Pivoting in a Pandemic: Virtual Hearings,Vulnerable Witnesses and the Journey Toward a More Therapeutic Caribbean Court

Abstract

In the global judicial response to COVID-19 restrictions, virtual hearings were expanded beyond special accommodations for children and vulnerable witnesses to facilitate a range of court proceedings. Not much is known about the phenomenon in Caribbean contexts. As a result of this gap, the current study analyzes content from Practice Directions issued by Supreme Courts in Jamaica, Trinidad and Tobago, and the Eastern Caribbean from 2020 to 2022. It identifies patterns in the rules surrounding virtual hearings and their relevance to the vision of a more therapeutic Caribbean court. Results indicate that in generalizing virtual hearings, witness needs are not adequately addressed.

Keywords

Therapeutic jurisprudence virtual hearings child witnesses vulnerable witnesses Caribbean courts

Introduction

Judicial responses to COVID-19 brought to Caribbean courtrooms the expanded use of remote hearings and virtual technologies in court proceedings (Brathwaite, 2022). Prior to the COVID-19 pandemic, virtual hearings had become an increasingly common—though underutilized—modification of adversarial and potentially intimidating court procedures available to children and vulnerable witnesses, making their participation in the justice process less traumatic (Ainslie, 2013; Bussey, 2009; Fairclough, 2020; Myers, 1994). This global phenomenon had found its way into the Caribbean judicial toolkit for ameliorating court conditions to accommodate witnesses in sexual assault trials or those for whom in-person attendance at court poses particular risks, such as children, persons with disabilities, or those facing palpable threats.

The limited use of this modification prior to 2020 has been highlighted in both global and regional studies, leading to questions around whether children and vulnerable witnesses are benefitting sufficiently from them (Ainslie, 2013; Fairclough, 2020; Gal & Shidlo-Hezroni, 2011; Haynes, 2021; Leslie et al., 2020). Their increased use as practical judicial responses to ubiquitous infection control measures has led to the development of new Practice Directions and guidelines for virtual hearings being issued by Caribbean courts, including the Supreme Courts of Jamaica (SCJ), Trinidad and Tobago (SCTT) and the Eastern Caribbean (ECSC). This widespread and continuous use of virtual hearings for more prosaic judicial proceedings has resulted in recommendations for their expanded use going forward to assist with court case backlogs or inadequate court facilities (Supreme Court of Jamaica [SCJ], 2023; Supreme Court of Trinidad and Tobago [SCTT], 2020b).

The emerging Practice Directions, guidelines, and empirical studies on virtual hearings are providing new and more detailed guidance to courts relying on them for both general and specialized or witness-centered applications. Within the Caribbean context, this raises the question of whether the principles and rules elucidated and lessons learned from the expanded use of virtual hearings during the pandemic can advance their application to reduce the risk of traumatization for children and vulnerable witnesses. This article analyses content from Practice Directions on virtual hearings issued by SCJ, SCTT, and the ECSC from 2020 to 2022. It seeks to identify and compare patterns emerging from these pandemic-inspired modifications and analyze their potential contribution to the vision of a more witness-centered and therapeutic Caribbean court.

Virtual or remote hearings were first introduced as court proceedings in which a witness’ evidence is streamed live from a physical location outside of the courtroom, using video-link technology through closed circuit television, or more recently, virtual meeting applications (Bussey, 2009; Myers, 1994). At the height of the pandemic, this mode of virtual hearings changed, as most or all persons in a trial (often including the judge) participated in court sittings held entirely online (Brathwaite, 2022). The initial (pre-pandemic) aim of virtual hearings was commonly expressed as a special measure for facilitating vulnerable witnesses, however, definitions of vulnerability may differ from one jurisdiction to another. Witnesses may be deemed vulnerable (depending on the specific laws within each jurisdiction) based on their age, disability, the level of trauma experienced in the matter that brought them before the court, or the presence of a debilitating fear that is likely to distort their evidence (Ainslie, 2013; Bussey, 2009; Joseph, 1989; Myers, 1994). Children, defined as persons under the age of 18, were often included in the definition of vulnerability or deemed suitable for virtual hearings as the court environment and culture can reinforce or revisit trauma on the young (Gal, 2011; Troxel et al., 2009).

