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Live trial or remote trial?
  • Aug 2, 2021
  • Latest Journal

The pandemic, the virus Covid 19, has brought a huge change in our lives to all of us. Even the trial in the court has taken a different form. How has this affected the expert? Does he prefer the old system, when everybody turns up at the court and gives oral evidence, or the new system, remote hearing, all done electronically through the computer? As “normality” gradually returns what will the practice be? A return to the old ways? Or remaining with the new ways? Or a combination of the two? What would the expert prefer? The decision will be taken by the judge. He is concerned that a fair trial takes place. The lawyers will bring their influence to bear. The experts may be asked for their opinion, and anyway they should indicate their opinion as they are by definition very significant witnesses. An expert might even indicate that he would only participate in one method and not the other, though that would be unusual. He will normally have to go along with whichever method is decided upon, and therefore he should ensure that he is equally competent and confident and effective in either situation.

The remote system has been shown to have many merits. The expert may indeed prefer the remote system. He remains in his study at home, or in the office, or the laboratory. He can manage complicated documentation easily. He is of course thoroughly conversant with the technology, and relaxed and comfortable. Indeed he may well be able to make a better job of giving his evidence. He does not have to dress up (though he looks properly dressed), to travel, and to wait about in the waiting room.

Judges and lawyers are often supportive of the remote system. They have mastered the technology. The trial runs smoothly. Everybody follows the legal practice rules. The procedure remains acceptably dignified. Everybody acts responsibly. The judge remains firmly in control. The environment remains neutral. The judges have said that they can even get a better view of the witness, full face on the screen, than sideways on at some distance in an old fashioned court room. So we may expect remote hearings to continue in some shape or form in the future.

However, there are some potential disadvantages in the remote system that may affect the expert. Under the old system in the courtroom he may be perfectly at ease. He may by character and personality respond well to the presence of people and the human interchange. The challenge and the stimulus bring out the best in him. Whereas the comparative informality of the remote system is not his scene, not to his liking. He may feel uncomfortable in an artificial setting. He is very much a people person. As a young and aspiring forensic expert he needs and wants the courtroom experience in order to develop his skills as an expert witness. He is simply tired of living his professional life on the computer screen.

The judges and the lawyers have pointed to the actual and potential disadvantages of the remote hearing. The traditional authority, solemnity, dignity and formality of the traditional court may be diminished. We remember, in another context, how Archbishop Welby was criticised for delivering a public sermon from his kitchen. Public confidence may decline. Public access may become more difficult. The drama of the forensic conflict may be lost.

The purpose of the trial, in whatever form it takes, is not to make the expert “comfortable”, indeed if anything the opposite. He must expect to be subject to challenge, that is a fundamental feature of the adversarial system. The good expert is the expert who stands his ground, despite tough challenge, and persuades the judge.

With the best will in the world technology can and does break down, and a remote hearing can be severely disrupted. The witness at home can inadvertently disturb the proceedings when the baby cries or the dog barks or there are other extraneous noises.

The judges and the lawyers have said that from seeing just the head and shoulders they do not get the feel of the “body language” of the witness that can be obtained in the live courtroom. All agree that if the integrity or credibility of a witness is in serious issue – which must be rare in the case of a professional expert witness – then the remote hearing is not appropriate. Fundamental issues such as integrity or credibility need to be resolved in the courtroom.

So the expert witness should seek experience in both systems, and learn to cope effectively in both. But if he prefers one system to the other then at least he should raise the matter with the instructing solicitor, so that so far as possible the to him more agreeable system is followed.

© Alec Samuels