Performing Expertise: The Design of Audiovisual Links and the Construction of the Remote Expert Witness in Court

Introduction

While courts have used audiovisual links to take evidence from witnesses for over 30 years, discourse reveals a certain level of ambivalence towards its use. Supporters see it as indispensable for speeding up judicial processes and facilitating access to evidence that would otherwise be unattainable. However, critics are concerned that the diminished quality of communication over audiovisual links makes confrontation and cross-examination challenging (Friedman, 2001–2002) and may result in the witness being perceived differently (Poulin, 2004). One commentator even suggests that using videolinks might threaten the legitimacy of the trial (Mulcahy, 2008). Even those who contest these claims agree on the need for more research on its impact on the right to a fair trial (Helland, 2001–2002: 747–748).

Studies into the use of audiovisual links in courts have been disparate in terms of scope, participant focus, measures of success and conclusions. Principally, they examine the impact of videolink technologies on court experiences while ignoring other potential influences, such as court procedure or the built environment (Rowden et al., 2013). Much of the previous research focuses on the experiences of child and other vulnerable witnesses, with mixed results. Some witnesses feel disempowered when forced to give evidence this way (Plotnikoff and Woolfson, 2004: 71), but generally the research finds that the use of audiovisual links makes it easier for vulnerable witnesses to testify. Some studies suggest their use impacts adversely on perceptions of the witness (Cashmore and Trimboli, 2006: 2; Ellison and Munro, 2014: 14–18; McAuliff and Kovera, 2002: 423), while some do not (Lederer, 1999: 844; Taylor and Joudo, 2005: xi). Two empirical studies found its use does not impact adversely on verdicts (Cashmore and Trimboli, 2006: 2; Ellison and Munro, 2014: 11–21). Studies have identified that defendants appearing by audiovisual link can be disadvantaged (Diamond et al., 2010; McKay, 2018; Plotnikoff and Woolfson, 1999, 2000), with one finding a quantifiable increase in amounts set for bail (Diamond et al., 2010). However, little attention has been paid to the implications of audiovisual links for other trial participants, such as the judiciary, lawyers and expert witnesses (Rowden, 2011; Wallace, 2011; 2013). We begin to address this gap by investigating the implications of using audiovisual links to take expert testimony in jury trials. This investigation focuses, necessarily, only on the role of the expert as performed in the common law Anglo-American adversarial tradition that is the basis of the Australian jurisdictions in which our data were collected. While experts in common law courts are subject to an overriding obligation to provide independent assistance to the court by way of objective, unbiased opinion, ¹ they are generally called as a witness on behalf of a party in the expectation that their evidence will support that party’s case.

Our empirical research on the use of audiovisual links in Australian courts finds that expert witnesses encounter difficulties giving evidence this way that are previously unacknowledged. Qualitative interviews, questionnaires and site visits to courthouses and remote witness locations revealed perceptions on behalf of experts and judges that audiovisual links deprive experts of the feedback necessary to shape their performance, compromise their ability to gesture and interact with exhibits and demonstrative tools and create an additional cognitive load for the witness. These data support previously expressed concerns that all witnesses may find it more difficult to achieve gesture and other important nonverbal cues over audiovisual links (Poulin, 2004). Findings from this research also suggest that awareness of the important civic function of the court may be diminished when evidence is given in this way (Mulcahy, 2008; Rowden, 2018). Beyond the practical implications of these findings, we suggest that audiovisual links expose the contingent nature of expertise and the cultural scaffolding around its construction, leading us to reflect upon how reliability, credibility and expertise are defined and established in court. While the reliability and credibility of all witnesses is constructed through their court performance, we argue that there are particular implications for experts delivering their testimony remotely. An expert who testifies by videolink in an adversarial trial may find their ability to validate, and give authority to, the particular version of the scientific truth that they enlisted to provide is compromised by the medium of delivery, resulting in a performance that is incongruent with their actual expertise. A single, or court-appointed, expert may also find their expert performance compromised, although perhaps with lesser effect.

Our findings, therefore, support the claim that expertise can be seen as a form of social capital (Bourdieu, 1984), confirmed through qualifications and accreditation processes, but that successful identification of an expert in the court context is contingent on that individual behaving congruently with what is expected of an expert in this particular citation of their identity (Butler, 1988). Ultimately, this has implications for how truth and expert knowledge (Foucault, 1980) are constructed in court. Our analysis suggests that it may be time to reconsider how the role of the expert is performed in court and calls for more detailed investigation of the relationship between the mode of delivering expert evidence and its impact.