The linkages between therapeutic court proceedings and the effects of lay participation on witness trauma are thematic to this analysis. This rests on the theoretical approach that therapeutic jurisprudence brings to the analysis of the application of laws and legal rules and their effects on individuals (Wexler, 2008; Yamada, 2021). Described as the study of law as a therapeutic agent, therapeutic jurisprudence provides a benchmark for exploring laws and legal rules in their social context, using the litmus test of their therapeutic—or anti-therapeutic—effects on social groups and court users (Wexler, 2008; Winick, 2009; Yamada, 2021). At the micro-analytical level, it facilitates an exploration of the effects of legal rules on witnesses, and at the macro-analytical level, it can provide a backdrop for commentary on the emerging ethos of an indigenously Caribbean approach to jurisprudence and judicial rulemaking (Kokaram, 2019). Globally, the development of trauma-informed courts and witness care procedures represents a strategic approach to amplifying the therapeutic effects of lay participation on those who are most vulnerable (Chiamulera, 2021; Marsh & Dierkhising, 2013). This article is designed to contribute to knowledge in this area and addresses how principles derived from therapeutic and trauma-informed courtrooms apply to rules developed for the virtual context.

Literature Review

Therapeutic Jurisprudence

Therapeutic jurisprudence represents a relatively new emphasis on the contribution of interdisciplinary studies to analyzing law as a social force and interrogating its impact on the psychological well-being and mental health of individuals interacting with it (Stolle & Wexler, 1997; Wexler, 2001; Yamada, 2021). At the core of the theory is the idea that all actions of a court can be classified as either therapeutic or anti-therapeutic and legal actors should aim for therapeutic processes and outcomes, once this does not interfere with other court values, such as fairness or due process (Wexler, 2008; Winick, 2009; Yamada, 2021). Its proponents have thus sought to explore the therapeutic effects of court processes on participants in a trial or hearing, as well as the scope for tailoring court procedures to increase or reduce any deleterious effects while preserving the core elements of a fair trial (Gal & Schilli-Jerichower, 2017; Schma, 2000; Winick, 2009).

Critics note that therapeutic jurisprudence largely addresses law reform on a rule-by-rule basis, which limits the scope for situating transformative approaches within its theoretical frame (Wexler, 1995; Kerrigan, 2020). Within the Caribbean context, any questions of legitimacy arising from the court’s historical roots in slavery and colonialism would not be fully explored through this lens (Kerrigan, 2020). Similarly, feminist critiques have pointed out the patriarchal patterns embedded in Caribbean Family Courts that reinforce social hierarchies through deliberately archaic and dominating rites (Lazarus-Black, 1997) or by echoing, rather than overthrowing, gender imbalances (LaFont, 2000). A more disruptive reform effort is thus required to liberate Caribbean courts into a new social contract with Caribbean societies (Kerrigan, 2020).

However, as a theory that addresses how legal systems function and affect various participants, therapeutic jurisprudence was not intended to supplant more fundamental paradigms of constitutionalism, or as Wexler (2008) states, promote one set of therapeutic goals over another. Rather, it can be seen as a frame of reference to empower legal actors to “creatively make the law as therapeutic as possible without offending…other values” (Wexler, 2008, p. 21). Therapeutic jurisprudence can thus contribute to, rather than compete with, ideologies that are designed to drive a new ethos and culture in Caribbean courts and justice systems. In this vein, Caribbean judges have referenced the precepts of therapeutic jurisprudence, in both case law and public pronouncements, as an integral component of the development of an indigenous, decolonialized Caribbean judicial and legal culture (Kokaram, 2019; Rajnauth-Lee & Jamadar, 2022).

Court Procedural Modifications and the Rise of Witness-Centered Courts

Adaptations to the literal interpretation of the right of an accused to face or confront their accuser have been made to accommodate children and traumatized witnesses who would otherwise be unable to give their best evidence to the court (Joseph, 1989; Myers, 1994; Troxel et al., 2009). Among these adaptations, virtual or remote hearings facilitated through video-link or similar technology can accommodate a traumatized witness while facilitating live cross-examination, thereby protecting the rights of the accused (Ainslie, 2013; Fairclough, 2020; Myers, 1994). Virtual testifying is motivated by the dual aims of securing the best evidence and correcting imbalances that can inhibit lay participation in courts (Ainslie, 2013; Hunter, 2020). Virtual hearings can thus provide courts with a more therapeutic means of engaging traumatized witnesses, creating distance between witnesses and defendants, and facilitating court participation from a more accessible and less intimidating location. Other procedural modifications or special measures include the use of intermediaries and interpreters to provide communications or psychological support, one-way screens that can block a witness’ sight of the defendant while they provide evidence in court, facility dogs used to calm witnesses while they are testifying, or anatomically correct dolls used as testimonial aids for children and persons with intellectual disabilities (Bala, 2018; Caruso & Cross, 2012; Gerkey, 2016; Hall & Sales, 2008; Hunter, 2020).

