Future Of Criminal Trial Post Pandemic


In the criminal judicial system, where rapid trials and in-person processes are constitutionally necessary, the interaction of COVID-19 social distancing measures and distant technology is having a mixed effect. There is now a backlog of criminal cases awaiting trial.

There are concerns about in-custody and out-of-custody defendants' access to phones, internet connections, laptops, private places, cameras, and smartphone applications, as both lack consistent access to technology and private spaces conducive to virtual proceedings, with access being more difficult for those detained in correctional facilities.



The physical indications and emotional depth of in-person conversation are apparently lessened via virtual platforms, therefore contentious hearings, especially trials, should not take place through virtual mode.

Since the transition to the use of virtual proceedings, it has led to extreme damage between the communications that take place between the counsel and the client thereby it is very challenging to indulge in confidential conversations, establish trust, share discovery, and stay in contact with the client. A criminal defence attorney's ability to communicate what is happening in real-time with their client throughout a process is important to their job. This function is harmed by holding court in virtual gatherings.


The Indian Judiciary's Initiatives


It's worth noting that the use of technology has been recognized by the courts in the case of State of Maharashtra vs. Praful Desai, in which the Supreme Court decided that the term "evidence" includes electronic evidence and that video conferencing can be used to capture evidence.  

It was also noted that technological advancements have opened the door to virtual courts that are identical to physical courts. Much before COVID-19, the National Green Tribunal began using video conferencing to take up matters before the Zonal Benches.


In the face of COVID-19's unprecedented and unprecedented breakout, courts at all tiers must reply to the need for social distance and ensure that court facilities do not contribute to the virus's spread.


In re: Video Conferencing Guidelines for Court Functioning the Supreme Court Pandemic took suo motu notice of the issue during COVID-19 and directed that courts take the necessary steps to guarantee that the legal system functions properly through the use of video conferencing technology.

Several High Courts have created criteria for online filing an urgent circumstance video conference sessions. Most of the country's courts are currently using video conferencing to do business, and it appears that this trend will continue for some time. Furthermore, every year, the infection poses a chance of recurrence.

Now, we should applaud the moves done by the Indian judiciary to begin hearing urgent matters or, in certain circumstances, hearing proceedings; nevertheless, the steps taken by the Indian judiciary are not harmonic in nature, and the separate Courts are employing the technology available to them.


However, there is no such thing as a standard procedure, and lawyers around the country face a variety of problems. One of the most fundamental examples is that the VC connection is shared with only the parties' Advocate on Record in various Courts, and the link cannot be shared further. Since the Advocate on Record isn't always the Arguing Counsel, the Arguing Counsel and the Advocate on Record must find a way to join the VC with the same link, which could result in social alienation. There are also additional issues when the Advocate on Record is from one state and the arguing Counsel is from another. 


There is no consistency in the use of digital video conferencing platforms by different courts. There is also certainty in terms of data security. The petition must also be supported by an affidavit, which must be attested; however, there is no provision for digital affidavit attestation at this time. Another issue could be a trial or evidence recording. The way we do cross-examination necessitates eye-to-eye contact, and other factors such as the witness's body language and others play an important role during cross-examination. Furthermore, simultaneously documenting evidence through this online approach will be a major challenge.


Conclusion:


The virtual hearing may not fully eliminate the physical hearing, and once the influence of COVID-19 has worn off, we will be required to attend the physical hearing once more. However, no one can predict the impact of COVID-19 or any other comparable circumstance, which is why now is the best moment to update the existing law and infrastructure to create a standardized protocol for virtual hearings

All of these pathways, without a doubt, need the use of technology, as well as technical improvements and modifications. But perhaps the moment has come for litigation to overcome their resistance to technology and embrace it. This can be made easier by providing ongoing software training to all players. It's past time we see this pandemic as a blessing rather than a hindrance; after all, adaptation is the most basic secret to the survival of the fittest.



The piece has been written from the Editorial Desk of Law Daily.



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