Skype in the justice system

I'm Damien Carrick and this is the Law Report which, thanks to the wonders of technology, you can access anywhere, anytime via podcast or audio on demand, both available at the ABCs website, abc.net.au/rn. All you need is a smart phone, tablet or computer. These ubiquitous devices are also all you need to Skype someone, either next door or on the other side of the world. What does Skype mean for our courtrooms? We are all familiar with evidence delivered via videoconferencing, what about Skype? Academics Dr Marilyn Krawitz and Justine Howard are both based at Notre Dame University in Fremantle.

Marilyn Krawitz: Well, the thing with videoconferencing is that it's more stable and reliable. You're going over a dedicated telephone line as opposed to the internet which could have problems regarding not having enough bandwidth or possibly security or that sort of thing. But Skype is free. As opposed to with videoconferencing you have to pay not only to set it up, and that could be hundreds of dollars, but to actually talk over it you have to pay…every time you talk to someone over videoconferencing you have to pay.

Damien Carrick: So Skype is something which everybody can access from anywhere, that's the big advantage I guess in terms of its use in a courtroom. Justine Howard, if I can bring you in here, are there any security concerns around the use of Skype in courtrooms?

Justine Howard: A lot of people assume with Skype that because it is encrypted that it is actually quite safe to use. And from what we have been able to determine, it can actually be hacked and therefore it poses a real problem when it is used in a courtroom context. The possibility is, like we've seen with the Zimmerman trial in the United States where a gentleman was on trial for murder and a witness was actually giving testimony over Skype.

[Excerpt of Zimmerman trial]

Whilst that the witness was giving his evidence over Skype, other callers then came in and started to try and be answered on that Skype conversation.

[Excerpt of Zimmerman trial]

I should say from the outset though, that particular testimony was being televised, so that user's Skype handle or that telephone number, if you like, in a Skype context, was actually visible to other people.

[Excerpt of Zimmerman trial]

Now, what that meant was that other people could then see that Skype handle or that identification number, if you like, and then started calling in. The professor who was giving evidence had to repeatedly deny those calls.

Damien Carrick: So it sounds like the whole hearing somewhat degenerated into a bit of a comedy of errors.

Justine Howard: Absolutely. What they ended up having to do was the judge indicated that they would have to use another method of communicating with the witness. What they then did was decided to continue the evidence over a telephone line.

[Excerpt of Zimmerman trial]

I think, Damien, it's really important to note that obviously currently at this point in time Australian trials are not televised to the mass audience in Australia. But I think it still raises some important security concerns in relation to the use of Skype.

Damien Carrick: Marilyn Krawitz, if I can come back to you, how widespread is the use of Skype in courts in the USA?

Marilyn Krawitz: Certainly it's more widespread than here. It happened, for example, besides the Zimmerman trial there was a trial in Gainesville in Georgia in the United States, also in Arkansas, it's been used in New York, it has also been used in some really novel ways. For example, in Florida there are some police officers who when they arrive on crime scenes, they will send by email documents requesting a search warrant, and then they will actually at the crime scene itself appear on Skype and ask for a search warrant. They don't have to go to a courthouse.

Damien Carrick: There is a very interesting pilot program being conducted by New South Wales police, with the permission of the New South Wales local Court. Tell me about that.

Marilyn Krawitz: Sure. Well, in 2014 the New South Wales local Court decided upon a pilot program whereby they would permit witnesses to testify over Skype. So this is primarily expert witnesses and police officers. And it was said that one of the reasons for this pilot project was it would save police officers an enormous amount of time. There has not been any research that I could find about the success of the project, but the project obviously is still in early days. But we should also add that Skype is also being used in other jurisdictions in Australia for witnesses to testify. So, for example, in the New South Wales District Court, also in the Federal Court of Australia as well, a witness has testified over Skype. And also in some of the tribunals.

Damien Carrick: I think those cases, the one in the Civil and Administrative Tribunal in New South Wales was in the occupational division and it was evidence from Japan from a former patient of a midwife or a nurse who was facing some kind of disciplinary proceedings. And the AAT, the Administrative Appeals Tribunal in Adelaide, that was where a veteran gave evidence via Skype from the Philippines where he lived. This was a hearing about his veterans' entitlements.

Coming back to that trial in New South Wales, as I understand it it's confined only to uncontentious evidence. Why is that distinction being made between contentious and uncontentious evidence?

Marilyn Krawitz: Well, it's interesting question, Damien, because how do you really define what is contentious and what is uncontentious? And I would think that it might have something to do with credibility because on Skype you may not be able to see people's expressions and their demeanour as well as you might over videoconferencing. And as we know, the demeanour of a witness is important to the fact finders. But also the parties can make submissions on the demeanour of witnesses.

Damien Carrick: Justine Howard, I'm imagining that it would be useful in all sorts of situations, things like dying declarations from hospital beds would be one area.

Justine Howard: Absolutely. I think really the possible applications of Skype within a legal context are virtually limitless. I suppose the only caveat to that though is really the concerns about security, the witness demeanour, and issues that Marilyn and I have canvassed. But if they are able to be sufficiently overcome and adequately safeguarded, I think there are so many ways that Skype could potentially be used.

And in the United Kingdom was where one of the judicial officers didn't actually use Skype within the hearing itself, however it concerned an adoption application by a couple who were based in the United Kingdom concerning a child that was originally from Nepal. And the birth parents of the child were still alive and well in Nepal and fully consented, but the judge themselves actually wanted assurances that the parents where in fact happy to consent to the adoption. The judgement does not make it clear as to whether or not it occurred in the courtroom but it appears to have occurred outside of the courtroom and the judge has simply accepted that this has occurred. But the Skype link was set up so that the parents in Nepal went to the Nepalese solicitor's office to sign the translated papers. That was then viewed in London by the applicants' solicitors where all parties were then satisfied that the parents had consented, they were fully informed. But in addition the child, when it grew up, would actually have satisfaction of the fact that the parents were in fact happy, in the context that this was an adoption that the child very much wanted.

Marilyn Krawitz: I just want to add on to what Justine was saying, for all we know in 10 to 20 years all the security problems will be worked out, and also to be able to see the video and image on Skype it will be equal to videoconferencing. Who knows where Skype will go in the future, where videoconferencing will go in the future? Because at a conference that I attended in September on this very topic, and it's the International Association of Court Administrators, and they were talking about jurors attending court by Skype. Can you imagine? And that could, say, decrease the rate of jurors absconding from their duty. Obviously there's no way on earth that could happen now, there's no way, it just would be impossible, but who knows whether something like that could happen in 20, 30, 40 years. The sky's the limit. So there are just so many other interesting issues that are offshoots of this Skype question.

Damien Carrick: Imagine that, being a juror and sitting at home on your couch. What a crazy, fascinating idea. Perth lawyer Dr Marilyn Krawitz, lecturer at Notre Dame University Law School, speaking there with her colleague, Justine Howard, who is a lecturer in dispute resolution.

That's the Law Report for this week. A big thank you to producer Anita Barraud, and also to audio producer Mark Vear. Talk to you next week with more law.