Despite the breadth of options available, these special measures may be underutilized, in preference for traditional approaches to witness participation (Ainslie, 2013; Fairclough, 2020; Gal & Shidlo-Hezroni, 2011). Prosecutors may opt out of using special measures based on perceptions that evidence given remotely or from behind screens becomes less credible to a jury (Fairclough, 2020; Gal & Shidlo-Hezroni, 2011). Similarly, research conducted in the Caribbean region shows that in jurisdictions with special measures laws and procedures, these are not necessarily utilized to benefit all vulnerable witnesses, whose experiences suggest that the therapeutic benefits of special measures are not being fully realized (Leslie et al., 2020; Haynes, 2021). Researchers have thus questioned whether the therapeutic effects of special measures can be optimized in an adversarial trial process (Fairclough, 2020; Gal et al., 2011).

Increasing the Therapeutic Effects of Lay Participation on Children and Vulnerable Witnesses

The secondary traumatization of giving evidence in an open courtroom has been well documented in empirical studies (Bussey, 2009; Pantell, 2017). For a previously traumatized witness,

the experience of giving evidence may itself trigger a traumatic flashback, causing a witness to become confused or disorientated. They may consequently become anxious, forget where they are momentarily or be unable to understand or answer questions. Such witnesses may be perceived to lack credibility and reliability (Australian Government, 2022, 5.11).

Secondary traumatization may therefore cause undue harm to vulnerable witnesses, as well as undermine the court’s attainment of the best evidence from all parties.

For child witnesses, particularly those who have been victims of sexual abuse or other trauma, researchers have identified specific additional vulnerabilities. Salisbury, in working with child victims of sexual abuse, characterizes as re-traumatization the fact that they are rendered voiceless by the legal system (Salisbury, 2005). Additionally, any aspect of treatment that results in feelings of powerlessness among child witnesses can be associated with the feeling of being “raped all over again” (Salisbury, 2005). Lyon and Dente (2012) recount multiple cases in US courts where child witness testimonies are abandoned when children of varying ages break down, become hysterical, or are too traumatized or intimidated by the trial process to speak or answer a cross-examining attorney’s questions. Other research has found that cross-examination significantly increases levels of anxiety in children, making them susceptible to changing their evidence (Bettenay et al., 2015). Similar limitations may be experienced by witnesses with intellectual disabilities, who may be more prone to suggestibility, or more confused by the style and delivery of questioning in court (Beckene et al., 2020; Kebbell et al., 2004). The law itself then becomes an inadvertent instrument of violence applied against those who have already been violated.

Despite the negative effects that court participation can have on children and vulnerable witnesses, researchers have identified positive or therapeutic effects that are associated with giving testimony. The act of giving evidence can provide a witness with cathartic release and can reduce feelings of victimization and increase feelings of empowerment (Goodman et al., 1992; Wemmers, 2007). Witnesses in the United Kingdom who were provided with access to special measures experienced less anxiety and distress and felt they were better able to give their best evidence, as compared to witnesses who did not have access to special measures (Hamlyn et al., 2004). The degree of therapeutic outcomes experienced from court participation may be related to the quality of one’s interface with the court; in other words, therapeutic outcomes may be amplified where witnesses are respected and recognized, feel heard, and are informed and supported in navigating court processes (Wemmers, 2007). The potential for traumatization can be transformed into a potential for healing through the deliberate application of therapeutic techniques (Salisbury, 2005).

