Remote hearings and family law: The judiciary are accepting remote hearings, including in care order cases.
Judge Mrs Justice Lieven said we should not consider: “Evidence given remotely as any less reliable or truthful than evidence given in person.”
Videoconferencing technology is proving essential to keep the UK and world running during lockdown and has been used successfully to hear court cases. In fact, a judge prepared to proceed with cross-examining parents through Zoom in a care order case.
Increasingly judges see remote hearings as a viable option, even in complex and emotionally stressful family proceedings. One key objection to remote hearings has been whether the court can fathom whether defendants are telling the truth or being deceptive.
The evidence would suggest otherwise.
“Psychologists and other students of human communication have investigated many aspects of deceptive behavior and its detection. As part of this investigation, they have attempted to determine experimentally whether ordinary people can effectively use nonverbal indicia to determine whether another person is lying. In effect, social scientists have tested the legal premise concerning demeanor as a scientific hypothesis. With impressive consistency, the experimental results indicate that this legal premise is erroneous. According to the empirical evidence, ordinary people cannot make effective use of demeanor in deciding whether to believe a witness. On the contrary, there is some evidence that the observation of demeanor diminishes rather than enhances the accuracy of credibility judgments.”
OG Wellborn, “Demeanor” (1991) 76 Cornell LR 1075. See further Law Commission Report No 245 (1997) “Evidence in Criminal Proceedings”, paras 3.9–3.12. While the studies mentioned involved ordinary people, there is no reason to suppose that judges have any extraordinary power of perception which other people lack in this respect.
This text has been referenced in a recent court case dated 05/05/2020: A Local Authority v Mother.