Editor’s Note: A revised version of this article was first published on The Malaysian Lawyer
On 23rd April 2020, The Malaysian Judiciary made history as it live streamed a Court of Appeal hearing. The live stream was opened to the public and was done so on the Judiciary’s website and YouTube channel.
The anticipated next step is the introduction of online trials. This is not a unique phenomenon as courts in other jurisdictions, such as China and the United Kingdom, have experimented with online trials. Indonesia has recently announced that it will be embracing online trials.
This article will briefly examine some of the positives and negatives associated with online trials. It is hoped that this article will open up discussions on the feasibility of online trials within the Malaysian context.
I. Saves cost & time
Online trials will save cost and time in the long run – specifically costs associated with travelling and lodging. There is no necessity for lawyers and/or their clients to travel to the trial court physically. Lawyers and/or their clients, who may be from out of town, may take part in the trial from the comfort of their homes or offices.
II. Enhances open justice
Open justice “requires that the courts ought to be open to the public” and this long standing common law concept has been codified in Section 15(1) of the Courts of Judicature Act 1964 (“CJA 1964”). If online trials are accessible to the public for its viewing, open justice will inevitably be enhanced.
III. May increase confidence in the Judiciary
The current Chief Justice, Tengku Maimun Tuan Mat has acknowledged that the public has a negative perception of the Judiciary. With open justice enhanced, resulting in legal proceedings being subject to a greater extent of public scrutiny, the public’s trust in the legal system may increase.
IV. Results in improved advocacy
Recordings of online trials can be used as case studies in universities and/or in Continuing Professional Development advocacy related courses. Lawyers will undoubtedly benefit from learning from more experienced litigators.
I. Legislative amendments may be necessary
It remains to be seen whether online hearings (and by extension, online trials) are compatible with the CJA 1964. A day before the live streamed Court of Appeal hearing, two lawyers argued that the live streamed hearing could not be carried out until the CJA 1964 had been amended accordingly.
II. Inequality of internet connectivity
Despite a high percentage of internet access by individuals (84.2% in 2019) and households (90.1% in 2019), there is a great deal of anecdotal evidence of internet connectivity issues even within the Klang Valley area.
A possible solution to overcome this would include parties taking part in trials from 3rd party locations such as rooms in the courts, State Bar offices, and/or law offices specifically designed to facilitate online trials.
However, this proposal may minimize the cost-saving impact of online trials as the costs incurred in setting this up and in maintaining it would likely be transferred to the litigants.
III. Coaching of witnesses
Coaching of witnesses can be defined as “[attempting] in any way to influence or modify a witness’s evidence in order to assist a particular party’s case, be that the evidence of either a witness of fact or an expert.”
With online trials, lawyers could be present in a room with a witness and suggest answers to the witness while the witness is giving his/her testimony.
Safeguards which could be introduced to deal with this includes:
a. Supervising solicitors
In the United Kingdom, supervising solicitors are present in the execution of search orders. In the context of online trials, supervising solicitors would be present in the room with a witness, while the latter is giving his/her testimony, to ensure the witness is not being coached.
b. Deception detection
Herbert B. Dixon Jr., a former Judge of the Superior Court of the District of Columbia, wrote an opinion piece on the use of technology-assisted deception detection such as:
“… the use of stylometric techniques to identify deceptive statements, an infrared camera to record eye movement and pupil dilation, a high-definition video camera to capture various fidgeting, a microphone to collect data concerning changes in vocal pitch, a weight-sensing platform to measure various body shifts, and even a 3-D camera to track movements of the person’s entire body.”
Such technologies are unlikely to come cheap. Notwithstanding that, investing in technology-assisted deception detection would evidently improve the quality of evidence given during online trials and would assist judges in deciding the credibility of a witness as well as the weight to be attached to a witness’ evidence.
An effective cross-examination of a witness could be stopped in its tracks if one were to disconnect the internet or log out from the trial. Alternatively, lawyers intending to buy time could pretend to have connectivity issues thereby delaying the trial.
A combination of conducting trials from 3rd party locations and the presence of supervising solicitors may resolve this issue. However, as noted above, this would minimise the costs saved from having online trials.
As discussed above, online trials are not without its issues. Be that as it may, taking into account the positives arising from online trials, it is definitely the way forward. We can either eagerly welcome it and be on the forefront of change or reluctantly embrace it later.