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The Shift: Courts, Attorneys Wrestle With Continuing Remote Criminal Proceedings

Most judges and lawyers seem to agree that they expect courts to continue to leverage remote technology in some capacity after the pandemic subsides. When it comes to criminal proceedings, however, that consensus starts to shatter. 

The legal community raised concerns about infringing on defendants’ rights with remote technology throughout the pandemic. As emergency COVID-19 rules begin to lift, legal leaders are now deciding whether to continue the practice outside of a global health crisis. 

In choosing whether to move forward with remote tech in criminal cases, judicial officers, lawmakers and litigators are attempting to balance access to justice, Constitutional rights and even the sustainability of criminal defense practices.

The Conversation

California’s state courts have the authority to conduct remote proceedings in criminal cases until Jan. 1, 2024, as a result of language negotiated in the state’s spending plan. California’s Chief Justice Tani Cantil-Sakauye also created a working group that will recommend statewide guidelines for handling civil cases remotely. “Remote technology should not replace all in-person court hearings, but Californians should have the freedom of choice to conduct their business remotely whenever appropriate,” Cantil-Sakauye said.

Cantil-Sakauye has been an outspoken proponent of remote technology, saying in October that courts have found new equity and fairness in access to justice through remote proceedings, and “We’ll never give that up.” 

Judge Terrence Nealon of the Lackawanna County Court of Common Pleas chaired a task force that issued a report on best practices for the use of advanced communications technology in civil, criminal, family and juvenile court proceedings. “You kind of look back on it and say, ‘why were we doing those in person in the first place,’” he said of some of the in-person proceedings.

Despite the enthusiasm toward remote technology generally, some public defenders and advocates have been quick to point out the high stakes involved in criminal cases in particular. Sara Jacobson, executive director of training at the Public Defender Association of Pennsylvania, said “Criminal courts are different because people go to jail. People lose their liberty. … This isn’t just money we’re talking about, it’s someone’s freedom, and that needs to be treated differently,” she said.

The Significance

As states and courts determine how to proceed with the use of the technology, some jurisdictions are beginning to take the matter into their own hands. Several courts in Pennsylvania have continued to use remote technology without authorization from the state’s high court, according to Nyssa Taylor, criminal justice strategic litigation and policy counsel for the American Civil Liberties Union of Pennsylvania.

Even when remote technology restrictions are properly lifted, the practical limitations of remote proceedings can impede defendants’ abilities to convene with their attorney and fully take part in proceedings, Taylor said.

Still, some proponents of remote technology note the potential financial savings the technology could  provide. Jude Faccidomo, former chair of Dade County Bar Association’s Criminal Court Committee and co-chair of the Miami-Dade Jury Trial Task force, said before the pandemic, court appointed attorneys would bill the state while they were waiting in court for their case to be called, and now, they only bill for the time they are on the record. If courts used remote technology permanently, Florida would save hundreds of thousands of dollars in savings to the Judicial Administrative Commission.

Besides the financial savings, remote technology could also help bring more work-life balance to the criminal defense profession. “Obviously, all law practice is stressful, but criminal practitioners are dealing with a human being’s freedom, and sometimes even their life,” he said. “That is a weight that cannot be quantified and if the use of remote proceedings makes criminal practice more sustainable then it must be continued.”

The Information

Want to know more? Here's what we've discovered in the ALM Global Newsroom:

• Most of Pa.'s Rules Committees Are Proposing Expanded Use of Technology in Courts

• State Budget Deal Would Extend Video Proceedings in Criminal Cases

• 'All of My Cases Keep Me up at Night': The Heavy Toll of Criminal-Defense Lawyering

• Did Philadelphia's Continued Suspension of Court Rules Expose Rift on Pa. High Court?

• Courts 'Can't Continue' Without More Appellate Justices, California Chief Justice Says

• 'I Don't Know What Happened in the Third:' Chief Justice Launches Workgroup to Investigate Appellate Court Delays

• What’s Changed?: Checking In With Kent Raygor of Sheppard Mullin

• Judges Lisette Shirdan-Harris and Daniel Anders: Keeping Phila.'s Civil Division Moving

The Forecast

At the beginning of the pandemic, Zoom hearings in criminal cases in the U.S. District Court for the Northern District of California were constrained by the availability of space at the jailhouse for defendants to be able to participate in a video call and still socially distance themselves, noted then-U.S. Attorney David Anderson in a February 2021 interview.

Anderson, who is now a partner in Sidley Austin’s white collar, government litigation and investigations practice group, said this was one of the many practical problems that emerged as the federal court attempted to keep cases moving. The court, he said, “did an amazing job” solving the issues. “But they weren't, and couldn't possibly, be solved overnight,” he said.

As courts continue to deploy remote technology in criminal cases, serious and immediate problems will likely continue to surface. Reports of the failures of the technology might be enough to deter adoption of remote technology for criminal proceedings in most court systems across the country. Still, lawmakers and judges who value the possible benefits of the technology might take on the problems that will emerge, develop best practices and provide a roadmap for the rest of the nation.

Alaina Lancaster, based in San Francisco, is the bureau chief for The Recorder. Contact her at alancaster@alm.com. On Twitter: @a_lancaster3