Abstract
While courthouses often reveal a profound gap between the professed ideals of justice and their delivery, their designs supposedly symbolize the authority of the community over the individual and lend legitimacy to the discipline occurring within. This article considers what happens to the experience and legitimacy of justice when legal participants no longer enter the courthouse, but appear remotely by videolink. Drawing on empirical evidence regarding the use of videolinks in Australian courts, this article reveals current iterations of distributed courts ignore the important symbolic function of the courthouse as the home of justice and the presence of law.
Keywords
I. Introduction
Symbolizing shared ideals of justice and due process, the presence of a courthouse in a society supposedly reassures citizens that the law is present and in operation. The architecture of the courthouse is one of the key mechanisms through which the importance of judicial process to the civic sphere is demonstrated. Architects have traditionally deployed high-quality crafted materials to create a powerful phenomenological experience to prepare participants for the judicial event and frame it as legitimate, creating a special place for law through manipulating light, texture, materiality and form. However, the increasing use of videolinks to take testimony from experts, child and adult vulnerable witnesses, as well as to facilitate appearances by defendants from prison, signal that court proceedings are now spatially dispersed events. Rather than all participants being in the one room within a discrete and identifiable courthouse, participants are now attending court from remote locations as varied as workplaces, hospitals, forensic labs, universities, legal or judicial chambers, prisons, and commercially-run videoconferencing suites. What this shift towards distributed courts means for the symbolic role of the court building is only beginning to be critically examined. 1
Videolinks are having a profound impact on how courts conduct their business and plan for the future. Some trials are now occurring where no witness appears in person, with all evidence delivered remotely by videolink or as pre-recorded testimony. 2 As such, policy makers, court administrators and academics are beginning to question the need for a court building at all. 3 If we view the courthouse in purely functional terms – as a shelter for those conducting court business – one can see how its relevance is challenged by the prospect of most, if not all, participants being able to access court events remotely in the future. 4 If everyone participated in justice processes remotely, and we were no longer to build or maintain courthouses, would it matter? Could remote court spaces collectively fulfill the symbolic function that the courthouse currently performs? Is there any future need for building courthouses if this is possible to achieve? In other words, does the act of building and maintaining courthouses have a function to the community, beyond housing justice rituals and processes?
Drawing on the findings of an empirical study that sought the views of those using videolinks in courts, this article explores the perceived effects of distributing court space on the symbolic function of the courthouse. 5 Site visits at remote court environments and courthouses, observations of remote testimony and videolinked court proceedings, along with interviews with stakeholders, show that attending court from remote locations significantly alters the experience of justice for all involved. The data lends weight to theories espoused by sociologists that suggest perceptions of legitimacy and due process are impacted by the space of law. It contends that the success of distributed court systems of the future is contingent on existing symbolic functions of the court building being not lost, but identified and reimagined.
II. The Court Environment, Ritual and Symbolism
While the validity of a trial is not dependent upon being staged in a courtroom, the Western legal tradition has a well-documented history of signaling that the place of the trial is in some way special and out-of-the-everyday. 6 Whether held on a man-made moot hill, among stone circles, under a tree, or in a purpose-built courtroom – historically the place of the trial has always been marked out as special. 7 Physical and temporal thresholds distinguish court events from the everyday as decisions made within the court need to be perceived as more authoritative and binding than those made outside of them. Judges often make life-changing pronouncements on behalf of society as they exert the authority of the state over the individual. The need to establish a special judicial space – a civic space – through which these pronouncements are made, is therefore important to help legitimate the adjudication. 8 Alongside correct procedure, juridical activity, in order to work, does not just occur anywhere and at any time. Decisions and judgments require particular social, temporal and spatial framing to have effect. 9 The need to keep the court as out-of-the-everyday can therefore be seen as intimately tied with the need to establish and maintain the authority and legitimacy of the court process. While the courts achieve this in several interrelated ways including deploying ritual, 10 dress, 11 language, 12 and specific performances, 13 I concentrate here on the unique contribution of a particular place to the perceived legitimacy of legal process and then go on to consider how ‘‘remote’’ testimony in its current form disrupts this.
1 Courthouses and courtrooms as civic spaces
Under the principle of open justice the public play a critical role in court proceedings – whether as jury members, or watching from the public gallery – they are involved to ensure just procedures and outcomes. 14 As such, court processes require an appropriately public setting for their proper enactment. Alongside parliamentary and council chambers, the courtroom and courthouse are important civic spaces; by definition they are state-owned, publicly accessible, ceremonial and enclosed. 15 ‘‘Ceremonial’’ civic spaces are large in scale, impressive in design, and have a material quality that is expressive of their public value. The importance of courts to the civic realm is evident haptically through the materials used to build courthouses. Iconography is also often employed, such as the statue of Justicia often found externally, or the Coat of Arms behind the Judge’s dais within the courtroom. While the role of iconography to courthouse design is well documented; 16 I wish to explore here the relationship between the court environment, the human body and the slippery concept of community. Of particular interest is the way in which the court building has come to symbolize the relationship between an individual and their obligations to their community and vice versa – albeit an ‘‘imagined community’’ that is falsely envisaged as cohesive, homogenous or uncontested. 17
While the vast majority of court participants flow through magistrates’ courts that are generally built with cheap, robust materials designed to withstand frequent use, the scale, proportions and materiality of supreme or appellate courts dominate the public imagination of what a court should look like. In these courtrooms and courthouses high-quality, durable and expensive materials are used: marble, ceramics, stone, precious metals, and furnishings in carved timber and wool fabrics or leather (Figure 1). Higher-tier courts often use traditional techniques of artisans that demand a high level of skill and investment in time; the hand, and therefore the body, is often evident in their construction. In modern courthouses constructed of mass-produced materials and mechanized labor, the care in their composition and material finish signifies the value of the building and the activities it houses. Across all levels of the court system, the importance of the justice system to society is evident in built form; even the most humble of magistrates’ courts inscribe through space the importance of the law.
