Why The Risks Of 'YouTube Trials' May Outweigh The Benefits

By Andrew Strickler | September 20, 2020, 8:02 PM EDT

Photos of sexual assault victims on the stand, posted to Twitter in real time. More harassment of prosecutors and defense lawyers. Videos altered to show a witness "naming" the wrong perpetrator.

With court leaders trying to keep proceedings open amid COVID-19 shutdowns, these will likely be among the darker results of putting criminal trials and other proceedings "live" on YouTube on a wide scale, according to victim advocates and other critics of a recently announced policy in Philadelphia.

For now, the policy is in limbo. Opponents on Thursday won a court ruling placing it on hold, but the controversy could still serve as an opportunity for other jurisdictions to think hard about some of the unintended consequences of "televised" trials, particularly for crime victims and vulnerable witnesses. 

Since the pandemic hit in March, many judicial proceedings, including trials, have been shifted to video or audio streaming — from misdemeanor hearings in rural county courts to oral arguments before the U.S. Supreme Court — with varying degrees of success. In Philadelphia, the move online is getting particular scrutiny because of the city's experience with "no snitching" culture and many peoples' reluctance to cooperate with law enforcement.

In the rush to keep courts accessible, some believe the negative consequences of broad online access to trials will only be limited by the imagination of bad actors.

"My thinking goes to those 'deepfake' videos, where there is digital manipulation of audio or video, and the possibility of someone making it look like someone is giving testimony completely contrary to what they did," said Justice John Browning of Texas' Fifth Court of Appeals.

Justice Browning, who wrote extensively about social media use in the legal profession before joining the appellate bench in August, also predicted YouTube trials would lead to an uptick in threats to witnesses, as well as judges and lawyers. Some otherwise obscure trial participant may also find themselves going "viral" over a piece of out-of-context testimony. 

"While this policy does give judges discretion on a case-by-case basis, I think there is a legitimate concern that judges may not always have the time to consider everything ... and could simply default to making everything available on YouTube for all to see," he said.

With the backing of several local victim rights and anti-violence organizations, Philadelphia's district attorney last week took the unusual step of asking the state Supreme Court to use its "extraordinary" or "King's Bench" authority to intercede in the First Judicial District policy, which went into effect last week.

The Philadelphia County Court of Common Pleas began restarting criminal trial proceedings earlier this month, although city courts remain closed to the general public. 

In his brief, the district attorney argued that putting criminal trials online created an "obvious and unacceptably high risk" of witnesses being threatened or hurt by people unknown and unseen, located anywhere in the world. And even some nontestifying victims could be "retraumatized" by seeing trial footage captured off YouTube shared online, according to the petition.

The policy is also an overreach in terms of the constitutional protections for a public trial, said District Attorney Larry Krasner, while eschewing the basic protections afforded everyone involved in a trial held in a public courthouses with security personnel and the means to enforce court rules.

"Not only does broadcasting trials on YouTube potentially expose defendants, victims and witnesses to a massive audience, but any member of this audience may record or otherwise memorialize the proceedings for future nefarious use," Krasner said.

The DA also linked the risks of YouTube trials to the city's history, well-documented in the press and in local criminal cases, of witnesses being targeted for online exposure and violence, as well as the "prurient and bizarre nature" of internet culture itself.

In Philadelphia, Krasner said, "witness intimidation and retaliation persistently lurk in the background of nearly every prosecution."

In a joint statement opposing the "YouTube policy," 11 mostly local victim and anti-violence groups also called on the state high court to revise the policy to ensure that cameras and audio devices didn't capture a victim during any proceeding that would be broadcast.

The groups, which included the National Crime Victim Law Institute, also called for a hard limit on "public" participants for any broadcasted hearing so that it "does not exceed the physical capacity of the courtroom in which the hearing would have been conducted." 

Late Thursday, the Supreme Court ordered the portion of the policy related to YouTube channel stayed, and directed the administration to "coordinate" with the First Judicial District. 

With the fate of the policy now hazier than ever, victim advocates and other experts not involved in the opposition effort also voiced concerns about judges juggling social-distancing measures and other precautions "defaulting" to livestreaming trials in their totality if their courts allow for it.

University of Montana law professor Andrew King-Ries, who chairs an American Bar Association committee on domestic and sexual violence, said a physical courtroom does provide witnesses in danger of retaliation a level of protection and privacy, even if it doesn't extend beyond the courthouse itself.

But no such security is available in virtual proceedings, where they might be more susceptible to coercion, or if their names and faces are captured off YouTube, said King-Ries, who did not speak on behalf of the ABA. 

"Courts should be open, people should be able to go, of course, but if, for example, a defendant is having his friends come to court to intimidate a victim, it's obvious to those of us in court because it's right in front of us," he said. "We can ask, 'Who are you? Why are you here?' and raise any concerns to the judge.

"But when you just produce a video or something like it, you don't know who sees it, or where it might go, and things get a little scary."

Attorney Renee Williams, executive director of the National Center for Victims of Crime, said even the possibility that a crime victim's testimony or picture might go online could further deter some from coming forward or even calling the police.

A safer approach while the pandemic persists, Williams said, was for courts to "invite" participants and any interested parties to Zoom conferences. That method has worked in Virginia family court cases where she acts as a court-appointed advocate, she said, and would provide "open" courts some level of oversight over streamed proceedings.

"We're seven months into COVID and a lot of courts are still looking for answers and looking to see how other courts are dealing with this," she said.

If the Philadelphia program continues without obvious problems, "I would have serious concerns about it being picked up in other jurisdictions before we really know what's happening," she said. "I'd fear the ramifications we'd face six months or even five years down the line."

A spokesperson for the Philadelphia district attorney declined to comment. Messages left for the defense attorney in the criminal case in which the DA first raised the policy objections did not respond to messages Thursday.

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Additional reporting by Matt Fair. Editing by Katherine Rautenberg.

Hello! I'm Law360's automated support bot.

How can I help you today?

For example, you can type:
  • I forgot my password
  • I took a free trial but didn't get a verification email
  • How do I sign up for a newsletter?
Beta
Ask a question!