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Mike Tobin guest posts: Video and telephone hearings during the health crisis

Many thanks to Mike Tobin, retired Deputy State Public Defender and co-author of Wisconsin Criminal Practice and Procedure for today’s thoughtful and timely guest post:

Two main resources are available to assist attorneys in preparing for hearings conducted by video or telephone:

The original interest in video hearings was motivated mainly by economic considerations, such as the time and expenses of transporting in-custody clients. Even among advocates of broadly using video technology, the main interest was in using video for initial appearances and for other non-evidentiary hearings.

The present circumstances with coronavirus, however, temporarily put defense attorneys and clients in an unprecedented situation by removing the option of a traditional courtroom trial with all parties present.

Nonetheless, many of the same considerations reflected in statute and in the SPD publication are relevant to video court in this crisis situation. The main difference is that a successful objection to video court can secure an adjournment of proceedings, but not a prompt in-person hearing.

Most important statute on video court: “If an objection is made by the defendant or respondent in a matter listed in sub. (1) [criminal cases and cases under chapters 48, 51, 55, 938, and 980], regarding any proceeding where he or she is entitled to be physically present in the courtroom, the court shall sustain the objection.Sec. 885.60(2)(d) (emphasis added).

Communicate with your client about the potential ways to proceed. Despite the practical difficulties and uncertainty of when client might have an in-person trial, communication about possible outcomes and timelines is critical. How does your client feel about adjournment, as opposed to video trial?

Learn about the video or telephone equipment that the court will use. Does it comply with technical and operational standards of §885.54? Be prepared to make a record regarding any deficiencies.

  • Learn what you can about the presiding judge’s thoughts about the present situation.
  • How has the judge conducted other hearings?
  • Is the judge encouraging negotiations?
  • Is the judge inclined to find good cause to reschedule?
  • Or is the judge more apt to conduct a video or telephonic trial?

Look for creative negotiation opportunities: during this crisis, staff of jails and hospitals are probably looking to release persons when possible. Prosecutors and judges are likely not eager to confront the logistical obstacles to conducting a video or telephonic trial, even if they are confident of its legality. Release on bail or outpatient treatment may be options in criminal and mental health cases respectively.

Remember that the health crisis does not override constitutional or statutory requirements (although appellate courts are undoubtedly likely to sympathize with decisions made by circuit judges under these conditions).

  • Defense attorneys do not have to be the ones choosing between video and delay.
  • You can make a record of objections to a video trial without agreeing to waive time limits.
  • Section 885.60 provides authority for objection to video (and, by extension, telephonic) trial in criminal trials and trials/fact-finding hearings under chapters 48, 51, 55, 938, and 980.
  • Section 885.60(2)(a) provides the right to be physically present for trial/fact-finding in these proceedings. This right also applies to sentencing and dispositional hearings.

Considerations if you are conducting a video or telephonic trial:

  • Where are the participants? In court? Jail? Hospital? Home? Office? Other?
  • If a jury is empaneled, where is it located and how is it supervised?
  • Voir dire of jurors should include their concerns about virus as possibly interfering with ability to concentrate on the court case.
  • Can all participants see and hear each other? See §885.54(1)(a).
  • Can all participants see, hear, and understand all evidence, including physical evidence and exhibits? See §885.54(1)(b).
  • Can all participants observe demeanor of witnesses as they could in a courtroom? See §885.54(1)(c). Note that this provision cannot be met in a telephonic hearing not accompanied by a video feed.
  • Can cameras scan the courtroom to show other persons and activities? See §885.54(1)(d) (also not possible for telephone-only hearing).
  • Does defense attorney have the option to be present with client if client is not in court? If yes, can the lawyer mute the sound system to permit confidential communication? See §885.54(1)(e).
  • If defense attorney and client are in different locations, is there is means of confidential communication during the hearing? See §885.54(1)(g). Note that if, for example, attorney is in the court and client in jail, best practice is for another member of defense team to be with client to facilitate effective communication.
  • Can documents be transmitted between courtroom and all applicable remote locations? See §885.54(1)(f).
  • Is the judge’s location visible to the public, crime victims, and the jury “to the same extent as the proceeding would be if not conducted by videoconferencing”? See §885.54(1)(h) (also not possible for telephone-only hearing).

In addition to raising these individual statutory requirements, the defense attorney can request that the moving party (which may be the court) certify that the video operations meet these standards. See §885.54(2). The attorney should be prepared to make a record if there is a factual dispute about this certification.

One risk of raising all potential objections to a video proceeding is that the court may agree and instead find good cause to adjourn the proceeding (and the adjournment may be lengthy). For many clients out of custody, this outcome may well be preferable to a video trial. However, for clients who are confined, an imperfect video trial may be preferable to an indefinite delay. You might like to have both a trial and a record for appeal, but which is your client’s priority?

One suggestion to navigate this risk: make a strong assertion of speedy-trial and similar time-driven rights, while also objecting to (and making a record of) any statutory shortcomings as the trial/fact-finding proceeds. And as noted above, know your judge: if the judge is likely to declare mistrial or adjourn in the middle of the hearing, attorney and client also need to consider that possibility.

Kudos to all defense attorneys during this incredibly difficult time. You are essential personnel: you are essential to assert and protect the rights of clients in need.

Do you have suggestions regarding video and telephone hearings? Please share them in the comment section below.

{ 1 comment… add one }
  • Tom Aquino March 26, 2020, 1:53 pm

    A couple points of clarification.

    (1) The SPD publication linked above is from 2010. In 2011, 885.60(2)(a) was modified to remove the right to be physically present during a “critical stage of the proceeding” language discussed in the publication, and replaced it with a right to be physically present just at trials and at sentencing.

    (2) However, in 2012, the Wisconsin Supreme Court observed that because sections 885.55-64 were created by court rule, they cannot “enlarge or diminish a defendant’s statutory right” to be present under section 971.04. State v. Soto, 2012 WI 93, ¶ 32, 343 Wis. 2d 43, 61, 817 N.W.2d 848, 857.

    The upshot is that while Ch. 885 includes many important considerations for the court when deciding whether to hold a particular proceeding by videoconference, the defendant’s statutory right to be physically present at various hearings is found in 971.04, and the court’s statutory authority to hold proceedings by telephone and videoconference is in 967.08.

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