The beginning of this second decade of the 2st century will be a very difficult period to forget. The number of deaths caused by the SARS-CoV-XNUMX virus, the extensive quarantines and other restriction measures that the government authorities have had to decree, to the detriment of the enjoyment of our rights, will be part of the bitter taste of this 2020-2021 biennium (and we hope we will not continue counting years).
To avoid a full closure of our daily activities, in the midst of these forced isolations, videoconferencing applications took center stage, which became valuable and indispensable alternatives to give continuity to tasks such as teaching and education, work meetings, social gatherings. ; and - in what is of interest here - in the field of legal practice, they mediated in a key way for the holding of judicial hearings and trials.
Everything happened in such a dizzying way that it is hard to think that this option had previously been considered as a plan B. Far from this, the choice of these videoconferencing platforms was due to decisions that had to be made on the spot and with undoubted haste.
In Chile, a first step was taken by the Legislative Power, which, through the enactment of Law 21.226 , regulated a regime to suspend non-urgent hearings and procedural deadlines. Said law that entered into force on April 2, 2020, although it remedied the question about the what (subjects and type of hearing that should be held and which could be postponed) did not provide a further response about the how. And it was then, in the face of said uncovered space, that the courts with criminal jurisdiction and the country's Courts had to regulate the way in which these urgent hearings should be verified, respecting the rules of isolation and social distancing. Promptly, the Judicial Power made known to the citizenship, by means of auto agreed, minutes and agreements , the form of telematic holding of said hearings, mediating the use of the various videoconferencing applications available .
As expected, a change of this kind resulted, from a critical perspective, in a call to analyze how these new technologies for holding hearings would coexist with the guarantees required by due process in criminal matters. In particular, in the face of the greatest challenge, of conducting oral trials, doubts and objections arose from various specialists regarding the holding of oral trials through videoconferencing platforms.
The concern has been linked to the compatibility of remote trials with guarantees of the criminal process such as: contradiction principle, given that the lack of personal and direct contact, connection difficulties and eventual intermittencies in the signal, could lead to a restricted or limited use of these essential powers so that the defenses can confront witnesses and prosecution experts .
Along with the above, it has also been pointed out that trials by videoconference could imply an impact on the principle of immediacy, by not appreciating, the judges, the proof directly.
Another point that is reported as problematic is the control of the evidence and the evidence given in court; in particular the limitations that remote media imply so that the judges who direct the hearings can control that witnesses and experts present orally without such deponents supporting their statements in written documents  and that, between the witnesses and experts who expose, there is an effective separation or isolation , so that they cannot share with each other what they have declared or will declare .
Another possibly conflictive point is related to the risk that the communication of the accused and his defense lawyer is hampered and not fluid in these videoconference trial systems. . Finally, we can mention the initial fear that the trials by videoconference will end up weakening the public character of the hearings. .
In this context of previous doubts, our superior courts, in particular the Supreme Court, hearing about annulment appeals filed for defenses in criminal cases, have had the opportunity to rule on some of these issues.
In the bulk of its pronouncements, the Second Chamber of the Supreme Court has tended to reject general allegations referring to breaches of guarantees associated with due process, being normally invoked by the recurring affectations to the principles of immediacy, contradictoriness and reliability of the evidence.
This has happened, for example, in Roles 82.077-2020, 92.059-2020, 92.094-2020 and 104.468-2020. In all of them, by majority agreement , annulment appeals are dismissed by the defenses, after the conviction of their clients, in oral trials held through the Zoom platform.
In all these judgments, the argument given by the Court is common in the sense that the allegations of the defenses of breaches of guarantees have been generic, without specifying how in particular the holding of trials remotely violated specific rights. Although the analysis about the general compatibility of trials held in remote conditions with the aforementioned guarantees of due process is generally avoided, at least a certain relevant conclusion can be drawn from the majority vote expressed in Case No. 92.059-2020, which in its sixth recital rejects the defense's allegation referring to the impossibility that the witnesses and the judges could directly appreciate part of the material evidence (in this case, a bucket in which the drug was transferred). In what matters here, the Supreme Court pointed out:
“That, in any case, it follows from the circumstances set forth, that despite the impossibility of materially exhibiting the bucket, said evidence was scrutinized by the defense, as well as by the court, respecting the principles of bilaterality of the hearing, orality, publicity and immediacy, from which the duality of positions, the contradiction and the equality of the parties are inferred, since there is a bidirectional and simultaneous communication of the image and sound, as well as the visual, auditory and verbal interaction, safeguards taken into consideration to protect the constitutional guarantee of due process, especially with regard to the right of defense, in its dimension of controlling the evidence of the charge. "
To support its reasoning, the Court cites a ruling of the Spanish Supreme Court that, in its interest, it is convenient to transcribe:
"[...] who stated that" the use of videoconferencing allows total connection at the points of origin and destination as if they were present in the same place, thereby complying with the premise that judicial proceedings be held in unity of act. No procedural principle is violated by being able to direct the parties to the witnesses the questions that are declared pertinent with contradiction and without there being defenselessness or violation of effective judicial protection "(STS 2163/2019, Criminal Chamber, Section 1, of July 27, 2019, appeal 1376/2018) ”. 
Although the Second Chamber of the Court avoids, in the aforementioned admissions (roles: 82.077-2020, 92.059-2020, 92.094-2020 and 104.468-2020), making a general statement about the use of these technological means to carry out trials oral statements and their compatibility with the requirements imposed by due process, the truth is that at the same time it also rejects an opposite pronouncement. That is to say, it does not indicate that this form of telematic realization of judgments supposes, in any event and under any circumstance, an infringement of the aforementioned guarantees, the question then depending on the affectation of rights, on the form and the precautions that have been adopted, to prevent such violations from occurring.