The Role of the Expert Witness

The role of an expert witness is to provide the court with technical and scientific expertise on matters that are beyond everyday knowledge (Feigenson and Spiesel, 2009: 104). A suitably qualified expert may give evidence of fact but, uniquely, may also give evidence of their opinion, that is, an inference drawn from the facts (Freckelton and Selby, 2018: para 2.0.03). The courts’ concern is to ensure that opinions expressed in the courtroom are derived from a valid field of science or other discipline and that the witness has sufficient knowledge and experience to be recognised as an expert (Freckelton and Selby, 2018: para 1.0.10). The essential requirements are that the expert’s opinion must be relevant and necessary to assist the court and confined to their expertise (Freckelton et al., 2016: 21–24; Heydon, 2014: 1015-1016). Both prosecution and defence may call expert evidence, and the prosecution must disclose any expert reports or statements obtained during investigations. ² Although those statements may be admitted into evidence by consent, ³ in criminal trials it appears to be more common for experts to give evidence in person, either in court, or remotely via audiovisual links, depending on the jurisdiction. In some cases, jurors may also be given a copy of the expert’s written report, but this is not routine in Australian courts (Freckelton et al., 2016: 83).

Experts explain and justify their opinions to the court in examination and cross-examination. Their evidence needs to be adequately communicated and explained to the jury. This includes laying the groundwork to enable their findings and interpretations to be understood by lay persons (Wheate, 2008: 124). Experts may be questioned and challenged in relation to their opinions or on their understanding or application of a scientific method. The method by which evidence is given has implications for an expert’s ability to explain and justify their opinions. Oral evidence is limited by the scope of the questions asked; a written report by the brief given to the expert and the court rules prescribing its form and content. Our findings suggest that experts testifying remotely face new challenges in explaining and justifying their opinions and performing their expertise in ways that reinforce their status as expert.

The Status of the Expert

Experts have high levels of social and cultural capital (Bourdieu, 1984), evidenced through educational qualifications, institutional affiliations and professional accreditations. They occupy high positions in what Becker (1967: 241) has termed as ‘the hierarchy of credibility’ within organizations or what Ward (2004) has referred to as levels of social trust. In the context of the adversarial trial, that trust, and the expert’s position in the hierarchy, is typically established by foregrounding their qualifications, training, experience, publications and professional standing via a series of questions and answers put to them by the party calling their evidence, a process also designed to qualify the witness as an expert under the legal rules. It might be theorized that jurors are more likely to trust experts who occupy higher positions in the hierarchy (e.g. highest levels of qualification, longer standing and a more established professional reputation) as they presumably have a more complete mastery of their specialization. A recent Australian study found that jurors may have relatively high expectations of the trustworthiness of expert evidence, and the more they expect to trust an expert witness, the more likely they are to perceive that witness as credible (Freckelton et al., 2016: para 9.27). Juror expectations of the status of experts may be enhanced in the case of categories of scientific evidence such as deoxyribonucleic acid (DNA), where the science itself arguably carries with it an aura of infallibility (Thompson, 2013: 227–228).

Legal procedures also play an important role in conferring expert status as ‘[c]ourtrooms are spaces in which “expert” status is performed and enacted’ (Faulkner et al., 2012: 5). For example, sociolinguistic scholarship suggests experts use discursive tactics to illustrate their expertise to a courtroom audience. These include strategies such as amplifying and expanding answers beyond the required minimum (Stygall, 2001: 335–337). An expert may also refuse to acquiesce to controlled questioning by using contrastive responses, such as ‘well’, that give them the opportunity to provide an extended response to the question (Stygall, 2001: 337–340), which further illustrates their knowledge and heightened status to the jury. While novice expert witnesses may be initially unfamiliar with giving evidence, increasing experience allows them to move into the realm of ‘professional juridical actors’, that is, those courtroom participants for whom the proceedings are part of their everyday familiar world (Bourdieu, 1987). ⁴ Thus, the seasoned expert witness is in a doubly privileged position as an elite ‘juridical actor’ and ‘expert’ within a discipline, enhancing their potential influence on a jury.

An expert’s elevated status may have implications for an audience’s expectations of their performance. As a court acknowledged ‘expert’ with high cultural and social capital, it could be hypothesized that jurors would be more likely to expect a polished and competent performance. ⁵ Arguably, this expectation is enhanced when we see an expert appearing onscreen. Poulin (2004: 1112–1113) asserts that our society is conditioned to expect those appearing onscreen to be ‘attractive and competent’, wear make-up, stylized clothing, have media training and ‘know where and how to look at the camera’. Expert witnesses appearing by audiovisual links who do not conform to those expectations may, as Poulin argues of defendants appearing remotely, ‘compare unfavourably’ and be ‘judged more harshly’ than if they had appeared in person (2004: 1113). ⁶ They are expected to act and behave ‘expertly’ and therefore have further to fall from their pedestal if their performance is incongruent with their status. Despite this risk, we found increasing pressure for experts to give their evidence remotely (Wallace, 2013: 228).

