"OK Glass, and may it please the court." Digital eyewear and other methods of digitally participating in remote events could easily revolutionize the practice of litigation.
Public speakers have traditionally honed their presentations by performing in front of a mirror, but digital eyewear will provide lawyers with a whole new level of self-analysis. The personal injury law firm of “Fennemore Craig is … considering using Glass with expert witnesses, or putting Glass on ‘jurors’ in mock trials to see court presentations from that perspective.” The lawyers could then analyze the footage to determine how well a presentation is playing to the jury.
Other trial lawyers plan to use the technology as a teaching or client-relations tool. “Just before the clerk calls our case,” speculated trial lawyer Mitch Jackson, “I command Glass to ‘go live’ and a real time audio and video feed displays back at the office and private Youtube, Google Hangout, and Spreecast channels so that the new associates can watch the law and motion and oral argument from our various offices across the U.S. A private link is also shared with the clients so they can watch the procedure poolside from their hotel in the Bahamas where they are vacationing.”
Presumably, lawyers outside the office could also watch the argument in real time (on their own headset, of course), and offer the in-court attorney real-time input that affects the outcome of the hearing. Similar methods are already being used to give medical students a unique, first-person perspective of surgeries from the surgeon’s own perspective, and to allow treating physicians to collaborate in real time. Applied in the courtroom, such techniques could ultimately save clients significant sums on travel expenses and allow greater collaboration at times when it could make a critical difference in the outcome of an argument.
Telepresence in the courtroom may also expand the concept of “testifying in court.” Today, when a witness gives testimony outside of the courtroom, there are only two commonly-used methods for preserving it: having it typed by a stenographer or video recorded. Adding the ability to record and play back testimony in three dimensions, however, would certainly add to its persuasive effect in the courtroom. By the same token, witnesses who now (in rare circumstances) are allowed to testify in court by means of live videoconferencing could instead someday soon “appear” on the witness stand by means of a life-size, interactive hologram, a device frequently seen in Star Wars films.
Without a serious shift in legal precedent, however, telepresence testimony is not likely to be widely adopted in criminal proceedings. At least four of the United States Courts of Appeal have decided that criminal defendants must be physically present in the courtroom when being sentenced, regardless of how effective videoconferencing technology may be. “Being physically present in the same room with another has certain intangible and difficult to articulate effects that are wholly absent when communicating by video conference. As written, the Rule [43(a) of the Federal Rules of Criminal Procedure] reflects a firm judgment in favor of physical presence and does not permit the use of video conferencing as a substitute,” wrote one such court in 2011.
Similarly, the Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." This bedrock provision of constitutional law is already posing obstacles to the use of videoconferencing in criminal trials, and would likely also hinder the use of telepresence technology. Recent Supreme Court case law interpreting the Confrontation Clause, however, has suggested that courts may soon begin opening the door a little wider to the possibility of “[using] remote testimony as a method to satisfy the Confrontation Clause when a witness cannot be present at trial.”