Therapeutic Jurisprudence and the Trauma-Informed Court

The practice of creating a trauma-informed court that designs a holistic experience for children and vulnerable court users has been emerging in the United States, United Kingdom, Australia, South Africa, and other common law jurisdictions (Bussey, 2009; Hall & Sales, 2008). Researchers found that even where special measures are introduced, factors such as lengthy waiting times, crowded waiting rooms, lack of communication, limited understanding of court processes, and the daunting nature of courthouse facilities can all have an emotionally draining effect on witnesses (Hall & Sales, 2008; Hayes et al., 2011). The trauma-informed approach requires courts to identify and address the actual or potential effects of trauma on a court participant, which is consistent with a deliberate and strategic methodology for increasing the therapeutic effects of court participation on vulnerable witnesses (Hetherington et al., 2022). The trauma-informed approach is thus a deliberate strategy to make courts more therapeutic (Hetherington et al., 2022).

Trauma assessments of court facilities in the United States analyze all sensory stimuli within a court facility—including colors, noises, sounds, smells, and lighting—to determine the potential effects of court attendance on already traumatized witnesses (Chiamulera, 2021; Marsh & Dierkhising, 2013). Assessments adopt an ethnographic approach and involve multidisciplinary teams in conducting observations and case file reviews (Marsh & Dierkhising, 2013). Chiamulera (2021) cataloged a comprehensive courtroom transformation built on the concept of a trauma-informed court, describing changes to physical court facilities that integrate music, colors, and other sensory effects to create a soothing environment for abused children. Changes in the physical environment and atmosphere were buoyed by changes in staff culture, including integrating a more engaging management style, prioritizing staff welfare, building knowledge of trauma, and strengthening customer service practices. Courts changed their communications culture before and during trials, allaying witnesses fears by providing them with information. Courts strengthened partnerships with community-based services to make trauma-responsive services available to children, including those in conflict with the law. Similar culture changes have been effected in Australian courts, which identify positive communications, providing clarity regarding court processes, and ensuring a safe courtroom environment as key judicial responsibilities (Australian Government, 2022). This model of a trauma-informed court is thus seeking to optimize therapeutic opportunities and is ripe for interdisciplinary empirical research to capture and analyze impact.

Trauma-Informed Virtual Hearings

Researchers have begun to explore how trauma-informed principles can be applied to virtual hearings. Research conducted among US family courts by the National Center for State Courts (NCSC) during the pandemic suggests that it is possible to define and implement trauma-informed practices in virtual hearings (National Center for State Courts [NCSC], 2022). This can be achieved by employing judicial communication and engagement strategies, building trustworthiness and transparency by sharing guidelines and expectations with all court users, ensuring that participants feel safe in the location from which they are participating, and making support services available during and after witness participation (NCSC, 2022). Practices related to court culture and witness-centered communications can thus be applied in either virtual or in-person contexts.

Accommodations for the use of interpreters and intermediaries may require additional arrangements to ensure seamless application in a virtual hearing, as will the ability of the judge to engage with witnesses and ensure that they are psychologically prepared to provide their best evidence (NCSC, 2022). One area explored by researchers is the capacity of virtual hearings to convey the formality of court proceedings, and thus underscore respect or veneration for judges and judicial processes. The potential loss of gravitas in virtual hearings could diminish respect for courts and their role in upholding the rule of law (Bell, 2021). Ferguson (2022) illustrates how virtual hearings can cause a shift away from the centrality of the judge and physical court structure, signaling potential disruptions to traditional hierarchies of the criminal court system and addressing historical imbalances that have disempowered communities of court users. For vulnerable witnesses, the maintenance of court formality is not always a desirable end result. Australian family court judges, reflecting on the use of remote hearings during the pandemic, assessed the utility of virtual technologies based on their ability to put participants at ease through the veil created by cameras and screens (Bell, 2021). Reduced formality in a virtual hearing may thus be conducive to reducing trauma if accompanied by appropriate court-witness communications and interfaces.

Methods and Materials

This study was conducted as a desk review of protocols issued by SCJ, SCTT, and the ECSC for the period 2020–2022. These materials included:

Practice Directions, or formal rules issued by judiciaries to guide court proceedings;

Guidelines, or less formal standards; and

Other court communications, such as annual reports.

The materials were analyzed with the primary aim of establishing:

Whether Caribbean judiciaries pivoted to the widespread use of virtual hearings during the pandemic.

Whether directions/guidelines issued for virtual hearings during the pandemic directly addressed the therapeutic or trauma-related needs of vulnerable witnesses.

Whether judiciaries signaled the increased use of virtual hearings beyond the pandemic.