Examples of craftsmanship and high-quality materials in courthouse architecture: a) door to courtroom at the Ballarat Courthouse (photography: the author); b) detail of a carved timber newel post within the King Street Court Complex (photography: Scott Wojan, courtesy of the NSW Department of Justice).
Courthouse construction is a deeply self-conscious undertaking whereby the political elite have the opportunity to either embrace links to the past or create distance from it. 18 The self-reflexive potential of court buildings to represent an illusory community back to the populace, or at least sections of it, is particularly palpable in the rhetoric surrounding the opening of a new courthouse. For instance, Chief Justice Black opening the Adelaide Federal Court stated of the building: ‘‘It’s a very positive building, it’s light, it’s exciting, it’s modern, it’s inviting. I think it’s a symbol of modern Australia.’’ 19 This rhetoric also demonstrates the role of architecture in the invention of myths around the concept of justice. The reconciliatory potential of courthouses has been embraced by post-colonial societies, either incorporating symbols important to the local indigenous population, being sensitive to particular indigenous spatial practices, or acknowledging past state-sanctioned violence and racism in their designs. These intentions are evident in the architecture of the Supreme Court in Wellington, New Zealand, South Africa’s Constitutional Court and the Port Augusta Courthouse in South Australia (Figure 2). Participants from all sides of the process may appreciate the potential for courts to play a powerful role in reconciliation. Auty narrates the story of a young Aboriginal man, who after a stint through the justice system enrolled in an art class and produced a painting he later gifted to the court; it now sits above the witness box. 20 She claims that the image provides an effective and non-threatening symbol as ‘‘those who pass through the court effectively sit under the hand of Aboriginal youth.’’ 21 While overrepresentation of disenfranchised members of society in the justice system make questionable the extent to which design can overcome structural inequality, the power of courthouse symbolism, however, should be neither overstated nor underestimated. 22
The Port Augusta Courthouse (photography: the author).
In tandem with finding more suitable ways to reflect the ideals of society in built form, courts are increasingly concerned with improving access to justice. The use of videolinks in pursuit of this aim is twofold: providing physical separation between certain participants within the trial and increasing access for those who are physically remote to the court. 23 Indeed, connecting those living in remote areas more easily to court was a key driver for the uptake of videolinks in Australia. 24 In contrast to how courtroom architecture prepares litigants for the civic nature of the court event, remote court participants most often find themselves in spaces that could be characterized as bland, ordinary and mundane (Figure 3). Remote participants often appear from nondescript small spaces dominated by technology. The ceiling heights, finishes and ambience of these spaces are not of a civic scale, but are better described as domestic. 25 Despite occurring now for over two decades, the effect of removing certain participants from the coercive effects of the court space has gone relatively unexamined. As the existing body of research has provided no clear consensus as to whether or not this radical change to procedure has produced an alteration in judicial outcomes, the prevalence of distributed court hearings and trials has increased. A hitherto ignored aspect of this change is the impact of videolinks on the symbolic function of the space of law.
Photo, plan and section (not to scale) of a typical purpose-built remote witness suite (photography and sketch: the author).
III. Stakeholder Views of Distributing the Space of the Law Court
This article reports on the findings of a three-year study that investigated the introduction of videoconferencing to court processes to improve the experience of remote court participation. Data collection focused on the two states of Victoria and Western Australia. They provided a useful comparison as both utilized the technology extensively but contained the most dense and most remote populations of Australia respectively. While several empirical methods were undertaken for this largely qualitative research project, including court observations and a mock-trial experiment, data reported here was obtained from site visits and semi-structured interviews. 26
Fieldwork revealed the wide variety of spaces that a court might link to, and a remote participant might experience. Some 49 courthouses and 20 remote locations used for court videolinks were visited in Victoria, Western Australia and several European sites for comparison. Descriptive elements, such as the room size, number of windows, as well as qualitative elements, such as the ambience and materiality, were noted using an aide-memoire. Semi-structured interviews sought the opinions of 61 stakeholders. 27 These included 19 judicial officers, 15 expert witnesses, eight remote court officers, six lawyers, six court technology officers, three court administrators, three architects and one judges’ associate, selected through both formal invitation and a snowballing process via industry partners. 28 Tailored pre-interview questions formed the basis of 60–80 minute semi-structured interviews conducted between 2008 and 2010, mainly by the author and another researcher. 29 Interviews were dialogic, with the issues covered directed as much by the interviewee as the interviewer. Themes were identified with interviewees in an interactive negotiation, as well as with research team members in post-interview analysis. 30 These findings were supported by evidence collected from court observations, as well as auto-ethnographic experiences of using videolinks. An unexpected finding came from the comments of stakeholders: the symbolic, if not actual, presence of the community during proceedings was linked to a capacity to convey a sense of shared values to court participants. The perception that videolinks disrupted this link was articulated through a series of losses.