Approaching the exposed reasoning, it seems therefore that it is not appropriate to assume, in a categorical way, that the use of videoconferencing applications for the realization of judgments, derives an absolute relation, of compatibility / incompatibility with the norms of due process; Rather, this is a situation that must be verified on a case-by-case basis, taking into account the way in which these technologies have been used and identifying whether they have affected any scope of action guaranteed to the defense.
For the protection of such rights, some tools that several of these applications have are recommended, which allow, for example, that two or more interlocutors can momentarily leave the main session in order to connect to a private session, which is essential for defense, can interview and advise, privately and without interference, the accused. Likewise, for the identification of experts and witnesses in the process, biometric security mechanisms that currently have computers, tablets and cell phones could be used, which are a means of identity verification, even more reliable than the usual ones, that is, the face-to-face comparison made by a minister of faith of the photograph of an identity document. This coupled with the use of an electronic signature system or unique access code that could be used by the person who identifies himself.
Regarding the reliability of the statements of witnesses and experts, the statements of these should be admitted through some mechanism that ensures the use of a rear webcam connected simultaneously to the front camera, or through the use of a mirror, which ensure that the deponent is not reading a document while giving a statement in court.
It is true that we must not forget that the practice of oral trials under certain conditions may imply the restriction of rights, but far from abandoning these technological alternatives, what is relevant is to think about how these problems can be remedied and how these practices can contribute to an improvement to the practice of trials in post-pandemic conditions.
Video conferencing lawsuits not only raise challenges but also opportunities for improvement. Think, for example, of the possibility of resorting to world specialists, leaders in their area, as experts, in charge or discharge, reducing by means of their remote declaration the costs of travel and lodging: does this not imply a epistemological opportunity to better meet the truth in the process?
Similarly, the use of these technologies could facilitate the participation of victims and witnesses in vulnerable situations, allowing their statement to take place in more controlled and reliable environments than a courtroom, in the presence of the accused. These platforms could also facilitate the intervention of witnesses or victims who reside in remote areas, far from the normally central and urban places where our courts operate.
Finally, regarding the publicity of the trial. Although the trials, during the pandemic, are being carried out remotely, this has not implied that several hearings of public connotation have been publicly exhibited simultaneously with their conduct. , or that some courts make known the links to access the videoconference sessions, in which the hearings take place, to the general public . The potential for these hearings, by broadcast, to be public, seems to be even greater than those that can be imagined by allowing the public to access the respective courtrooms, which have a fairly limited capacity.
*The opinions expressed in this article are those of the author and do not necessarily reflect the views of the administrators of The Crypto Legal blog or the Lawgic Tec association.
- As of the date this column was written, during April 2021, the global number of deaths from COVID-19 exceeded 2.930.000 people: Global Map, John Hopkins University: https://coronavirus.jhu.edu/map.html
- To access the official text of said law: https://www.bcn.cl/leychile/navegar?idNorma=1144003
- After the entry into force of Law 21.226, the Supreme Court of Chile, on April 8, 2020, issued the agreed order 53-2020, which has been the main document by virtue of which the Judicial Power has been regulating the conditions of telecommuting under emergency conditions. Its text can be consulted at: https://bit.ly/3wOVCsk
- The agreed order 53-2020 only makes generic mention in its article 6 to the "technological means" to which the courts may resort to give continuity to their work, without opting for any software in particular. Although the most widely used videoconferencing platform has been ZOOM Meetings, It has not been the only one to which it has been resorted, being also used by the Court of Appeals of Santiago, for example, the application Webex from Cisco.
- They point to the above: VERA VEGA, Jaime (2020) “The Juizooms: the holding of the oral trial hearing through videoconferencing platforms in times of COVID-19. The other problems (part 2) ”. On: Criminal Justice Network: https://bit.ly/32llApv . RIEGO RAMIREZ, Cristian (2020) “Oral hearings during the pandemic in Chile. And the due process? On: Criminal Justice Network: https://bit.ly/3a4W1NH
- Regarding this situation, it is necessary to bear in mind what is established in article 329, paragraph 1 of the Criminal Procedure Code: “Experts and witnesses at the oral trial hearing. During the hearing, the experts and witnesses must be questioned personally. Your personal statement may not be replaced by reading the records containing previous statements or other documents that contain them, without prejudice to the provisions of Articles 331 and 332 ".
- In this regard, article 329 paragraph 6 of the Criminal Procedure Code provides: "Before testifying, the experts and witnesses may not communicate with each other, or see, hear or be informed of what happens at the hearing."
- These apprehensions manifest: VERA VEGA, Jaime, ob.cit .; and RIEGO RAMIREZ, Cristian, ob.cit.
- In that sense: VERA VEGA, Jaime, ob.cit.
- On this point, it should be borne in mind that article 289 of the Code of Criminal Procedure prescribes that the hearings of the oral trials will be public.
- In each of these pronouncements, the dissenting vote of the Minister Mr. Leopoldo Llanos Sagristá has been recorded, who has been of the opinion of accepting the resources of the defenses for various considerations related to the affectation of fundamental guarantees that are right with the right to defense effective and due process.
- Supreme Court Judgment, Rol 92.059-2020, dated September 08, 2020, Considered Sixth.
- In this work, the web channel of the judiciary has played a prominent role in disseminating, for quite some time: https://www.poderjudicialtv.cl/
- Several Courts of Appeals in the country release the links for connection to the respective hearings, which are communicated daily and which are freely accessible, not only by trial lawyers, but also by the interested public: https://www.pjud.cl/tribunales/corte-de-apelaciones