Ordinarily, a person charged with a federal crime is quickly brought before a U.S. magistrate judge, who at the initial appearance advises of the charge, range of punishment, and defendant’s constitutional rights. The court appoints a lawyer if the defendant cannot afford one and determines at the detention hearing whether to release the defendant on bond or detain pending trial. After a plea of “not guilty” at the arraignment, a trial date is set and the court enters its standard scheduling and trial order. Once the defendant has reviewed discovery with counsel, a decision must be made about how best to resolve the case. If the defendant requests a change of plea hearing, the parties typically appear in open court for the plea colloquy. If not, an inperson jury or bench trial occurs with a U.S. District Judge presiding. Indeed, the touchstone of the Sixth Amendment of the U.S. Constitution is the right to a public trial, including all pretrial criminal proceedings.1
But when the coronavirus (COVID-19) outbreak surged in the United States in March 2020 and required courthouses across the country to close their doors, federal and state court practices changed almost overnight. Rather than allow the criminal justice system to screech to a halt, courts embraced—and sometimes mandated—the use of video or telephone conferencing technologies to keep cases moving forward. Defendants and counsel, too, have welcomed the use of video teleconferencing technologies to ensure cases are expeditiously heard.
While video and telephone conferencing in the midst of a pandemic offer a means of resolving matters that may otherwise be indefinitely delayed, this technology carries potential disadvantages when judges are not informed of its limitations. It is important, therefore, to understand the key role video teleconferencing plays in our justice system amid a pandemic, while staying attuned to the pitfalls it could create.
The CARES Act and Use of Video Teleconferencing
On March 27, 2020, in response to the COVID-19 pandemic, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) was signed into law.2 While the CARES Act may be most commonly known for providing over $2 trillion of economic relief to the American people and business entities, it also allocated approximately $7.5 million to the federal judiciary to support continuing federal court operations during the pandemic and to help expand remote work capabilities. Without question, though, the most vital provision of the CARES Act for our federal judiciary is the clause allowing certain federal criminal (and civil) proceedings to be held via video or telephone conferencing.
Specifically, the CARES Act provides that if the Judicial Conference—the national policymaking body for the federal courts—finds that emergency conditions due to the COVID-19 national emergency “will materially affect the functioning of either the Federal courts generally or a particular district court of the United States, the chief judge of a district court covered by the finding . . . may authorize the use of video teleconferencing, or telephone conferencing if video teleconferencing is not reasonably available,” for certain criminal proceedings.3 These proceedings include initial appearance, preliminary hearing, waiver of indictment, arraignment, detention hearing, probation and supervised release revocation, pretrial release revocation, appearance under Rule 40 of the Federal Rules of Criminal Procedure, misdemeanor plea and sentencing, and certain proceedings under the Federal Juvenile Delinquency Act. A felony plea under Rule 11 and felony sentencing under Rule 32 may also be conducted via video teleconferencing if a federal court finds that such proceeding “cannot be conducted in person without seriously jeopardizing public health and safety” and that any further delay “would seriously harm the interests of justice.”4 Importantly, the requirement that a defendant consent to any sort of remote proceeding has remained intact.5
Two days after the passing of the CARES Act—on March 29, 2020—the Judicial Conference found that “emergency conditions due to the national emergency declared by the President with respect to COVID-19 will materially affect the functioning of the courts generally. . . .”6 In light of these findings by the president and Judicial Conference, chief judges across the nation implemented general orders authorizing the use of video and telephone conferencing to conduct federal criminal hearings. For example, here in the U.S. District Court for the Western District of Missouri, Chief Judge Beth Phillips first exercised her authority on March 30, 2020, to authorize the use of video and telephone conferencing for all proceedings outlined by the CARES Act.7
Use of Video and Telephone Conferencing Today
Following the implementation of these orders, federal trial courts almost immediately began using video teleconferencing systems to conduct court hearings virtually. All 13 federal courts of appeals also implemented live streaming of their oral arguments. And even the Supreme Court of the United States broke from its traditional practice and allowed audio broadcast of its May 2020 oral arguments, which were conducted over the phone.8
One issue that arose rather quickly, however, was ensuring that the platforms utilized for video teleconferencing were secure. Reports of “videobombing”—a term coined for a situation in which an unwanted person or persons gain access to the virtual court proceeding and cause disruptions—required video teleconferencing platforms to rethink their security systems.9 Zoom Video Communications began offering a government-oriented version of its services, Zoom for Government at zoomgov.com, with servers located on U.S. soil. Zoom for Government provides “secure video communications” and “allows a greater range of features and control—thus offering potentially better security through advanced settings.”10 Because of its security and control features, and its separate software development life cycle that is implemented and controlled by U.S. persons only, Zoom for Government has become the preeminent platform for federal courts during the pandemic. Cisco WebEx—a court videoconference software connecting individuals to the courtroom using computer video and phone audio—has also been utilized by several federal courts to conduct virtual hearings.11
Employing these platforms, courts have been able to successfully conduct pretrial proceedings without ever stepping into a courtroom. For example, judges in the Western District of Missouri have held arraignments, initial appearances, preliminary hearings, detention hearings, revocation hearings, suppression hearings, and even plea hearings via video teleconferencing.12
Before these criminal hearings, the parties are sent the Zoomgov.com meeting ID and password. Once the parties have logged in for the hearing, they enter a waiting room. The courtroom deputy admits the participants into the main hearing room and ensures that all participants’ audio and video are properly functioning and that their names are correctly displayed on the screen. The courtroom deputy offers the criminal defendant and his counsel the ability to enter a breakout room to speak privately. Once defense counsel and the defendant reenter the main hearing room and are ready to proceed, the courtroom deputy alerts the judge, who may begin the hearing.