1 A sense of loss
While interviewees were quick to identify the benefits of remote participation in speeding up court processes or enabling evidence that might not otherwise be obtained, many were clear that it also fundamentally impacted on the phenomenology of the trial. Every interviewee, even those most positive about videolinks, described ways in which remote court interactions could be improved. Many felt that any technical issues would be resolved over time and that they therefore should not overshadow the positive benefits videolinks bring to delivering justice. However, a third of interviewees raised issues that point to more fundamental disturbances to court interactions and rituals caused by videolinks,
31
with several grappling to describe exactly what it was that was lost, different or unsettling. This was revealed in the delivery, as rambling statements were punctuated with repeated words, stuttering and self-correcting interruptions to subtly adjust meaning. For instance, one architect offered the following:
… if you go back to what architects do – we organize inhabitation and human activity in space – that’s what we do … if we then go and say: “well what’s a courthouse all about, what’s the trial process all about?” – no-one actually touches anybody in a courtroom – all they do is communicate … and what Courts do is they bring a certain group of people together for a certain period of time to communicate in a highly ritualized and controlled way … In my mind I think that’s where we need to be cautious about technology ’cause it’s, it’s – two things … The control of those communications I think is harder when you don’t have everybody in the one room. A whole lot of things slip off the radar. Important things – nonverbal cues and so on. And the other one was the ritual side of it. As human beings there’s something about the actual process which is an experience which has a beginning, middle and end – an event in time, it’s an event in place. And if you dissipate that, I think there might be culturally and psychologically, if not simply in the completeness of communication a whole bunch of stuff which will be lost – now it’s a bit dangerous.
While the interviewee is unequivocal that videolinks change things, pinpointing exactly what ‘‘stuff … will be lost’’ remains vague. 32 Face-to-face communication is envisaged as more complete, and videolinks are presented as disrupting court proceedings and its rituals, idealized as following a ‘‘beginning, middle and end.’’ However, this fetishization of court rituals performed in a single location precludes the possibility that with proper planning and adaptation of space and technology, court rituals might be successfully reconfigured in ways that do not lose their essential meaning, flow and intent.
That communication is always better in the discrete courtroom is a belief worth questioning. Carlen’s influential study depicting magistrates’ court participants talking over each other, and being unable to follow proceedings, throws some doubt over these claims. 33 Indeed some interviewees commented on the benefits of being away from the coercive effects of the civic space of the courtroom, particularly for vulnerable or child witnesses, as there is ‘‘less distraction,’’ and less chance of being intimidated, either by the court space or certain participants. By contrast, some expert witnesses found giving evidence by videolink more difficult than in person, in court, especially if the videolink set-up meant they were unable to see the faces of the jury. A sense of ‘‘loss’’ was nonetheless a reoccurring theme for those skeptical of the capacity of current videolink arrangements to achieve successful court performances and rituals. Even as one judicial officer observed, ‘‘depersonalization can happen whether it’s through videos or through anything else,’’ they nonetheless felt videolinks often made depersonalization, when it did occur, ‘‘even more intractable.’’
For some stakeholders the perceived ‘‘loss’’ of full sensory engagement, and the loss of potential, if not actual, body-to-body contact, saw videolinks as a less humane experience. One judicial officer emphasized the importance, for them, that all litigants came together in the one place, as a reminder of the ‘‘human condition’’ and that the difficult decisions being made in court are not undertaken lightly or flippantly. It was felt by this speaker that those sentiments were difficult to convey to a person appearing remotely, stating of courtrooms:
… they are really hugely charged environments … but people can cope and I think it is valuable also to a large degree for them to experience the suffering and anguish together, you know, to understand that it’s not a mechanical process, it’s not some arbitrary cold-blooded process. It’s a human process where a human being is ultimately charged with making this impossibly-hard judgment which causes grief and anguish, and this is a human condition, and to be in the same place together where you’re experiencing this I think is a very necessary path. Otherwise you get the impression … you tell your problems to a computer and out pops a solution.
Temperature is revealed here as significant. The perceived coldness of the screen is exacerbated by the lack of connection with others. Later in the interview, they described that ‘‘body heat’’ was also missing over videolinks:
You know what’s different? … human warmth. The sensation of being in a space with people, and when I mean warmth I almost mean physical warmth, that is the sensation of contact. Now there are umpteen different environments, it could be going to a pop concert, it could be going to a pub, going to a bar, going to dinner with friends, a one-on-one intimate situation. There’s something about the warmth of the proximity of humans that we do need, because everything else in terms of contact can and has been duplicated …
We are in essence replicating only two human senses through the videolink. A whole, warm-blooded, ‘‘live’’ person is reduced to an audio and visual feed. The rest of the sensory field is denied. While there is arguably little physical contact occurring in a discrete court – and even less ‘‘tasting’’ of the environment – the above description of ‘‘body heat’’ is nonetheless poignant. 34
We need, however, to view these statements in relation to broader societal trends. Much civic engagement can be conducted through computers and increasingly our time is spent in front of screens. Our age is dominated by the image and our environments often neglect the full panoply of sensory experience. Architectural theorist Pallasmaa expresses dismay at this ‘‘hegemony of vision’’ that has engulfed contemporary architecture whereby sleek surfaces devoid of a sense of materiality or empathy pervade. 35 He advocates for a resensualization of architecture, renewing its hapticity, texture, weight, density of space and materialized light. 36 For Pallasmaa, vision is necessarily distancing; the dominance of the eye at the suppression of other senses pushes us ‘‘into detachment, isolation and exteriority.’’ 37 In critiques of the videolinked court encounter that depict it as less meaningful and more distancing than face-to-face interactions, there is a similar lamenting for the loss of the haptic. The remote participant is perceived as less engaged with the full spectrum of human sensory experience. ‘‘Dehumanized’’ was a word that came up frequently in both the literature and interview transcripts. 38
The court ‘‘atmosphere,’’ and the critical role that spatial distances between courtroom participants play, was also perceived by stakeholders to be lost over videolink. The haptic dimension of court buildings demonstrates not only the civic importance of judicial activity but they also help underscore the legal rituals they contain. Civic environments cue particular types of behaviors to encourage participants to conform to the norms of the rituals occurring.
