Green – the new colour of justice?

For centuries, human beings have been seeking the truth. We have sought it without even knowing if we’d be able to live with it.

To find the truth, human beings came up with the concept of witness hearing. We believed that by questioning a person who had seen what happened, we would find out the truth. Then it turned out that the truth was always more or less subjective and thus coloured, and its colour depended on the colour of the lenses you looked through it.

Then there emerged a profession specialised in finding the truth. This profession believed that it could find out the truth by posing questions to a witness and observing and listening to them. The idea came about that the live, on-site hearing of witnesses would be a key guarantee for the execution of justice. As a result, people were prepared to fly to the other side of the world to find out the truth in oral hearings.

For 15 months now, we have lived in a virtual world, in which the oral hearings have in many cases become digital, carried out remotely. It has no longer been possible to observe the witness and assess their credibility live and on site.

Thus, witness hearing has taken on new colours. We have faced new questions on the path of seeking the truth. Is finding out the truth possible anymore? Has digitalisation resulted in us ultimately losing the truth?

Does an online hearing undermine the finding of the truth to such an extent that returning to the old normal is necessary?

In the recent Queen Mary Survey, 12% of the respondents found “better view of people’s faces than at in-person hearings” as one of the main advantages of virtual hearings. This is certainly true if the camera is pointed at the person’s face. However, at the same time, we lose visibility of everything else. We won’t see how the witness is wiggling their legs nervously or fiddling with the pen or how the papers are folded to dog ears. Neither will we sense the emotional state of the witness as we would at an in-person hearing.

However, the third biggest disadvantage of virtual hearings reported in the survey (38% of the respondents) was that “it is more difficult to control witnesses and assess their credibility“. I’m sure it is certainly easier to modify the truth when sitting on your couch at home than under the keen eyes of the tribunal in the courtroom. When the camera is pointed at the face of the witness, we will also miss things that potentially happen around them. For instance, if there is someone providing carefully pre-prepared answers on a screen placed in front of the witness.

Digital proceedings have significantly reduced the carbon footprint caused by seeking the truth. Flying armies of lawyers and witnesses around the world have decreased to a fraction of what it used to be. Seeking the truth has become greener, but has this happened at the cost of finding the truth?

According to my experience, the concerns related to controlling witnesses have been possible to resolve by the parties agreeing that each party has the right to send their representative to be present in the same room from where the other party’s witness hearing is streamed online. In these cases, the presence of a local counsel hired and sent by the other party to the same room has been enough to prevent any temptation to distort the witness testimony.

How about the assessment of credibility then? It’s crystal clear that some interaction between people is lost in online communications but the big question is: Does an online hearing undermine the finding of the truth to such an extent that returning to the old normal is necessary? And if it does, is the absolute truth the only goal we can live with? Or are we ready to live with an outcome that serves as a basis for moving forward and continuing doing business between the parties? Might there be a solution that promotes the planet’s well-being in ways other than finding the absolute truth and would make it possible for life to go on?

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