularly when experts are being sought. Now experts throughout Canada, the United States, and the world can be accessed to testify in cases involving areas of expertise that are esoteric. Video effectively makes the world smaller.
Balancing all these factors on a case by case basis creates additional strategic decisions that each lawyer must make in conjunction with the client. As the technology improves and we seek more cost effectiveness, the reality of teleconferencing and telecommunication will continue to advance along with the changes to the criminal justice system. Whether we like it or not, we are all going to have to change with it.
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Jeffrey J. Gindin, QC
Jeff is one of the founding partners of this firm and and has been a trial lawyer since 1971. He will fight tirelessly for his clients with passion, skill, and creativity in order to achieve the best possible results.
Richard J. Wolson, QC
Richard Wolson is a skilled, bold, and relentless cross-examiner who represents his clients with focus and determination.
Saul B. Simmonds, QC
Practising criminal law since 1980, Saul is an experienced litigator with deep knowledge of Canadian law.
Evan J. Roitenberg, LLB
Evan is deeply committed to protecting the rights of the accused and is routinely called upon to lecture and present on the art of cross-examination.
Laura Robinson, BA, LLB
Laura has experience dealing with all manner of offences, which has included violent crimes, property offences, drug offences, driving offences, and weapons offences.
Daniel A. Wolson, BA, LLB
Daniel strives to get the best possible results for his clients, having secured acquittals at all levels of court throughout Manitoba.
Kevin Minuk, BA, LLB
Kevin Minuk received his call to the bar in 2014 and has been practising exclusively in the area of criminal law.
Shimon R. Segal, BA, JD
Shimon was called to the bar and hired as an associate in 2015. His practice has grown to include immigration law and criminal law.
Adam R. Hodge, B.Comm (Hons), JD
Adam Hodge received his call to the bar in May 2016 and practises primarily in the area of criminal defence.
Caitlin MacDonald, BA, JD
Caitlin represents clients facing all types of criminal and quasi-criminal charges and strives to provide expertise, guidance, and compassion.
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