39
A large room with space for an audience, exaggerated demarcations and enlarged spatial distances between players prescribe a public persona.
40
Such cues might also be described as the coercive power of the courtroom, especially as non-complying behavior could end in a charge of being ‘‘in contempt of court.’’
41
Removal of one person from this environment may have implications for all performers. As expressed by one judicial officer:
Even if the videolink’s working perfectly that loss of physical proximity reduces the pressure I think that counsel’s able to put a witness under when they’re face-to-face. It is … being present in the witness box with a judicial officer sitting there with … the counsel across from the bar table, the whole formality that a Courtroom brings. All of that is, is lost to some extent when the witness appears by videolink.
42
The remote participant not only loses their place within the group, but loses their connection with the behavioral cues of the court space: ‘‘the whole formality that a courtroom brings.’’ Their distance from the court’s atmosphere of respect is perceived here to compromise a remote participant’s sense of accountability to others, as well as counsel’s ability to press that obligation.
2 Losing the structure of the court
Framing the court environment as out-of-the-everyday creates complex effects. It does more than simply impress the seriousness of the event; the structure and quality of the court setting conveys important messages to those subject to its processes. As expressed most eloquently by one judicial officer:
… people come to a court with serious personal difficulties to resolve … and I think that they expect to have their concerns treated seriously. One of the criticisms that people make of courts is that they aren’t treated seriously … they will say things like: ‘‘I was rushed’’ or ‘‘they didn’t take me seriously’’ or ‘‘they didn’t listen.’’ That’s one of the things that people say really frequently. And I don’t think that’s necessarily about whether people are listened to or not … it’s more to do with whether they’re respected. I think people see respect as something that’s much more amorphous than just being respected philosophically – it’s about the place they have in the building, it’s about the manner in which they’re treated when they come into the building. It’s about every tier in the hierarchy of courts – it’s about the structure – it really is about the structure … one of the things that makes the oval table in the Aboriginal sentencing court structure so important is that people are invited to come forward – people are invited to the table. They’re not, they don’t remain offset or at the back or away from the real business of the court, or what’s happening. And that’s got some spin-offs I suppose for … videoconferencing … in that, if people think that they are – again – away from the table, or if they’re not being taken seriously. And if they think that that is a function of the process that they’re being subjected to by video rather than ‘‘real’’ court – that might make people feel much like Aboriginal people felt before we introduced the Koori court. If people feel that what they’re being exposed to is transitory rather than real or … deep or … if people think that they are just conveyed along a process for expedition and that they’re in a dodgy little back room which doesn’t reflect the gravity of them or their evidence or their concerns – and their concerns might just be wanting to have their say – I think we do have some problems about losing the court building, losing the structure, losing the power and importance of it. And we need to be balancing that really carefully …
The removal of the remote participant from the public court environment is a fundamental shift. They miss the ‘‘displays of justice in practice’’; 43 the respectful atmosphere and behavioral cues conveyed by the materiality and scale of a civic building. Importantly, the interviewee here describes respect as being not solely derived from person-to-person interactions. Respect is also manifest through space. Each person obtains a sense of their place within the social hierarchy of the court ‘‘behavior setting’’ in part from their physical positioning within the building and in relation to others. 44 The importance of this symbolic structural status bears example in the changes wrought by the spatial layout of Aboriginal sentencing courts as they differ from the traditional courtroom setting. The shift to the oval table, where all parties are on the same level as the adjudicator, effects a readjustment in social status. Current videolinked encounters make obtaining both a sense of the court space, and one’s place within it, very difficult to achieve. Losing the court building here is imagined as potentially dangerous without acknowledging the power of space to convey respect, provide social structure and underlie the importance of participants’ concerns.
3 Losing the location of the court
Several interviewees spoke of the symbolic importance of the court as an expression of shared values. These values were seen to be both expressed in, and locatable by, the courthouse. One judicial officer compared the setting of limits in the context of a group of people gathered in one location with when the transgressing person is isolated in the videolink suite:
it’s … about saying to people there are limits, there are community limits … there are bounds beyond which you really should not go. And you can say that to a person in a small room who’s looking into a video screen and have potentially some impact I suppose. But if you’ve got somebody sitting in the Court surrounded by other people where you’re saying that, then it does appear to be more of a reflection of what people in a community think about something.
Here the interviewee questions the capacity of videolinked interactions to adequately convey to court participants a sense that the judge is dispensing justice on behalf of the community and in accordance with its values. This is due to the tangibility of that community, through proximity to other community members, being absent for those at the remote end of the videolink. Another judicial officer claimed that the court works to affirm the presence of the community to its citizens:
It is about the affirmation of a community, of a society. You know when you look at the historical origins of the court and the small village community getting together to resolve the dispute between the neighbors or ‘‘who done-in Farmer John?,’’ et cetera; it’s a feeling that the, the jury is a judgment of your peers. The need that we all feel to be understood by those who are questioning us and to be able to directly communicate … we all want to be vindicated, whether accused or accuser or whatever … to be vindicated and accepted as right … from the earliest times when a community has established some system of adjusting disputes, adjusting rights, you’ve had people, the community, coming together and expressing a judgment which affirms their stability as a community and affirms the identities and abilities of the constituent members of that community.
