The Criminal Defense Blog


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It was recently reported that a judge in Colombia conducted a metaverse court hearing. I watched some of that hearing on YouTube. If I closed my eyes, I felt like I was in a typical Zoom court proceeding. But when I opened my eyes, I was looking at a virtual representation of a judge presiding over a virtual courtroom full of virtual lawyers and litigants.  Colombian Metaverse Court Hearing 

Prior to COVID-19, courts permitted remote hearings under very limited circumstances. That changed with the pandemic. The total shutdown of the justice system triggered by COVID-19 caused a massive backlog of civil and criminal cases. Judges were therefore forced to find alternative ways to preside over cases.

This urgent need to conduct the court’s business, while in the midst of a global pandemic, most certainly accelerated the mass adoption by judges of Zoom and other video conferencing services. In an effort to keep the court’s functioning during the pandemic, hearings were scheduled on virtual dockets and the lawyers, parties, and witnesses were provided links and instructions on how to appear remotely. But these remote hearings presented new challenges. All involved in the process had to adapt to the muting and unmuting of mics, camera settings for video feeds and dropped parties due to spotty internet connections.

Although this process works well for moving dockets and conducting court hearings, it is not well suited for jury trials. Although some courts experimented with conducting jury trials remotely, these remote trials created additional challenges and concerns. Having juries appear remotely to hear cases is simply not the same as being present for a live in-person trial. Lawyers are unable to pick up on subtle visual cues or potential juror bias during the jury selection and trial proceedings. Moreover, jurors are unable to fully assess the credibility of witness testimony on a video screen as well as they could if that witness were testifying in open court.  Another problem with virtual trials is that lawyers are limited in how effectively they can question testifying witnesses. There is simply no way to pick up on in-person verbal and non-verbal cues via a remote video feed.

While it may be possible to overcome these issues in a civil trial—especially with the consent of the parties—virtual criminal trials raise additional concerns.   In a virtual criminal jury trial, there are also significant fundamental constitutional rights at stake. Under the Sixth Amendment to the United States Constitution, a defendant has right to be “present” at trial and the right to “confront” the prosecution’s witnesses. These rights are obviously significantly curtailed in a virtual jury trial. Although there are rare exceptional circumstances when virtual testimony might be allowed in a criminal trial, a totally virtual criminal trial may very likely trigger a denial of the defendant’s constitutional right to a fair trial.

I do believe courts will continue to hold virtual hearings to address procedural matters in criminal cases, but I am unsure whether we will ever see virtual criminal trials involving cases where a person’s freedom is at stake. There are simply too many constitutional issues that would likely come up on appeal if the defendant is convicted.

My dear friend and colleague in the #Web3 world, Ira Rothken, posted that he and a team of lawyers recently filed a petition with the Supreme Court of the United States challenging whether remove witness testimony via the “metaverse” may violate a defendant’s Sixth Amendment constitutional right to confront her accuser.Ira Rothken Twitter Post

As bullish as I am on the future of Web3 technology, I think there are still many challenges that must be overcome before courts adopt metaverse trials and hearings. While on the surface, there may not appear to be any difference between a Zoom-like virtual court hearing and a metaverse AR/VR court hearing, I do see some potential distinctions worth discussing.

One critical difference is that on a Zoom-like hearing, the court can at least see the face of the testifying witnesses. If a witness is testifying through a digital avatar—even an avatar that looks strikingly similar to the witness—that raises issues over the true identity of the person testifying.  I suppose in theory, a soul-bound token could securely confirm that the avatar testifying on the virtual witness stand is in-fact that same individual in real life, but we are a long way off from mainstream adoption of that sort of on-chain proof of identity protocol. 

Testimony through a VR Avatar also makes it impossible for the court and the lawyers to weigh the credibility of the witness through observable social cues such as facial expressions and body language. As difficult as it is in Zoom-like virtual court hearings to read body language and visual cues, it would impossible to observe and evaluate those behaviors on a 2D virtual witness. As good as AR avatars might someday become at replicating facial and body language, they will never replace the subtle perceptions we make during human-to-human interactions.

My initial feeling after watching the Colombian metaverse trial is that courtroom virtual avatars don’t evoke the same emotional response as what we experience in-person court proceedings. Try this thought experiment: Watch this clip of the reading of the guilty verdict in the now infamous Alex Murdaugh murder trial. Take note of the emotions you feel as you witness the verdict being read and Murdaugh’s reaction to the guilty verdict. Now, close your eyes and play the clip again. This time, imagine how your eye would perceive the same experience if the courtroom was filed with computer generated avatars. Would you feel the same emotional response? Probably not. That’s the potential danger of metaverse jury trials. Could a metavrse trial sanitize, and even dehumanize, the raw and emotional drama of in-person court proceedings? And if so, would that impact the fairness of trials? Murdaugh Jury Verdict

The 2D avatars in the Colombian metaverse trial simply don’t lend any substance to the hearing. I couldn’t sense any of the social cues that I would normally rely up in making tactical changes to my arguments in court. As I watched the Colombian court hearing, I couldn’t help but wonder if the judge seem to agree with counsel’s argument or did she raise a brow? Did the opposing party fidget in her seat as the lawyer put on his case? Did opposing counsel tip their hand about the strength of their case?  Yes, digital mouths were moving and arms and hands were waving about in that virtual Colombian courtroom, but was any of it comprehensible on a human level? In my opinion, it was not.  

As I litigator, I have made it my life’s work to passionately advocate on behalf of my clients. I feel like advocating through a digital avatar takes something raw and emotionally vital away from that experience. It feels artificial, because well, it is artificial.

I recently gave and interview with CoinTelegraph discussing the good, the bad and the future of metaverse court dockets. Although I think there is a possible future use-case for virtual metaverse hearings, I don’t see metaverse jury trials happening anytime soon. There are simply too many potential points of failure in the process that the tech must still overcome. Only when the immersive metaverse experience is indistinguishable from an IRL court hearing, will we see judges consider approving the adoption of this technology. CoinTelegraph Article 

Even if the AR/VR technology reaches that fully immersive level, I still think trial lawyers will have concerns that jurors who are sitting behind virtual avatars might be potentially bored at having to look at a screen all day. How would the parties know if a juror fell asleep during the trial? Lawyers will also be concerned that jurors are multi-tasking during critical stages of the case. Even more alarming, lawyers will worry that the jurors might be sitting at home and doing real-time independent computer research instead of paying attention to the evidence coming from the witnesses stand. That’s a definite no-no in an IRL jury trial and could be a deal-breaker for the adoption of remote metaverse jury trials. These concerns coupled with the lack of an ability for lawyers and jurors to truly assess the credibility of witness testimony from behind the mask of a virtual avatar, also make the prospect of metaverse trials unlikely to happen in the near future.

Could advancements in VR and AR immersive technologies change all this? Of course. As a lawyer and technologist I am all in favor of innovation that will advance the legal profession forward. But that innovation cannot come at the expense of a fair trial. While I can easily foresee a future where small claims, traffic tickets and other informal court proceedings and procedural matters might be conducted in virtual metaverse courtrooms, I think that future will largely depend on the mass adoption of AR/VR by the general public. It will be of no use to hold metaverse court proceedings if the tools necessary to participate in the process are not universally available and adopted by the masses. When lawyers, judges and the public are all comfortable putting on an AR/VR headset and jumping into metaverse worlds, then maybe, just maybe we will see metaverse hearings start to show up on court dockets.  Crypto Criminal Defense Lawyer Blogpost

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