Rethinking the orality/confrontation paradigm in a world of remote evidence

This article reviews the various legislative and court initiatives which have made incursions into the orality/confrontation paradigm in recent years and in particular the recent statutory provision which was given impetus by the COVID-19 pandemic enabling all witnesses including defendants to give their evidence remotely outside the courtroom. It is argued that these incursions undermine the accused’s participatory rights to cross-examine important witnesses against them and to give evidence in person at their trial that underpin the orality/confrontation paradigm. This does not mean that remote technology could not be used more optimally to enhance effective fact-finding and improve efficiency without limiting defence participation rights. In particular, it is argued that it could be harnessed to frontload the taking of greater oral testimony before trial, including the greater use of pre-recorded cross-examination, provided the defendant retains a right to testify before the tribunal of fact. But if the full potential of remote technology is to be realised, the long cultural attachment that there has been to the traditional orality/confrontation paradigm needs to be re-assessed to appraise the benefits that accrue from shifting the taking of oral testimony from the trial to the pre-trial phase