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Research suggests that whether trials are conducted virtually or in person may influence the number of defendants who plead guilty. Some evidence suggests defendants may be more likely to plead guilty when appearing virtually. If virtual courts do encourage guilty pleas, this may explain the higher than normal plea rates seen during the coronavirus pandemic in 2020.

Terry, Johnson, and Thompson, 2010

This study examined outcomes in virtual magistrates courts over a period of a 12 month pilot in London. In the virtual courts, defendants appeared in court via a video link while remaining in the police station in which they were charged.

The study found that guilty pleas in virtual courts were three percentage points higher than in the comparator area (75% compared to 72%). Guilty plea rates were particularly likely to be higher in cases of theft, public order, and motoring offences when cases were heard virtually. Guilty pleas in virtual courts were slightly higher when defendants were unrepresented. Defence solicitors interviewed as part of this study were concerned that appearing from a custody suite in a police station might influence the behaviour of defendants, for example by encouraging them to plead guilty or refuse representation as a means of speeding up the process.

Standing Committee for Youth Justice, 2018

In the context of youth justice, legal professionals expressed mixed opinions on how appearing remotely may influence plea rates in children. Some believed that appearing remotely would not make a difference to children who would follow the advice of their solicitor either way, while others felt children appearing via video link might feel resigned to entering a guilty plea, particularly when in custody while doing so.

Plotnikoff and Woolfson, 2000

This study examined outcomes in a pilot using video link for plea and directions hearings in custody cases committed at a video link hearing from Manchester Magistrates’ Court. Both defence and prosecution advocates felt that video link hearings hampered their discussions with the defendant about plea. The guilty plea rate at video plea and directions hearings was higher than the average rate for all plea and directions hearings at Manchester Crown Court during the same period.

Terry & Surette, 1986

This study examined video arraignments in Miami, Florida, and reported that 10.7% of 337 defendants asked said that they would have pled differently if they weren’t “on TV.”

There is some evidence that sentences given in virtual courts may be harsher than sentences given in-person. Research examining outcomes in virtual magistrates court over a 12-month pilot in London found that virtual courts produced approximately three percentage points of extra custodial sentences compared to the comparator group (10% of all sentences compared to 7% in the comparator group) and three percentage points fewer community sentences compared to the comparator group (14% of all sentences compared to 17% in the comparator group) (Terry, Johnson, and Thompson, 2010).

More anecdotally, research has reported opinions of legal professionals and defendants that sentences may be harsher or bail may be granted less frequently when appearing virtually, for example because people may appear “shifty” on screens or may feel their case is a foregone conclusion when appearing from custody (Gibbs, 2017) or because it’s harder to send people to jail when they are in front of you as a real person (Diamond, Bowman, Wong, and Patton, 2010).

In the context of youth justice, a qualitative study involving interviews with legal professionals highlighted the risk that judges may be unable to see vulnerabilities of children so clearly when sentencing remotely, meaning mitigating factors may be harder to identify (Standing Committee for Youth Justice, 2018).

The contention that outcomes may be harsher in virtual courts is supported by research in the asylum context where some research suggests that immigrants are more likely to receive asylum in person than over video (Walsh and Walsh, 2007).

Some research from pilot virtual courts shows that those using virtual courts may be more likely to opt to self-represent (Terry, Johnson, and Thompson, 2010).

Survey responses from legal professionals also suggest that defendants who are unrepresented may be most disadvantaged by virtual hearings – just under three-quarters of survey respondents felt that video hearings negatively affected the participation of unrepresented defendants (Gibbs, 2017).

Research also suggests that using virtual rather than in-person courts may influence the quality of the relationship between an advocate and their client.

• Lawyers have raised concerns about discussing sensitive matters with their clients over video link, and video link hampering confidential communication and the provision of legal advice during a hearing (Plotnikoff and Woolfson, 2010; Terry, Johnson, and Thompson, 2010).
• Defendants have noted concerns about video link being a barrier to communicating with their lawyer and leading to them not being represented effectively (Plotnikoff and Woolfson, 2000; McKay, 2015). However, one study of two experimental virtual trials suggested communication may be enhanced by using Zoom or Skype in virtual courts rather than the traditional dock where conversations may be conducted through a glass screen or at a distance (Mulcahy, Rowden, and Teeder, 2020).
• Research in Australia highlights a risk that where defendants appear via video link from prison and their lawyers are at the court or another location, information may end up being explained to the defendant by an unqualified but physically close person (Rowden, Wallace, and Goodman-Delahunty, 2010).
• Interviews with professionals involved in youth justice suggest that children appearing in court via video have less contact with their lawyer than children appearing in court in person and that holding discussions via video made it harder to build a rapport with children and identify deficits in understanding and participation (Standing Committee on Youth Justice, 2018).
• Work examining a web-based booking tool pilot suggests that defendants may communicate less with their advocates in video courts (Fielding, Braun, Heike, and Mainwaring, 2020).

Particular concerns have been raised about vulnerable defendants appearing in virtual courts.

Defendants with autism have been identified as one particularly vulnerable group in this regard. Research suggests video hearings can “atrophy” the ability of defendants with autism to participate in their trials and that defendants with autism may not associate the video link as being part of their case (Gibbs, 2017; Tidball, 2017).

Particular concerns have also been raised relating to child defendants. For example, the vulnerability and immaturity of children may not be seen as clearly when they appear remotely, and lawyers may have particular difficulties communicating remotely with child clients and assessing their understanding and participation (Standing Committee on Youth Justice, 2018).