The court is depicted here as a kind of mirror to society – a representation of the collective to the collective. This type of discourse emphasizes the importance of myth-making in the law.
The efforts by the above judicial officer to link the present activities of the court with the past – the continuity and importance of a physical ‘‘coming together’’ – are typical of links commonly made in the profession between tradition and legitimacy. 45 While the notion of the trial as group-performed ritual can be distinguished from notions of a community, such rhetoric might also be interpreted as expressive of judicial anxieties around how legitimacy is constructed. If a defendant being sentenced lacks a sense that they are in a courtroom setting, as a result it may also mean that they do not recognize that they are participating in a group-performed ritual, with a long tradition, that is enforcing the shared values of that society. This may impact upon perceptions that all participants have of both the outcome and the process.
Sociological readings of judicial rituals emphasize how current instances of the trial are linked to all past instances in order to manufacture the court’s authority and entrench the unequal power relationships between participants. 46 Following Bourdieu’s critique of the law, which like any other cultural system reproduces its own self-sustaining logic to authorize its position, Leader describes the trial as a ‘‘collective belief.’’ 47 Legal actors compete over the right to determine the Law; to that end the legal profession perform specific social, economic, psychological and linguistic practices in the courtroom. These deep structures of behavior, or habitus, can be seen as contributing to the ‘‘miscognition’’ of those subject to the courts’ authority from seeing it as anything other than legitimate. 48 According to this analysis, the legitimacy of the Law is contingent on the ‘‘arbitrariness at the heart’’ of its functioning remaining unrecognized by those who are subject to it. 49 Legitimacy therefore is perceived as relative and contingent, tied to the correct enactment of legal rituals, designating appropriate spaces in which those rituals occur and constructing appropriate responses of those witnessing them; all are necessary to reinforce collective beliefs about the power and effectiveness of the Law.
The need for a judicial officer to feel that the values they are enforcing are those of the community they represent, reflects the ‘‘chain of legitimation’’ that authorizes the judicial officer to adjudicate the dispute.
50
In losing the community-context, the fear is that the adjudication and judgment might be perceived as an arbitrary act of violence against the individual. In statements made by judicial officers about the need for the court to connect with the community, these desires were, at times, projected onto the defendant as being their need for such a link. Seen in this light, I return to the words of the judicial officer quoted earlier, who stated:
… they are really hugely charged environments … but people can cope and … I think it is valuable also to a large degree for them to experience the suffering and anguish together, you know, to understand that it’s not a mechanical process, it’s not some arbitrary cold-blooded process.
The link between ‘‘arbitrary’’ and ‘‘cold-bloodedness’’ is particularly interesting in this light. Removing the participant from the communal space of the courtroom, therefore, may have far greater implications than feelings of disconnection. For this stakeholder it speaks directly to perceptions of legitimacy. Regardless of evidence that might suggest otherwise, the implicit assumption here is that in the discrete courtroom, justice is not seen as arbitrary or cold-blooded. The unspoken fear is that by removing certain participants from the courtroom, those appearing remotely may fail to perceive the court – and hence the judge – as legitimate and authoritative. Reflexively, does this fear extend to unsettle the judicial officer’s perception of the legitimacy of their role as authorized representative of the community to make such judgments over individuals and corporations? Such thoughts are particularly dangerous for judicial officers who are faced with the act of judging those who are the most marginal and the most disenfranchised in society.
The fragility of law’s rituals, exposed in these stakeholder comments, highlight its potential arbitrariness. The current design and configuration of court videolinks may challenge a judge’s certainty that their judgments will always be perceived as legitimate, a concern that was echoed in the comments of other stakeholders. For instance, one expert witness described their reservations about sentencing hearings being conducted by videolink as not centering on the defendant, but rather ‘‘the symbolism of sentencing and what it meant for the community.’’ Similarly, a judicial officer commented how they directly involved members of the community during sentencing, particularly when sentencing children, but that they felt this was currently impossible to achieve by videolink:
… very important in sentencing children is knowing the family, immediate, extended … the support … I’ll make sure they are part of the proceedings … and get them to understand the importance of their role … I don’t use the videolink … where I want the child, the family, the community to all have an impression, know the law, I go there … The videolink facilities don’t really cater for … that sense of community. Whereas if you’re there, and you’re in the courtroom, the courtroom can be packed with community. So where … you’re wanting to make a point, a very serious point, I don’t use videolinks. I go there so you can basically interact with as many people in the community as possible all at the one time which is not possible on the videolink … You can’t ever disconnect the law and the Court from community … ’Cause it’s the people’s – that’s where the people need to come and see justice dispensed. So you’ve got to be careful that you don’t just say ‘‘we’ll use videolinks for everything.’’
The prospect of widespread videolinked proceedings, or a wholesale-distributed court system, raises the important question: ‘‘where’s the court located?’’ For this judicial officer, it was important that a community knew where to go to see justice being dispensed; the need for a court to be easily located by the public in order that they might readily view proceedings – critical to the principle of ‘‘open justice’’ – is mirrored in the discourse. 51 However, while the unlocked door and the public gallery are guarantees that public scrutiny is possible in courtroom proceedings, it is often the case that this opportunity is not taken up. Learning of court cases and their outcomes through newspapers or televised news reports, the façade of the court is increasingly the main contact that the general public has with the courthouse, its ‘‘virtual presence outweighing its urban presence.’’ 52 The potential broadcasting of trials throws up similar questions: if it is acceptable for some court participants to access the court remotely, why not the general public? 53 Perhaps what this data shows is the symbiotic relationship between the absent public and the courtroom. The public gallery, often littered with empty seats, emerges here as an important symbol of potential, if not always actual, public scrutiny; a symbol bearing particular relevance to the functioning of the role of judicial officer as they adjudicate on behalf of society.
