Even online, body language in court still matters

In 5 seconds Some people see virtual trials as the future of the justice system. UdeM criminologist Vincent Denault looks at how judges view the situation and how it could be improved.

In the spring of 2020, everything changed, Many people’s lives moved online. Court trials were no exception.

“The wheels of justice had to keep turning despite the pandemic,” recalled Vincent Denault, a professor in Université de Montréal’s School of Criminology. “But now that the pandemic’s over, should virtual trials continue? We need a better overview of their effects.”

To explore the challenges of online justice, Denault surveyed Quebec judges about their experiences during the COVID-19 pandemic. In fall 2020, he sent them an online questionnaire about the influence of extra-legal factors in virtual trials.

The questions covered a variety of topics such as the credibility and preparation of witnesses and the impact of the pandemic. Fifty-six judges responded. In an article in International Criminology, Denault examines their answers to questions about the influence of non-verbal factors in court.

Not less, just different

Vincent Denault

Denault has long been interested in how prejudices and stereotypes can shape interpretations of the non-verbal communication that happens in a courtroom – this is, everything other than words, from the atmosphere in the room to the punctuality and demeanour of witnesses.

“Not looking someone in the eye isn’t a reliable sign that you’re lying, but beliefs like that can decide the outcome of a trial,” Denault said.

And online, contrary to what one might think, non-verbal communication doesn’t disappear. “Generally speaking, there’s no less non-verbal behaviour in virtual trials – it’s just different,” said Denault.

The differences are wide-ranging. For example, in a videoconference, only part of the judge or a witness is visible; one doesn’t see the whole person. People also experience a trial differently in a courtroom setting, which lends a certain gravitas to the proceedings.

“When you enter a courtroom, the environment, the decorum, the passage of time and even the smells influence your experience,” Denault said. In a virtual setting, some non-verbal cues are lost but others are added, such as uneven audio and video quality and different backgrounds.

One might be surprised to see someone testify from their car, Denault said, "but for some people, that’s the quietest place they can find."

Similarly, judges may be affected by their environment when presiding over a trial on their personal computer. “All this can affect the judge’s perception,” said Denault.

Better access?

Virtual trials predated COVID-19 but the pandemic normalized them. Some argued they actually  increase people's access to justice.

“We need to dig deeper,” said Denault. “Yes, in a virtual trial you are heard by a judge, but you don’t necessarily have the same sense of being listened to or the same experience.”

Many factors must be weighed when deciding whether to hold a trial virtually. “The conversation must go beyond the usual arguments about cost and accessibility,” Denault stressed. For example, some respondents to his survey said that the complexity and urgency of the case should be taken into account.

While the majority of judges reported positive virtual experiences, they also said—and Denault agrees—that anecdotal evidence is not enough. The drawbacks of virtual trials, such as the challenges they can pose for people who are not tech-savvy, require more attention.

On the question of non-verbal communication, the responses varied widely. “The judges experienced the non-verbal element in very different ways,” Denault observed. “This is another example of how non-verbal behaviour can influence perceptions of credibility differently.”

In short, non-verbal factors can affect trials, for better or worse, whether online or in a courtroom. “In any medium, non-verbal communication is part of the human experience,” Denault concluded. “So we must work to mitigate the effect of prejudices and stereotypes on trial outcomes.”

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