Which patterns embedded in the generalized rules and guidelines issued for virtual hearings during the pandemic can improve their specialized use in facilitating children and vulnerable witnesses beyond the pandemic.

The material for review was collected and compiled using online libraries and search engines and by reviewing the websites of the targeted Supreme Courts.

Findings

Pivoting to Virtual Hearings During the Pandemic

Early in the COVID-19 pandemic, all Supreme Courts in this study switched from in-person to virtual or remote hearings (Brathwaite, 2022). The ECSC, the only court in the study serving multiple, sovereign territories, used its fifth Practice Directions for 2020 to confirm its intent to undertake as many hearings as possible remotely and to discourage all in-person appearances (Eastern Caribbean Supreme Court [ECSC], 2020b, 2021). The SCJ and SCTT, each serving a single nation, were more direct in switching from in-person to remote hearings, restricting entry into court buildings and suspending jury trials (Brathwaite, 2022; SCJ, 2020a, 2020c).

Addressing the Therapeutic Needs of Vulnerable Witnesses During the Pandemic

Court issued Practice Directions and guidelines were reviewed for any references to adjustments to court formalities or accommodations for any specific communications or psychological needs of vulnerable witnesses, linked to their age, disability, or mental state. For the most part, pandemic-related remote hearing guidelines made limited mention of witness needs. As one exception, the SCTT’s guidelines on remote hearings (2020b, para 3) entreat attorneys to ensure that witnesses are comfortable and to “be vigilant to non-verbal signals in this regard.” It further refers to the potential presence of interpreters or intermediaries during a remote hearing, but juxtaposes this with cautions against communications between witnesses and third parties while they are giving evidence (2020b).

The ECSC guidelines (2020a), in contrast, also address the use of intermediaries and interpreters to assist witnesses, while encouraging the use of discreet communications channels, particularly where the intermediary is in a different location from the witness being assisted. Notably, rules and guidelines often explicitly referenced the need to reinforce, rather than vary court formalities (ECSC, 2021; SCJ, 2021b; SCTT, 2020a, 2020b). Further, the SCTT (2020a, para 17) required attorneys to be “attired in a manner customary to that which is adopted when physically present” in court. None of the documents reviewed specifically referenced reducing court formalities or otherwise reducing potential witness traumatization through communications or interventions from the bench.

In Jamaica, Practice Directions were used in May 2020 to introduce Criminal Case Management Rules that were developed prior to the pandemic but came into effect during the timeframe covered by this study. These rules included reference to the needs and interests of complainants, witnesses, and vulnerable persons, among other trial participants such as jury members or self-representing defendants (SCJ, 2020b). They integrate into the case management process arrangements for “special measures,” with specific references to:

Interpreters

Use of video-link

Special accommodations (SCJ, 2020b, p. 368).

There is an additional category for other measures, suggesting that there may be some judicial discretion to address factors not specifically addressed in laws or legal rules, for example, to accommodate a wheelchair-bound participant. These rules are not, however, specific to remote hearings and do not specifically address whether any special accommodations can address the trauma-informed communications and psychological needs of a witness, and how this may translate to the virtual context.

Signaling Increased Use of Virtual Hearings Beyond the Pandemic

Remote hearing guidelines issued in all three jurisdictions used broad language and were not specifically limited to use during the pandemic (ECSC, 2020a; SCJ, 2021b; SCTT, 2020b). In Trinidad and Tobago, judicial guidelines for electronic hearings made reference to the continued use of virtual technology to support remote hearings beyond the exigencies of the COVID-19 pandemic, including to support access to justice, to reduce court case backlogs, and to address physical space constraints (SCTT, 2020b). Guidelines issued in Jamaica, however, noted that the use of remote hearings was subject to limitations arising from the availability of technology (SCJ, 2020b). This serves as a reminder that any scope for special accommodations made in rules and guidelines is subject to and affected by the digital divide (NCSC, 2022). SCTT (2022) has addressed this issue by establishing Virtual Access Customer Centres that allow witnesses to give evidence from a more convenient and accessible location.