Investigating the Use of Audiovisual Links for Expert Testimony

This article sits within the field of social inquiry that seeks to understand the complex relationship between human behaviour and the environments in which they occur (Zeisel, 2006). It draws upon findings from an empirical research project that examined the trend towards using audiovisual links in Australian courts with the aim of improving communication between court participants. ⁷ The methods used included site visits to remote spaces and courthouses, a survey of forensic witnesses and semi-structured interviews with stakeholders. ⁸ This approach resulted in a wealth of qualitative data from which to draw a nuanced account of the challenges and difficulties facing trial participants, including expert witnesses, who attend court remotely.

Site visits to courts and remote sites provided important contextual information for the interviews. Our case study sites, Western Australia and Victoria, both use audiovisual links extensively, but provided a useful comparison. Western Australian courts service a very large geographic area with a widely dispersed population, including some of the most remote parts of Australia. By contrast, Victoria is a smaller and much more densely settled state. A sample of sites were selected as representative of the wide range of spaces courts might connect to by audiovisual link with over 40 courthouses and 20 sites visited. ⁹ Two of these sites were established by the Australian Federal Police (AFP) and the Victorian Police Forensics Department (VPFD), respectively, solely to take evidence from forensic experts. Each site visit took approximately 1 h during which photographs were taken and sketches made, and an aide-memoire of previously developed criteria was used to note the room’s scale, size, materials and ambience. Inspections included the ‘audiovisual link (AVL) suite’, the entrance to the suite, adjacent waiting areas and the entrance to the building. Where possible we photographed onscreen views, and at certain sites, we were allowed to interact with each other between a courtroom and the remote space over the audiovisual link. This exercise not only gave us an important phenomenological understanding of the issues involved but also a greater appreciation of the remote participants’ perspectives as explored in the interviews. A short survey of police forensic witnesses who had experience using audiovisual links to give evidence was distributed through the National Institute for Forensic Science. Thirty-two respondents answered questions directed at their levels of satisfaction with the experience of giving evidence by audiovisual link and were invited in an open-ended response to suggest further improvements. ¹⁰ These qualitative responses also provided important background information to the interviews and corroborated the findings from the site visits and interviews.

To source participants for stakeholder interviews about court use of audiovisual links, we used a snowballing process among industry partners. Sixty-one stakeholders were interviewed, including judges, magistrates, lawyers, court staff, architects, expert witnesses, technical support staff and remote court officers. ¹¹ Of the 15 expert witnesses interviewed, the majority were forensic scientists, six of whom were interviewed individually and two jointly. Another six forensic scientists ¹² were consulted in a group following their participation in a simulated remote witness experience devised by the project team. The forensic witness interviewees were drawn from two police forensic services: the VPFD (who were promoting the use of audiovisual links to take evidence) and the AFP (who would accommodate audiovisual link use but did not actively promote it). Two expert witness interviewees from overseas provided a useful, albeit limited, international comparison. Interviews were semi-structured to ensure consistent coverage of content; however, they were dialogic in nature with both the researchers’ and interviewee’s positions adjusted in an ‘interactive negotiation’ to identify the issues, with the researchers using self-disclosure to encourage reciprocity (Lather, 1991: 60). Interviews were anonymized in accordance with the research ethics permission. ¹³ In total, the opinions of 46 experts were gathered by survey or interview, all of whom had experienced giving evidence by audiovisual links either in the course of their work or as part of the simulation run by the project team. Analysis of the interview and survey data for this article focuses on the effects of taking evidence this way.

Remote Expert Witnesses and Their Testimony

The data revealed that using audiovisual links to take expert testimony could compromise the performance of the expert and affect how the expert felt their testimony was received in the courtroom. The quality of the technology and the way it was configured could impact on the way experts were framed and on their ability to make eye contact and to perceive gestures. While some experts demonstrated the capacity to adapt their performance to the technology, and some problems might be overcome with improvements in the technology or its installation, the evidence suggests that some intractable issues could remain. The expert’s performance becomes a more complex task when delivered by audiovisual link, as aspects of their performance that would otherwise have occurred without conscious thought are now added to the overall cognitive load of the task.

Will Improving the Technology Fix the Problem?

