Future Tense

Justice, Livestreamed

Many courts have moved to Zoom. To ensure public access, they’ve turned to YouTube.

A still of a gavel in a YouTube player.
Photo illustration by Slate. Photo via Bill Oxford/Unsplash.

Dick Alcalá, a senior judge in El Paso, Texas, straightens his tie in front of his computer camera, which is feeding footage from a sensibly decorated room in his home to Zoom, and then into a YouTube livestream. Alcalá stands up and zips a black judicial robe over his shorts and untucked shirt. He lets in attorneys from the Zoom waiting room and switches his background to a photo of the court.

So begins a 7½-hour livestream of a hearing about an expert witness in a criminal case. The defense lawyer sits in his office—with the defendant, wearing a mask, at a desk behind him—as he takes turns with the prosecutors in questioning the witness, screen-sharing documents at various intervals.

This is what court looks like in many parts of the country these days, and in some states, it’s available on YouTube. If you tire of Alcalá’s virtual courtroom, you can jump over to elsewhere in Texas, where child welfare cases are being streamed. Or you could click to Wisconsin or Michigan, where defendants join Zoom via video from the county jails and judges breeze through preliminary hearings and dole out sentences for parole violations.

“It’s like instead of watching soap operas, you can watch court proceedings,” Alcalá told me.

Alcalá is one of the thousands of judges around the U.S. who have been forced to move their courtrooms to remote conferencing technology. Since the onset of the pandemic, 38 states have issued orders to mandate or urge the use of virtual hearings, according to the National Center for State Courts.

Courts are trying to figure out what technology, used in what way, can best approximate—and perhaps improve upon—the experience offered in a physical courtroom. But in that process, as the American Bar Association noted in a recent report, many courts “have not prioritized public access.” Public access is an accountability measure: In criminal cases, the Sixth Amendment guarantees the right to a “public trial,” and the First Amendment protects the right of the press and the public to observe court proceedings more generally. Courts can limit public access only for compelling reasons under narrow circumstances.

Still, the people sitting on the stiff wooden benches in physical courtrooms usually have a significant interest in a case (a big enough interest to travel to the courtroom and pay for transportation and potentially child care, for instance). When justice is livestreamed, that calculation is different, which puts courts in the complex position of guaranteeing public access in the vast majority of cases, while also protecting privacy as appropriate.

Texas, which has held more than 350,000 virtual hearings since mid-March, has been a leader in promoting public access. Court administration encouraged judges to create YouTube channels, which have been collected into an online directory.

At first, some judges were reluctant to livestream, said David Slayton, the administrative director of Texas’ Office of Court Administration and one of the masterminds behind the state’s virtual migration.

One concern centered on recording, which requires a judge’s permission. Online, many court livestreams come with a “do not record” watermark, but there’s no real way to enforce that rule, leading to fears that recordings could be altered or misused.

Another part of the initial reluctance was political, explained Emily Miskel, a judge in Collin County. In Texas, judges are elected every four years, and “everyone’s worst fear is that you go viral in your election year,” she said.

Some judges also worried about livestreaming sensitive matters, Slayton said, like family violence or child protection cases.

Judges have a certain amount of leeway in deciding whether to stream those cases—but for Miskel, the cases that involve the most “sensitive and private” situations are also the cases that most need public oversight. “I hear child protection cases where kids are removed from their parents by the government. We want those online most of all. … We want the public watching what judges are doing in situations where we’re tearing kids away from families,” she told me.

Virtual hearings mean that attorneys need to be particularly careful about protecting clients’ sensitive data—a YouTube viewer, for example, recently called Miskel’s court to warn that an attorney had screen-shared a tax return with their client’s unredacted Social Security number.

Thus far, many courts have postponed jury trials, though some states are conducting in-person proceedings. Other jurisdictions are experimenting with hybrid models, such as making jurors come to the courthouse and streaming the trial from a different room in order to maintain social distance. In May, Miskel presided over the first completely remote jury trial. (It was a civil case with a nonbinding verdict.) On Tuesday, Texas conducted what Slayton said was the first fully remote criminal jury trial in the country, a fine-only traffic case heard by Justice of the Peace Nicholas Chu. The case, which was livestreamed from jury selection to sentencing, was a technical glitch-filled experiment that underscored the many problems inherent in Zoom court.

Experts have raised significant concerns about due process and equity in remote proceedings, particularly in criminal jury trials. Requiring access to technology, internet, and a quiet, private space would certainly skew jury pools, but that’s a solvable problem if courts help provide access to devices, safe spaces to carry out jury service (such as separate rooms in courthouses, if needed), and robust technical support. In Tuesday’s trial, the state provided iPads to potential jurors who needed them, but several members of the jury pool had technical or connectivity problems that ultimately prohibited them from serving.

Still, remote proceedings certainly have benefits: Participants save time and money on transportation and child care, for one. Appearance rates for individuals representing themselves—such as in eviction, child support, or traffic cases—have “skyrocketed,” Slayton said. Miskel, too, has found more parent participation in remote child welfare cases.

“I’m seeing a lot more engagement from people who don’t have the resources to take a paid day off work and drive their working car to the courthouse,” she told me.

For now, court YouTube isn’t drawing big crowds, nor is it meant to. We don’t want everyday courtrooms to become reality TV shows, and we probably don’t want judges to become full-fledged YouTubers.

As a viewer, clicking through court livestreams mostly turns up procedures that are bureaucratic, technical, and honestly pretty boring. But those mundane videos are mixed in with stories of substance abuse, violence, and injustice, of highly personal struggles—judges asking parents about addicted children, children about addicted parents. It’s hard to take your eyes off the squares of strangers talking through what might be some of the most consequential moments of their lives. It feels invasive.

It also feels, in a strange way, important. We’re at a moment, after all, when the American justice system could use some more viewers.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.