IV. Conclusions: The Manufacture of Legitimacy and the Space of Law
… often the witness appears remote. It’s not just that they are remote, they appear remote. They appear less real than the people who are actually appearing living in Court (Judicial Officer).
In many ways the introduction of videoconferencing technology into courtrooms is mundane. These types of technological shifts are happening across almost every public institution to varying degrees, fundamentally changing our relationship to urban space in ways that challenge the role of architecture to make social organization and power legible. 54 Some view these changes as necessarily destructive, altering the basic fabric of our lives, our relationship to the civic and leading to an accumulative sense of loss unless appropriate action is taken. 55 However, criticism of the dislocating and distancing effects of screened activities, such as video games, counterpoint arguments by those suggesting that some citizens identify themselves as more at home in ‘‘virtual’’ or ‘‘synthetic’’ worlds than they do in the ‘‘real world.’’ 56 Some even argue that it may come to a point where experiences not mediated by communication technologies will feel less real than those that are, to the point at which people may feel at the mercy of larger forces, or that they could simply press a re-set button so their actions will have no lasting consequences. 57 It is not difficult to see how such a prospect may have serious ramifications towards notions of responsibility in the legal arena, particularly if the distributed court migrates to more synthetic, computer-generated, platforms.
The question remains: can the perceived losses caused by videolinks as reported here be addressed by the ways in which they are designed and operated? To what extent are these losses inherent to participating remotely by videolink, and therefore, unresolvable? 58 For instance, to what extent could an entirely distributed court network, with no centrally identifiable and locatable courthouse ‘‘hub,’’ adequately convey a sense of shared values? The discourse of loss also points to the ways in which particular binary oppositions have emerged as privileging ‘‘face-to-face’’ encounters (the nearness of the discrete court experience and the sensory fullness of face-to-face encounters) over the ‘‘remote’’ encounter (the distance that the distributed court experience brings and the coldness of the screen). Successful remote court participation would have to disrupt such binaries to the extent that remote participants are perceived as ‘‘human,’’ ‘‘warm,’’ ‘‘real’’ and ‘‘near.’’
While this article has critiqued the distributed court system, caution should be taken with nostalgic claims that proceedings where every participant comes together in the one courtroom are superior. 59 Symbolically, if not in reality, courtrooms are conceptualized as an impartial platform for justice; supposedly they ensure ‘‘equality of arms’’ between parties in civil trials and fairness towards the accused in criminal cases. The extent to which the discrete court space is able to achieve this is questionable. While many of law’s fundamental principles are symbolically reassured by court events held in courtrooms, their designs do not always support their enactment. Aspects of court design, such as the dock that effectively separates defendants from their counsel, help marginalize certain participants in the courtroom. 60 Likewise, attempts to symbolize important aspects of justice in courthouse designs often fall spectacularly short of their aims. The glass facades of many recent courthouses are derided as superficial symbolic gestures. Supposedly representing transparency and accountability, they are effectively undermined by the court’s ‘‘inner-workings’’ remaining opaque, with public participation discouraged spatially. 61
Regardless of these limitations, the data reported here demonstrates that the building and maintaining of courthouses serve symbolic purposes for stakeholders beyond those being imagined currently in distributed forms of justice. While Bourdieu does not specifically mention the physical setting of the trial as part of the habitus of the juridical field, one could interpret the symbolic function of the courtroom through Foucault’s reading of the disciplinary power of space, as a text that produces its own effects. 62 The institution of a judicial space suggests borders between those actors who are qualified to participate, and those who are not. Law’s ‘‘power of form’’ is therefore operating not only linguistically – with the heightened legal discourse of the trial remaining foreign to those outside the profession – but also architecturally through the spatial placement of participants. 63 The above analysis suggests that not only are the creation and articulation of boundaries critical to the way the law functions, but of equal importance is understanding the relationship between perceptions of legitimacy and the environmental setting of legal proceedings. It poses a view of state-sanctioned adjudication as not intrinsically legitimate, but as manufactured as such.
This data therefore supports an examination of the complexity of the symbolic language of court architecture as it affects the operation of the law in society. It draws a direct line between the symbolic potential of court architecture and the production of law’s legitimacy and authority. Rather than an unessential product, the links between the space of law and the society within which it operates, particularly during acts of judging and sentencing, are revealed as fundamental to the ability of the court to foster perceptions of legitimacy. Current videolink installations often ignore the important role that architecture plays in conveying social structure, cues for behavior and respect for the court event and litigants’ concerns. Remote court spaces need to be designed with this in mind. Those designing distributed courts of the future need to attend to the fragility of law’s rituals and the importance of symbolism so that distributed forms of justice do not diminish the law, but enhance it.
Footnotes
Acknowledgements
I would like to thank the two anonymous reviewers for their very helpful comments. I am also especially grateful to Linda Mulcahy, David Tait, Gregory Missingham, Anne Wallace and Gethin Davison for their invaluable comments on earlier drafts.
Funding
This research was funded by an Australian Research Council Linkage Grant for ‘‘The Gateways to Justice’’ Project (2007–2010), LP0776248. Lead Investigator: Professor David Tait (University of Western Sydney).
1.