Advancements in the Rules for Virtual Hearings that Will Benefit Future Vulnerable Witnesses

The guidelines and protocols reviewed often included detailed practical information on how to access virtual meeting platforms, what to expect during the hearing, and what rules of etiquette will apply (ECSC, 2020a; SCJ, 2021b; SCTT, 2020b). These communications could be helpful to witnesses who are otherwise intimidated by ignorance of court proceedings. The tone and wording of guidelines, however, are typically targeted at attorneys and not at witnesses or other lay participants. This therefore only partially aligns with global best practice on trauma-informed virtual hearings, which promote the use of witness-friendly pre-hearing communications for witnesses who do not know what to expect during court participation (NCSC, 2022). Notably, the SCTT guidelines (2020b) include reminders for attorneys to give consideration to the needs of witnesses, including those who find electronic hearings to be particularly taxing, encouraging them to attend to witness comfort, requesting breaks as necessary.

Discussion

It should be noted that the combination of social distancing or shelter in place measures coupled with the size and layout of court infrastructure often meant that the criminal branch of the High Court in each country was hardest hit by the pandemic (Brathwaite, 2022; ECSC, n.d.; SCJ, 2023). Appellate courts, summary courts, civil matters, preliminary hearings, case management, bail, and other hearings transitioned more readily to remote delivery than jury trials in criminal courts (Brathwaite, 2022; ECSC, n.d.; SCJ, 2023). This meant that the types of procedures (criminal jury trials) in which vulnerable witnesses often participate were the same types of procedures that were most likely to be suspended during the expanded use of remote hearings. The coinciding of increasing numbers of virtual hearings with diminishing numbers of vulnerable witnesses could thus mean that rules developed during the pandemic for virtual hearings did not reflexively focus on the needs of vulnerable witnesses.

Globally, the influence of the use of virtual hearings has gone beyond the pandemic, as courts integrate and co-opt this more flexible and efficient means of hearing matters (Ferguson, 2022). Even in jurisdictions like Australia, where the effects of the pandemic remained relatively contained, the long-term benefits of continuing with virtual hearings were quickly raised as a means of increasing access to justice for remote, rural communities (Bell, 2021). In a similar vein, Caribbean courts are embracing the expanded use of remote hearings beyond the pandemic, to address a wide range of justice development issues. The courts in Trinidad and Tobago have flagged the utility of virtual hearings as a means of advancing access to justice and reducing case backlogs (SCTT, 2020b). The expansion of Virtual Access Customer Centres is designed to support this and help overcome space limitations (SCTT, 2022). In Jamaica, this post-pandemic expanded use of virtual hearings is most stark in the Civil Division of the Supreme Court where in 2022, 98% of hearings were conducted virtually, resulting in significant improvements in trial date certainty and “essentially remov(ing) courtroom space as a constraint on court productivity, paving the way for greater efficiency in the court’s operation” (SCJ, 2023, p. 126). Beyond the pandemic, virtual hearings are now being positioned by judicial leadership to effect a “potentially seismic shift in the modus operandi of the Supreme Court and thus creating an opportunity for momentous gains in efficiency in the coming years” (SCJ, 2023, p. 3). Thus, the Jamaican Judiciary is consciously pivoting on and institutionalizing pandemic-necessitated change to enhance court capacity and improve modernization (SCJ, 2023).

Practice Directions and guidelines issued by the SCJ, SCTT, and the ECSC respectively to guide the expanded implementation of virtual hearings spoke to their importance for:

Securing continuity of court operations (ECSC, 2021; SCJ, 2021b).

Preserving principles and ideals of democracy, the rule of law, and the protection of human rights (SCJ, 2021b).

Safeguarding access to justice (SCJ, 2021b; SCTT, 2020a,b).

These statements in a subtle but important manner serve to underscore the significant role of virtual hearings in supporting and advancing the ideals ascribed to courts and court processes. This creates a useful reference point for proponents of the use of virtual hearings to secure the effective participation of children and vulnerable witnesses going forward. However, the absence of a direct reference to the use of virtual hearings to secure the best evidence and increase the therapeutic benefits of court participation for children and vulnerable witnesses is notable.

Additionally, the extent to which the expanded use of virtual hearings extends to lower courts—including Family and Children’s Courts—would be an important consideration. For these and other courts, a shift to a more therapeutic approach to witness participation would extend beyond the modus of virtual testimony to addressing the atmosphere and environment that courts create and the ethos that drives their approach to witness participation. Certainly, if Lazarus-Black’s (1997) depiction of the dominating rites and rituals used by Caribbean lower courts and their diminishing effects on ordinary court users remain applicable, they do not appear to create ideal conditions for the participation of vulnerable witnesses. Judiciaries utilizing virtual hearings to better accommodate witnesses who are traumatized or otherwise deemed vulnerable would need to consider how to adapt protocols to create a more therapeutic context for their participation. This may require shifting away from customary court formalities and creating a less intimidating context in which vulnerable witnesses can give their best evidence.

