In the 2019 series of student blog posts for Legal Problem Solving, students are digging into the American Bar Association's 2016 Report on the Future of Legal Services to explore how far we've come in 2019 and what remains to do in the innovation of legal services delivery.
One idea that came up repeatedly in the ABA 2016 Report on the Future of Legal Services was that courts and the members of the legal profession need to be receptive to new technologies and innovation that ensure access to the courts. One particular area that the report addressed was the possibility of expanding virtual access to courts and remote access technologies.
Some courtrooms have introduced remote access technology by using video conferences during criminal court proceedings. ‘Video court’ is used most frequently in arraignments and bond hearings. In terms of innovation, this potentially seems like a good use of technology in the slow to change courtroom, however, it raises the question of who actually benefits from video court?
In a traditional courtroom, criminal defendants who are in custody and have a court date are transported to the courthouse and held within the building until it is their turn to be heard. While in holding at the courthouse, the defendant’s attorney can come in to talk to them about their case. In a jurisdiction that utilizes a video courtroom, a defendant in the same position is not transported from the jail, but rather goes into a room set aside at the jail for video conferencing. Many times a corrections officer is in the room, or stands at the doorway.
At the courthouse, a large monitor comes to life and the defendant’s face is projected to everyone in the room. The judge, prosecutor, and defense attorney all remain in the courtroom, while the defendant overlooks the scene from a room in county jail. Anything that the defendant says is projected over speakers to the entire room, and there is no way for the defense attorney to communicate privately with the defendant. The judge has the ability to mute the defendant’s lines of communication and close down the monitor during gaps between proceedings.
A 2015 research paper, funded by the Department of Justice, outlined in a 44-page report the potential pros and cons of this system. To summarize the report’s findings: the potential pros of video court include lower transportation costs because inmates do not have to be transferred from jails to courthouses, less staff time involved in those transfers, more security and safety for both the incarcerated and the public, and quicker court proceedings. The potential cons of the practice have more to do with the rights of the incarcerated, including assertions that video court may violate constitutional rights, due process and, in general, dehumanize the accused.
The biggest pro of video court seems to be the cost-saving measures that result from a reduced number of individuals having to be transported from county facilities to the courthouse each day. This covers transportation costs and the costs of security required when transporting criminal defendants that are incarcerated. An elected official in Massachusetts even promised during her campaign to get video systems in the courtroom, not only for its alleged safety benefits but also to save the taxpayers money.
However, the cons of video systems in criminal proceedings are substantial, and pose serious questions about a defendant’s constitutional rights both under the 6th amendment and the due process clause. The video systems described above impose serious burdens on the level of communication that a defendant is able to have with his or her attorney. There is no way to communicate confidentially during these video proceedings. Anything the defendant says is broadcasted to the entire courtroom. In many instances the judge will have to warn a defendant to stop speaking because of this. This eliminates any opportunity for the defense attorney to consult with his client, which should be guaranteed even during brief proceedings.
While some proceedings, such as arraignments are very brief, this becomes more problematic as these conferences become used for other stages of the criminal process. Right now, they are often used at bond hearings, which can have an incredible impact on the defendant and his future case. Additionally, using video conferences at more advanced stages in the criminal process, may raise questions about a defendant’s right to be present and his right to participate in his defense under the 6th amendment.
There are also additional concerns about the dehumanizing effects of these video proceedings. An arraignment is often the first time that a defendant is informed of the formal charges against him. It is natural that he or she would have questions about those charges and want to be able to talk to someone about them. Without being at the courthouse in person, that opportunity to talk with their attorney is lost. This often results in the defendant saying something in open court over the video conference, that really should have only been said to an attorney. It also deprives the defense attorneys from beginning to form a positive relationship with their clients at their first meetings, and deprives them of the added benefit of being able to observe their clients' demeanor in person, which could be essential to raising claims about their mental or physical health. It also deprives the defendants of the opportunity to feel as if they are being listened to by the court and the attorneys in any meaningful way. And in the case of a bond hearing or more advanced criminal proceedings, appearing in court could be a way to see and receive the support of family members, that does not come through in a video proceeding.
At least one jurisdiction has potentially struck the right balance between the competing interests described above. In the Kern County Superior Court (California) the video court program is only available for prisoners who represent a serious risk to the community. It is specifically made available for inmates who committed a crime while already institutionalized in Kern County, and it is only used during arraignments on that new charge. These types of restrictions represent the correct balance of saving costs and having enhanced safety precautions, and the rights of the defendant. It is not being used for everyone, but only on defendants that have a known record of aggression while in custody. Additionally, it is only being used at arraignment, where the interactions between the defendant and his or her attorney are routinely very brief.
With the concerns stated above, courts should be careful and critical in implementing the use of video conferencing for criminal proceedings. At best this could be a cost saving measure that is easier on the state, however at worst this runs the risk of depriving individuals of their constitutional rights, and further dehumanizes individuals who are in custody.