Cross-examination and remote access technologies: a changing calculus?

Abstract

Ever since audio and audiovisual link (AVL) technologies were first introduced into Australian courtrooms in the 1990s, the courts have had broad discretionary powers regarding directions for taking evidence by AVL. In exercising such discretion, the courts have had to contend with balancing the efficiencies afforded by witnesses appearing remotely with other considerations such as fairness and the loss of traditional forensic benefits, which is said to accompany in- person cross-examination. These forensic benefits are often described in terms of a chemistry, solemnity, formality, or some other intangible atmospheric of the live, co-present courtroom environment. Of course, what has transpired since the beginning of the COVID-19 pandemic in 2020 has profoundly challenged these courtroom balancing acts.