Future Of Criminal Trial Post Pandemic

By Shambhavi Goswami, University School Of Law And Legal Studies,
 GGS Indraprastha University, New Delhi.

In the criminal justice 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 addition, the courts have repeatedly permitted the witnesses, particularly the victims of sexual offences and human trafficking to present in court through the use of video conferencing technology. In addition, if the data of the cases that the judiciary has dealt with is examined, together with the modus operandi that has been adopted through virtual hearing, this does provide an optimistic picture, and it may be taken as a plan that can be transformed into a generalisation rather than an exception.

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 of 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.

Challenges Posed By Virtual Courtrooms 

However, there is no such thing as a standard procedure, and lawyers around the country face a variety of problems. Since the beginning of the courts, all of the staff has worked by hand due to the fact that they already struggle to make ends meet, lack of resources, and lack of digital literacy that affects them. Therefore, it would appear difficult and time-consuming to develop them into productive and proficient technological users under this new system. 

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  cross-examination is done 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. 

Additionally, the frequent technical issues that arise during video conferences tend to render the procedure unnecessary. Lastly, virtual hearings have limited the art of persuasion, which is at the core of the legal profession, and have somewhat mechanised proceedings as a result of a number of technological and psychological elements that are frequently out of our control


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 standardised 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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