Potential for Trauma-Informed Virtual Hearings

To capture the ethos of a trauma-informed court, guidelines, and rules would need to address judicial communication and engagement strategies, participant’s safety and psychological preparedness to give their best evidence, and the adaptation of support services to the virtual context (NCSC, 2022). Concerns regarding the loss of gravitas associated with a court hearing (Bell, 2021) are less relevant in instances where a more relatable judicial environment is deliberately being crafted to reduce the risk of re-traumatization (Chiamulera, 2021). Questions regarding the capacity of virtual hearings to convey an empathetic and trustworthy environment (Bell, 2021) could be addressed through the use of intermediaries to support witnesses at the same location from which they are streaming into court. Trauma-informed virtual hearings could thus be built out on the existing infrastructure available for victim support services in the region.

In Jamaica, the Victim Services Division and Child Protection and Family Services Agency both provide counseling and psychosocial support for victims and witnesses, with services covered including psycho-emotional support counseling, crisis interventions, group interventions, welfare support, and court preparation (Leslie et al., 2020). During the pandemic, some of these services migrated to virtual delivery and could thus provide a starting context for witness-centered support services for remote hearings (Planning Institute of Jamaica, 2023). Accommodation for intermediaries and other third parties providing assistance to witnesses is referenced in the ECSC and SCTT protocols for remote hearings (ECSC, 2020a). However, the guide does not clarify whether and to what extent these services are made available in practice.

The role of trauma-informed courts in providing useful information to court users could also be addressed. NCSC research identified as a trauma-informed best practice, the provision of clear guidelines for all court users on how to engage with virtual technologies, how to make the best use of cameras, and what to expect of virtual participation (NCSC, 2022). The idea behind these detailed guidelines is both to place the participant at ease, as well as to create a fair tableau by equipping all court users (including defendants who are self-represented) with common information on how best to present themselves and their evidence before a virtual court audience (NCSC, 2022). While the protocols for virtual hearings developed within the region were not necessarily targeted toward vulnerable witnesses, there are some commonalities.

All three courts in the study issued practice guidelines or general protocols to accompany the more formal Practice Directions on virtual hearings (ECSC, 2021; SCJ, 2021b; SCTT, 2020b). These less formal documents provide detailed guidance that could be useful to a participant who is new to virtual hearings and give a level of specificity that could be assuring. Written in more user-friendly language than Practice Directions and addressing prosaic issues of camera placement, background lighting, and microphone management, they could help a lay participant feel more prepared for what to expect in court. Notably, however, all three documents are targeted toward attorneys-at-law and could be further modified to provide additional, user-friendly information to lay participants on both the virtual and in-person aspects of court procedures. Thus modified, these guidelines would represent a useful reference point for court-community communications as an added step toward a Caribbean court that is responsive to the needs of an evolving society.

The articulation of court rules for virtual hearings in a manner that does not center on their potential therapeutic benefits for witnesses can have significant implications for the development of witness engagement practices that are both trauma-informed and designed to secure the best evidence. In jurisdictions such as the United Kingdom or Canada, which have a longer history of special measures and virtual hearings, the underutilization of these options in favor of traditional, in-person, and unaided testifying has been flagged by socio-legal researchers (Ainslie, 2013; Fairclough, 2020). This can result from prosecutorial (and perhaps, ultimately, jury) presumptions that evidence given remotely is less compelling or valid (Gal et al., 2011). Similar trends have been noted in Jamaica, Guyana, and other countries having special measures laws, or procedures, where research participants indicate that these measures are not ubiquitously used (Haynes, 2021; Leslie et al., 2020). Combined with the cancellation of jury trials during the pandemic, and thus the limited application of pandemic-inspired virtual hearing rules for the witnesses ordinarily participating in jury trials, this could mean that vulnerable witnesses ironically could benefit least from measures initially introduced with their participation in mind.

