Challenges to Online Criminal Litigation in the Context of Smart Justice and Responses
— Focusing on the Protection of the Right to Defense

ZHENG Weiwei & YAN Jiaqi

Abstract: Online criminal litigation transcends the constraints of physical time and space and changes the logic and path of trial hearings for some criminal cases with the help of technology. However, the leapfrog shift from the “physical field” to the “virtual field” has brought great challenges to the effective exercise of the defendant’s right to defense. Online criminal justice further highlights the imbalance in the relationship between prosecution and defense in the context of smart justice, and proposes a new topic for protecting the human rights of the prosecuted. The introduction of online criminal litigation in judicial practice is intended to achieve justice in a faster and more convenient way. However, the dissipation of the ritualized remote hearings tends to undermine the effectiveness of the defense and impair the defense’s ability to cross-examine evidence, while the technically advantageous public authorities can aggravate the barrier to the defense’s meeting and reading the case file. The root cause is that technological power instrumentalism overemphasizes pragmatism and the pursuit of truth under the position of authority, thus diluting humanistic care for the subject of litigation. In order to resolve the problem with the quality and effectiveness of the right to defense in remote hearings, it is necessary to transform online criminal litigation from a “practical technical tool” to a “convenient auxiliary method,” and appropriately weigh the limits of pursuing truth against human rights protection in special scenarios. Meanwhile, it is also feasible to provide technical care for the defense and strengthen its ability to cross-examine evidence. Moreover, a covert communication platform should be furnished for the defender’s online meeting to actively strengthen the protection of the defendant’s right to defense.

Keywords: online criminal litigation · smart justice · right to defense · remote hearings · human rights