For a discussion of the notion of the ‘‘distributed court,’’ see Emma Rowden, ‘‘Virtual Courts and Putting ‘Summary’ Back into ‘Summary Justice’: Merely Brief, or Unjust?,’’ in Jonathan Simon, Nicholas Temple and Renée Tobe (eds), Architecture and Justice: Judicial Meanings in the Public Realm (Farnham: Ashgate, 2013), pp. 101–13.
2.
Emma Rowden, ‘‘Remote Participation and the Distributed Court: an approach to court architecture in the age of video-mediated communications,’’ PhD thesis, The University of Melbourne, 2011, p. 104, pp. 228–9.
3.
Op cit., p. 105.
4.
Some predict even juries may eventually deliberate remotely. See Gordon Bermant, ‘‘Courting the virtual: Federal courts in an age of complete interconnectedness,’’ Ohio Northern University Law Review 25 (1999), 527–62, 551.
5.
This research was funded by an Australian Research Council Linkage Grant for ‘‘The Gateways to Justice’’ Project (2007–2010), LP0776248. Lead Investigator: Professor David Tait (University of Western Sydney).
6.
Joseph Jaconelli, Open Justice: A Critique of the Public Trial (Oxford: Oxford University Press, 2002), p. 11.
7.
Linda Mulcahy, Legal Architecture: Justice, Due Process, and the Place of Law (London: Routledge, 2011), p. 17; Richard Mohr, ‘‘In Between Power and Procedure: Where the Court meets the public sphere,’’ JoSCCI 1 (1999).
8.
Kim Dovey, Becoming Places (London: Routledge, 2009), pp. 125–38.
9.
Richard Mohr, ‘‘Authorised Performances: The Procedural Sources of Judicial Authority,’’ Flinders Journal of Law Reform 4(1) (2000), 63–79, 70.
10.
Clare Graham, Ordering Law: The Architectural and Social History of the English Law Court to 1914 (Abingdon: Ashgate, 2003), p. 12; Catherine Bell, Ritual: Perspectives and Dimensions (New York: Oxford University Press, 2009), pp. 138–69.
11.
Rob McQueen, ‘‘Of Wigs and Gowns: A Short History of Legal and Judicial Dress in Australia,’’ Law in Context 16(1) (1998), 31–58.
12.
Peter Goodrich, ‘‘Law and Language: an historical and critical introduction,’’ Journal of Law and Society 11(2) (1984), 173–206.
13.
14.
Antony Duff, Lindsay Farmer, Sandra Marshall and Victor Tadros (eds), The Trial on Trial – Volume 1: Truth and Due Process (Oxford: Hart Publishing, 2004), pp. 260–71.
15.
Charles Goodsell, The Social Meaning of Civic Space: Studying Political Authority Through Architecture (Lawrence, KS: University of Kansas Press, 1988), pp. 12–13.
16.
See Judith Resnik and Dennis Curtis. Representing Justice: Invention, Controversy, and Rights in City States and Democratic Courtrooms (New Haven, CT: Yale University Press, 2011); Graham, Ordering, pp. 267–314; Mulcahy, Legal, pp. 112–38; Costas Douzinas and Lynda Nead (eds), Law and the Image: The Authority of Art and the Aesthetics of Law (Chicago, IL: University of Chicago Press, 1999); Robert Jacob, ‘‘The Historical Development of Courthouse Architecture,’’ Zodiac 14 (1995), 30–43.
17.
Thomas Scheffer, Kati Hannken-Illjes and Alexander Kozin, ‘‘How Courts Know: Comparing English Crown Court, U.S.-American State Court, and German District Court,’’ Space and Culture 12(2) (2009), 183–204, 184.
18.
Resnik and Curtis, Representing, p. 349.
19.
20.
Kate Auty, ‘‘Room with a View – Courtrooms and Culture,’’ Architecture Australia 98(5) (2009), 49-51, 50.
21.
Op cit., 50.
22.
Op cit., 50.
23.
Rowden, ‘‘Remote Participation,’’ p. 67.
24.
Anne Wallace, ‘”Virtual Justice in the Bush”: The Use of Court Technology in Remote and Regional Australia’, Journal of Law, Information and Science, 19 (2008), 1–21.
25.
Emma Rowden, ‘‘The Remote Witness Facility for vulnerable and child witnesses: new perspectives on an emerging spatial typology / As instalções à distância para crianças e testemunhas vulneráveis: novas perspectivas a propósito de uma tipologia especial emergente,’’ in Patrícia Branco (ed.), Sociologia do(s) Espao(s) da Justia: Diálogos interdisciplinares (Coimbra: ALMEDINA ces, 2013), pp. 161–83.
26.
For more detail, see Rowden, ‘‘Remote Participation,’’ pp. 43–64.
27.
Interviewees’ names have been anonymized, their speech is reported throughout in italics.
28.
Industry partners involved in interviewee recruitment included the Department of Justice Victoria, the Australian Federal Police, the Western Australian Department of the Attorney General and the Department of Public Prosecutor Australian Capital Territory. Five interviewees were from jurisdictions in other countries.
29.
Interviews were conducted with Dr Anne Wallace (Edith Cowan University, Perth). See also Emma Rowden, Anne Wallace and Jane Goodman-Delahunty, ‘‘Sentencing by Videolink: Up in the Air?’’ Criminal Law Journal 34(6) (2010), 363–84; Emma Rowden, Anne Wallace, David Tait, Mark Hanson and Diane Jones, Gateways to Justice: design and operational guidelines for remote participation in court proceedings (Sydney, University of Western Sydney, 2013), 
(accessed March 31, 2015).
30.