Virtual Hearings and the Digital Divide

Among the policy issues that will need to be addressed, the digital divide and socio-economic limitations in access to reliable internet service can become a proxy for access to justice (Bannon & Keith, 2021; Kunkel & Bryant, 2022). The digital divide can exist within the structures of a court system. While prior to the pandemic, legislative provisions may have allowed children and vulnerable witnesses to participate in trials virtually, the technological infrastructure to facilitate this was not ubiquitous. For example, in Australia and the United Kingdom, virtual hearings for vulnerable witnesses in family courts were relatively underutilized, in part because of limited video technology and internet connectivity in these courts (Bell, 2021). Within the restrictions experienced in Caribbean economies, this lack of connectivity in summary courts, where domestic violence, care and protection, and other family violence issues are typically heard may persist into the future.

Implications of the Study

Pivoting forward from the pandemic, separate and detailed protocols are necessary to address the use of virtual hearings by children and vulnerable witnesses, as they have quite different goals and desired outcomes compared to the virtual hearings used for reasons of public health or convenience. The use of virtual hearings by children and vulnerable witnesses should be premised, not on the aim of maintaining court as usual, but on the intent to reduce, as far as possible, the traumatizing effects of court participation. A protocol for virtual hearings in this context could consider and be informed by the wider aims of establishing a trauma-informed court, with alternatives that support those whose path to court was wrought through adverse circumstances and facilitate them in delivering their best evidence. The level and type of information provided to witnesses, the support services available to them before and after court participation, and the aura created by courtroom rites and rituals would all need to be addressed (NCSC, 2022). The participant’s choice in the modality of participation should be emphasized so that any therapeutic advantages to be gained from telling their story in open court are not compromised (Bell, 2021; NCSC, 2022). Additionally, the practical implications of digital poverty on both witnesses and court infrastructure would need to be assessed, particularly in relation to lower courts and remote communities.

Limitations and Future Research

As a desk review, this study represents a starting point of enquiry that could support more qualitative exploration of the expanded use of remote hearings during the pandemic. This could include the collation of judicial perspectives, as well as those of any children and vulnerable witnesses who gave evidence through virtual means. Assumptions emerging from global studies on the therapeutic value of remote hearings could be tested among different types of local participants, to determine whether and to what extent any demographic groups could be alienated by the requirement to participate in court virtually, rather than in person. Additionally, any distinctions between the experience of Supreme or Appellate Courts and courts of summary jurisdiction (including Family and Children’s Courts) could be explored further and supported by empirical data on the effects of the digital divide on courts and court users.

Conclusion

In many ways, the pandemic experience has helped to isolate problematic issues and provide potential solutions for the expanded use of virtual hearings in Caribbean jurisdictions going forward. These lessons and the empirical data that support them will need to be adjusted for specific applications to virtual participation by children and vulnerable witnesses. The increased use of virtual hearings during the pandemic has further served to illustrate the benefits they bring to courts, and to vulnerable witnesses. They provide a useful measure for addressing the space constraints and case backlog that can hamper court development and are already being credited with improving trial certainty and judicial efficiency (SCJ, 2023). Beyond the physical separation between defendants and complainants that remote hearings achieve, the reduction in time spent waiting in courthouse hallways, which is considered a requirement for a trauma-informed court, can also be attained by shifting the witness’ participation to virtual means (Bell, 2021; Chiamulera, 2021).

The protocols issued by courts in the region to provide guidance for engaging via virtual hearings are a useful model for the kind of court-community communications that express to societies the court’s intent to be relevant to its evolving needs. While they could be further amended to target lay participants and first-time court users with more user-friendly information, they comprise a useful resource for making courts more accessible and demystifying processes. This contributes but does not fully capture, the evolution of a therapeutic court ethos that is informed and guided by the effects of trauma on witness vulnerability. More attention to witnesses’ communications and psychological needs would be essential to the development of a trauma-informed court experience, whether witnesses are giving their evidence in person or virtually. Future changes will therefore need to be grounded in a Caribbean ideal of a justice system that meets the unique needs and requirements of our maturing societies. As Caribbean jurists (Kokaram, 2019; Rajnauth-Lee & Jamadar, 2022) begin to situate therapeutic jurisprudence within that ideal, empirical data on the therapeutic or anti-therapeutic effects of court participation on the region’s children and vulnerable witnesses will be essential to charting the way forward.

Footnotes

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author received no financial support for the research, authorship, and/or publication of this article.

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