Many of the concerns identified above could be ameliorated to some extent by improving the technology, its configuration and operation (Rowden et al., 2013) and providing expert witnesses with adequate training on its use. Very rarely were the courts visited deploying the latest technology, and what was available was often not configured, or operated, to maximum advantage. However, our analysis identifies issues that may not be resolved simply through equipment upgrades or training. These include the importance of the way that the expert is ‘framed’ for their courtroom encounter and the way in which the audiovisual link demands that the expert give more attention to aspects of their court performance.

Constructing the Expert

Our findings support the contention that expert witnesses deploy a series of linguistic and embodied strategies in court, both consciously and subconsciously, to underline and confirm their status as a credible ‘expert’. However, the data also suggest that the construction of witness as expert over videolink has become a much more self-conscious exercise. Even an expert who becomes adept at managing the particular challenges involved in presenting their evidence by videolink will, until such thinking becomes automated, need to also think carefully through the performance itself, to ensure that their testimony has parity with the in-court in-person version. Any confidence engendered by an expert’s high cultural status (Bourdieu, 1984) achieved from qualifications or experience in their field might be undermined by a poorly executed court performance. It is therefore potentially more challenging for the expert to perform their expertise successfully when giving evidence remotely.

The trial is a space ripe for critically analysing processes of identity formation and the role of performativity in its construction (Umphrey, 2011: 115). Following Butler’s notion of the citational nature of identity, expertise, like gender, might also be considered as ‘an identity tenuously constituted over time’ (1988: 195), through iterations and repetitions of acting ‘expertly’. Rather than being an inherent or stable identity, each interaction an expert has with society either reinforces or contradicts their attribution as ‘expert’. The examples of videolinked expert testimony discussed above disrupt any sense that experts have a stable or inherent professional identity that they project to others at all times. A failed expert performance by audiovisual link exposes the work that an expert does in the courtroom to convey their professional self. Ironically, it is the very act of giving ‘expert evidence’ that may undermine external recognition of that expert’s expertise. Expertise itself is revealed as not something that is certain, fixed or reliable but is instead performative and in-the-making.

This study exposes, therefore, what performative theorists would readily assume: expertise is contingent (Bellido, 2016) and ‘experts’ are constructed in the courtroom in several ways. As noted above, an expert’s testimony is foregrounded through a series of questions and answers that signal to the jury the witness has a special status. However, this special status, secured through their high social capital (Bourdieu, 1984) based on formal qualifications, experience, professional networks and reputation, is only recognized when reinforced by an active demonstration of that expertise, not only through the content of their evidence but also the manner in which they give it: their court performance.

Truth and the Adversarial Trial

As a judge the question occurs to you: “well are they just acting or is this really the truth?” On a more philosophical level – are we all just acting? But we don’t like to ask that question too often in the law. (I096VICS)

The conferral of expert status on a witness is a relatively recent development in the history of the common law trial. Scholars have linked the expert’s position within common law courtrooms to changes in the role of the jury, evolving from an investigatory function drawing upon juror’s own knowledge in the medieval period, to that of silent receivers of information (Stygall, 2001: 331–339). It is at this point that a fundamental change in discursive relations occurs, as the expert is granted the position of authorized speaker of knowledge and opinion (Stygall, 2001: 329). ¹⁶ The enunciations of experts are taken as serious truth claims precisely because they come from authorized speakers who are placed in a position of privilege by methods of ascertaining and evaluating expertise.

Foucault posited that a society operates within a ‘régime of truth’ that governs ‘the status of those who are charged with saying what counts as true’ (1980: 131). The contextual nature of serious speech acts is key, in that, ‘any speech act can be serious if one sets up the necessary validation procedures’, or ‘community of experts’ (Dreyfus and Rabinow, 1983: 48), that is, who is enunciating it and how their enunciation is framed socially, physically and spatially. The expert’s court-acknowledged status as ‘expert’ lends further weight to the framing of their statements as ‘truth’.

This is complicated when two different interpretations of one set of facts are presented as the truth by different experts called in the one trial. As the ‘public face’ of their discipline, expert witnesses ‘speak science as Truth’ in a positivist way, in the face of the relativist conception of truth inherent in the adversarial trial (Stygall, 2001: 333). Nonetheless, an expert’s evidence will be enrolled to construct a version of events for the legal team that have called upon their expertise. When experts offer different conclusions, they present ‘a less unified version of scientific Truth, making them vulnerable to challenge’ (Stygall, 2001: 333). A poor court performance by audiovisual link can compromise the successful projection of any expert’s identity as ‘expert’. Where one expert’s opinions are pitted against another’s, the poor performance may also jeopardize an expert’ ability to convince the jury of their interpretation, which may, in turn, affect the outcome of a trial. The risk of a poor performance is perhaps more likely to be incurred by parties who are less well resourced and unable to pay for an expert witness to attend in person. This in turn may have implications for access to justice and the right to a fair trial.