Patti Lather, Getting Smart: Feminist Research and Pedagogy with/in the Postmodern Critical Social Thought (New York: Routledge, 1991).
31.
Stakeholders who had day-to-day experience of using the technology (such as judicial officers, lawyers, and expert witnesses) raised these issues more than those involved with its implementation and administration (such as architects, court administrators and technicians). Concerns expressed ranged from how videolinks affected the ability of counsel to cross-examine effectively, perceptions of the remote participant, the behavior of the remote participant, and the effects on the production of the evidence itself.
32.
See Rowden et al., Gateways, pp. 29–33; Rowden, ‘‘Remote Participation,’’ pp. 173–282.
33.
Pat Carlen, Magistrates’ Justice (London: Martin Robertson & Co. Ltd., 1976).
34.
In this sense, the courtroom is ‘‘already virtual’’: Julienne Hanson, ‘‘The Architecture of Justice: Iconography and Space Configuration in the English Law Court Building,’’ Architectural Research Quarterly 1 (1996), 50–59, 59.
35.
Juhani Pallasmaa, The Eyes of the Skin: Architecture and the Senses (2008 edn) (Chichester: John Wiley & Sons Ltd., 2005), p. 19.
36.
Op cit., p. 37.
37.
Op cit., p. 19.
38.
While ‘‘dehumanized’’ or ‘‘depersonalized’’ was more frequently used in relation to defendants, they were also used to describe remote appearances from child and vulnerable witnesses: Mulcahy, Legal, p. 178; Molly Johnson and Elizabeth Wiggins, ‘‘Videoconferencing in Criminal Proceedings: Legal and Empirical Issues and Directions for Research,’’ Law & Policy 28(2) (2006), 211–27, 215; Anne Bowen Poulin, ‘‘Criminal Justice and Video Conferencing Technology: The Remote Defendant,’’ Tulane Law Review 78 (2004), 1089–167, 1119; Ronnie Thaxton, ‘‘Injustice Telecast: The Illegal Use of Closed-Circuit Television Arraignments and Bail Bond Hearings in Federal Court,’’ Iowa Law Review 79(1) (1993), 175–202, 199. One judicial officer interviewed talked of ‘‘depersonalisation,’’ another of ‘‘dehumanizing.’’ However, another judicial officer felt that the dehumanizing aspect gets ‘‘overblown.’’
39.
Amos Rapoport, The Meaning of the Built Environment: A Nonverbal Communication Approach (Beverly Hills, CA: Sage, 1982).
40.
Edward Hall, The Hidden Dimension: Man’s Use of Space in Public and Private (London: The Bodley Head Ltd., 1969).
41.
Contempt of court can arise in civil or criminal proceedings and is an inherent power of the court, sometimes reiterated in legislation, for instance: Magistrates Court Act (Western Australia) 2004, s15.
42.
It should be noted that not all interviewees felt that the ability to cross-examine or test evidence was diminished when conducted by videolink.
43.
David Tait, ‘‘Remote and Intimate Justice: Challenges and Paradoxes for Courts of the Future,’’ paper for Australia and New Zealand Law Reform Commissions, 2004.
44.
Roger Barker, Ecological Psychology: Concepts and Methods for Studying the Environment of Human Behavior (Stanford, CA: Stanford University Press, 1968).
45.
Graham, Ordering.
46.
47.
Op cit., p. 15.
48.
Pierre Bourdieu, ‘‘The Force of Law: Toward a Sociology of the Juridical Field’’ (Trans. Richard Terdiman), The Hastings Law Journal 38 (1987), 805–53, 817.
49.
Op cit., 844.
50.
Op cit., 824.
51.
Mulcahy, Legal, pp. 27, 173.
52.
Kim Dovey, Becoming Places (London: Routledge, 2009), p. 132.
53.
See Leader, ‘‘Trials’’; Daniel Stepniak, ‘‘Why Shouldn’t Australian Court Proceedings Be Televised?’’ UNSW Law Journal 17(2) (1994), 345–82.
54.
William Mitchell, City of Bits: Space, Place and the Infobahn (Cambridge, MA: MIT Press, 1995), p. 103.
55.
Op cit.
56.
Edward Castronova, Synthetic Worlds: The Business and Culture of Online Games (2006 edn) (Chicago, IL: University of Chicago Press, 2005), pp. 1–2.
57.
Lydia Reeves Timmins and Matthew Lombard, ‘‘When ‘Real’ seems mediated: inverse presence,’’ Presence: Teleoperators & Virtual Environments 14(4) (2005), 492–500, 499.
58.
Rowden, ‘‘Virtual Courts.’’
59.
Carlen, Magistrates’; Mulcahy, Legal.
60.
Linda Mulcahy, ‘‘Putting the Defendant in their Place: why do we still use the dock in criminal proceedings?,’’ British Journal of Criminology 53 (2013), 1139–56; David Tait, ‘‘Glass Cages in the Dock: Presenting the Defendant to the Jury,’’ Chicago Kent Law Review 86(2) (2011), 467–95.
61.
See Hanson, ‘‘The Architecture of Justice’’; Mulcahy, Legal, pp. 152–3; Resnik and Curtis, Representing, pp. 340–42.
62.
Michel Foucault, Discipline and Punish: The Birth of the Prison (Trans. Alan Sheridan) (London: Allen Lane, 1977); ‘‘The law is the quintessential form of ‘active’ discourse, able by its own operation to produce its own effects’’ (Bourdieu, ‘‘Force,’’ 839).
63.
Bourdieu, ‘‘Force,’’ 809.