Eugenio Mollo, Jr., J.D. candidate, The University of Iowa College of Law, May 2006. The author would like to thank his parents, Maria and Eugenio, as well as his siblings, Mario, Angelo, Francina, and Rosario for their support and encouragement. The author also thanks the members of the Journal for their efforts in editing this Note.
Concern in the 1980s regarding technology and courtrooms focused on the use of videotaping trials. Back then, most lawmakers believed that technology should be subordinate to the rights of an individual to receive a fair trial.1 They emphasized that cameras in the courtroom present "particular hazards" that are inconsistent with our rule of law.2 In recent years, however, the video camera has taken a new form that has eliminated direct face-to-face contact between the party and the judge. In our legal system today, the video camera is now the stage for a trial that will determine the fate of many immigrants.
Our society is obsessed with television. As a mass, we are constantly entertained and educated through our television sets. It is the mainstream of our culture.3 Scholars have argued for decades that the television medium "has a pervasive influence on the way persons process information and the perceptions they develop of the external world."4 When we convert the word "television" into "video conference," these societal perceptions-and Page 690 misperceptions-do not magically dissipate. Therefore, the arena that the video camera provides cannot be an equal substitute for a courtroom.
We, as a society, are accustomed to looking at screens everywhere-"in our bedrooms and living rooms, our offices, the train station, [and] in restaurants."5 In a courtroom, the judge has the opportunity to see the immigrant face to face. On the television screen, however, the judge sees a "person on a small, jumpy, screen . . . wearing an orange jump suit, handcuffed and shackled, with dogs occasionally barking in the background."6 The image can be tinkered and distorted-by lighting, the size of the image, and the camera perspective.7 The impersonal, cold, unfriendly, and remote nature of a camera simply cannot be compared to personal face-to-face interaction.
"Video Conferencing (VC) is an electronic form of communication that permits two or more people in different locations to engage in audio and visual exchanges."8 According to the Executive Office for Immigration Review (EOIR), the administrative body of federal immigration laws,9 use of "VC technology allows court proceedings . . . to be conducted efficiently and effectively[,]" despite the fact the participants are not together in one room.10 The earlier applications of video use in the courtroom were applied more extensively to civil-not criminal-matters.11 Still, videoconferencing technology has found its way into immigrant hearings.
Two sources, one legislative and one regulatory, authorize an immigration judge to conduct hearings through VC.12 The first is the Immigration and Nationality Act,13 which states that an immigration proceeding may take place in any of these four forms: (1) in person; (2) where agreed to by the parties, in the absence of the alien;14 (3) through Page 691 video conference; or (4) through telephone conference, but only with the "consent of the alien after the alien has been advised of the right to proceed in person or through video conference."15 The second source is the Code of Federal Regulations, which states that "[a]n Immigration Judge may conduct hearings through video conference to the same extent as he or she may conduct hearings in person."16
The use of VC in immigration proceedings is becoming increasingly popular to keep up with the influx of immigration hearings.17 The EOIR is calling for the expanded use of video and telephonic hearings to increase the accessibility of the courtroom.18 As of September 21, 2004, VC units have been installed at the EOIR Headquarters in Falls Church, Virginia, and at forty (of fifty-three) Immigration Courts, as well as at seventy-seven other sites such as detention centers and correctional facilities where immigration hearings are conducted throughout the country.19
Some individuals believe that the expanded use of VC creates benefits to the courts and the respondent. For the Immigration Courts, VC saves travel for the immigration judges, which allows them extra time to hear more cases.20 VC also effectively manages cases "by allowing immigration judges to conduct hearings for fellow immigration judges in other Immigration Courts, thereby assisting with unusually heavy caseloads."21 The use of VC also better distributes caseloads when dealing with judge vacancies.22 It should be noted that many of these advantages serve strictly internal administrative convenience. VC also saves travel costs and improves safety and security. Thus, prisoners need not be transported, which minimizes attendant costs and escape risks.23 While immigration enforcement officers do an outstanding job in providing appropriate security for detained and Page 692 imprisoned case hearings, some believe that there are still areas where problems can occur.24
The reduction of health concerns is another benefit of VC for the courts.25 Health concerns among alien detainees continue to be an important issue, particularly with respect to Tuberculosis and Hepatitis B.26 Judges, interpreters, and reporters face additional health-hazard concerns because of their close proximity to detainees in the hearing process.27 As a result, some court policies request the alien to wear a breath mask, and if the alien refuses, then the court has the right to instruct the alien that the case will not be heard until the alien puts on the mask or is no longer infectious.28 Even with this breath mask, however, court personnel still do not feel completely safe, and they are calling for the expanded use of VC to "totally eliminate" particular health risks factors for court personnel.29
This argument about health concerns is misdirected. While Tuberculosis can be transmitted through respiratory coughing and sneezing,30 Hepatitis B is a virus only transmitted through blood and infected bodily fluids.31 Thus, the breath mask is a pointless protection against something that cannot be transmitted through the respiratory system. This fear of immigrants, what some academics call "immigrant phobia,"32 has helped VC expand in the courts. Equating all immigrants to the violent and dangerous, the Fourth Circuit has stated that it is dangerous to transport "potentially mentally unstable persons" to a courthouse because many require medication and supervision.33 Remote arraignments were first used in 1982 when Dade County, Florida initiated two-way television cases in misdemeanor cases.34 From petty misdemeanor cases in one Florida Page 693 county to life-altering removal hearings throughout the country, VC has allowed our society to distance itself from the personal nature of immigration law and removal proceedings.
VC, without a doubt, has helped maintain the low costs of Immigration Court.35 However, gathering data in regards to fiscal costs is inherently easier than determining the human consequences of VC.36 We simply do not know the real human consequences of VC. Still, further increased use of technology to the courts is inevitable.37 Before moving any further, many scholars are calling for a development of understanding between "judges, attorneys, social science researchers, technology developers, legal scholars, and others who understand the functioning and organization of the courts."38
These stated benefits of VC, especially those concerning safety and health, are arguments made to the extreme. Court personnel want to be in an "absolute[ly] . . . risk-free" environment as far as health safety is concerned, and security personnel want a "100% guarantee" that problems will not occur.39 For the respondent, the benefit declared by the courts is that VC can provide for a more expedient hearing.40 At this stage in our technological advancement, society must evaluate the use of this expansion. In striving to achieve perfection and with courts having the assistance of technological expansion, our basic legal interests and rights are deteriorating. The EOIR recognizes that technology is evolving more quickly than ever before.41 The Government Paperwork Elimination Act (GPEA) of 1998 and the e- Government Act of 2002 "require agencies to provide electronic alternatives where practicable and to promote the use of innovative technologies."42 Our nation is constantly using technological advances to become more efficient, but we are moving so fast that our legal regulations are lagging behind. Immigrants are facing this technological dilemma on the forefront. Internationally, the United States is leading the world in absorbing technological use in the courtroom.43 In the United Kingdom, for example, child and foreign witnesses in fraud cases are the only ones who are allowed Page 694 to use VC.44 Many in the United Kingdom believe that their legal organizational structures are not fit for the electronic age.45 Some opinions state that virtual reality cannot be a substitute for actual presence. Even in an age of advancing technology, watching an event on the screen simply is not the same as attending it in person.46 Despite these concerns, VC...