In taking expert evidence, courts play a supplementary role on behalf of society in validating, or rejecting, emerging disciplines and disciplinary discourses; a role that is also subject to the impacts of audiovisual links. Experts working in new and developing fields or fields that have been placed under renewed scrutiny (PCAST, 2016) will find that courts look to them to provide even greater detail about how they arrived at their conclusions. As such, they may be increasingly vulnerable to both the challenges embedded within the adversarial trial and those posed by giving evidence by audiovisual link. These issues could also impact on a sole court-appointed expert, although perhaps to a lesser extent.

Beyond the suggestion that the absence of bodies in public adjudication necessarily impoverishes the important function and rituals of the trial (Mulcahy, 2008), our study suggests there is even more at stake for expert witnesses and the disciplines they represent. Successfully achieving a professional persona, appropriate demeanour and body language does more than simply enhance an expert’s standing as a trustworthy and credible witness. It may also help justify their privileged status as expert, reinforce the status of their field as a respected discipline and, in turn, validate and give authority to their particular version of the truth as formed within the rules and procedures of their discipline. In our conclusions, we explore the implications of this for the jury trial.

Conclusions

Our study shows how perceptions of an expert may be undermined through the very performance designed to demonstrate their expertise. A poorly performed testimony by audiovisual link risks an expert being identified as less than expert, regardless of training, qualifications, cultural capital, the hierarchy of credibility or the social and cultural authority embedded in their discipline. How an audiovisual link constructs the expert appearing onscreen in the courtroom may have significant ramifications for the reception of their speech acts as serious and the expert as trustworthy. Camera angles, lighting, sound quality, a lack of synchronicity between sound and vision can all combine to create an impression that is incongruent with the expert’s status as a professional, elite performer. The data also reveal that the design of the remote room plays an important role in the construction of the expert. The witness who appears not in the courtroom, but from a ‘wharehouse-ish’ space with a stack of boxes visible behind them, may have a harder task conveying their expertise, and perhaps their credibility; their words and actions potentially undermined by the context in which they are viewed.

This study underlines the importance of acknowledging that technology is not transparent (Lanzara, 2010) and, far from being a neutral insertion, its use fundamentally alters the nature of court proceedings (Rowden, 2013). That videolink appearances disrupt or alter experts’ performances should trouble experts and those who call them. Experts and lawyers could advocate for courts to ameliorate some of the challenges we identify through technical fixes and adjustments to the architecture of remote court facilities. No doubt such measures will happen in time. However, focusing solely on design or technological solutions misses the broader implications for law and society.

Our findings should be considered in light of recent research on jurors’ assessment of expert evidence. One study found that attending to witness demeanour can override a full consideration of the strength of the witness’ testimony (McKimmie et al., 2014). Another found that jurors who perceived a prosecution expert to be confident were more likely to report that expert’s evidence as easy to understand and to perceive the prosecution case as stronger (Freckelton et al., 2016: para 9.37). The problems encountered by experts in conveying their expertise by audiovisual link suggest this mode of delivery may impact adversely on a jury’s assessment of their demeanour so that they may be perceived as less confident or less wise. Given this, is the law’s insistence on ‘performance’ of expert testimony still warranted or justifiable?

By exposing the constructed nature of an expert’s performance, the use of audiovisual links challenges the courts to consider whether the content of the expert evidence is receiving adequate attention and whether the performance itself serves as a distraction. Perhaps different modes of using expertise might be explored, such as the use of agreed standardized explanations to address the educative aspect of the expert’s role. For example, the Australian Law Reform Commission suggested the use of a standard jury educational video on DNA evidence (ALRC, 2003: 44.49) and the viability of this type of approach has been supported by some experimental research (Goodman Delahunty and Hewson, 2010: 3–5). Greater use of single, or court-appointed, experts may perhaps reduce the risk of unfairness resulting from a compromised videolink performance by an expert in a ‘battle of the experts’, although there is still the potential for the performance of a single expert to be compromised when giving evidence by videolink, thus potentially diminishing their authority and the impact of their evidence.

Recognizing the many ways in which the performance of expertise is problematized by videolink use creates the opportunity for the hierarchy of credibility (Becker, 1967: 241) that characterizes law’s deference to experts to be usefully disrupted. This can in turn draw fact-finders into a more critical engagement with both the content of the evidence and how reliability and expertise are being constructed in court.