Admittedly, technological hiccups do occur. Defendants out on bond sometimes have difficulty navigating the Zoom platform simply because of their unfamiliarity with it. Those incarcerated are dependent on the jail’s access to technology and resources, which can sometimes be unreliable. So too can the court’s own resources and WiFi break down. For the most part, however, video teleconferencing has been worth the occasional delay. It has helped to promote health and safety, while also allowing courts to continue ensuring defendants’ due process rights are upheld.
Ensuring the Defendant’s Consent
Before using this technology to conduct criminal proceedings, courts must obtain the informed consent of the defendant. Courts should therefore conduct a colloquy with defendants to ensure they understand their right to an inperson hearing and that they consent to a remote hearing.13 Developing a checklist outlining this colloquy is advisable.
First, the court should discuss with the defendant that all parties are appearing virtually and explain the authority granted by the CARES Act, the finding of the Judicial Conference, and the district court’s general order to conduct hearings of this nature remotely with the defendant’s consent. If the defendant has not discussed the right to an in-person hearing with his counsel (and, honestly, even if they have), the court should explain that the defendant has the right to be physically present in the courtroom and that by proceeding with the hearing, the defendant waives that right. To that point, courts should ensure that the consent requirement is meaningful, allowing the option for timely in-person proceedings if the defendant exercises his right to be present. The defendant should be advised that a breakout room is accessible to him and his counsel for confidential communications at any point during the proceeding.
After informing the defendant of these rights, the court must confirm that it is the defendant’s desire to proceed by video teleconferencing. The court should then make specific findings pursuant to the CARES Act that delaying the proceedings is impractical and would seriously harm the interests of justice.
Taking the time to conduct this colloquy and obtain the defendant’s informed consent is well worth the slight delay. Indeed, because of the rights at stake, judges should “go to greater lengths during remote proceedings to ensure both parties appreciate the significance of the proceedings they are involved in and that they are made aware of their options for relief.”14 Failure to do so may result in deprivation of the defendant’s due process rights.
Concerns with Virtual Criminal Proceedings
Courts must also be aware of other pitfalls that could put a defendant’s rights at risk and provide ways to alleviate these concerns. Conducting hearings remotely may interfere with a defendant’s ability to communicate privately with counsel, ability to advocate for himself, and right to confront witnesses. Technology also limits the importance of nonverbal communication, and even mundane technological glitches can significantly impact proceedings if material evidence or witnesses are unable to be seen and heard.
One way to combat communication challenges is by using virtual breakout rooms and/or providing recesses more frequently than with typical hearings to facilitate communication between defendants and defense counsel. To address problems related to nonverbal communication, courts should require video for testifying witnesses and all counsel. This necessitates a plan for situations where the parties cannot see or hear at a critical juncture. Taking a recess to allow a party to reconnect or inviting the party to call in to the videoconference via telephone may be solutions for these technological difficulties. Other issues—for example, if the defendant cannot see and hear—may require rescheduling the hearing altogether to ensure fairness.
Courts should also be sure to use all technological features—such as the mute button or breakout rooms—appropriately to ensure impartial and fair proceedings. During one criminal Zoom hearing that lasted for a total of 48 minutes, a judge allegedly muted the defense attorney eight times for at least 12 minutes.15 While the judge claimed the defense counsel was acting inappropriately, this highlights new potential due process violations that could occur in virtual courtrooms. Accordingly, courts must be sure to use this technology fairly, “prioritiz[ing] the parties’ interests above efficiency and the drive to conclude cases, being sure not to penalize parties for technological difficulties.”16
State Courts and Remote Proceedings
Like the federal system, state trial and appellate courts have also taken steps to encourage the use of video and telephone hearings whenever possible and to confront head-on the challenges created by doing so. The Judicial Council of California, for example, has adopted several temporary emergency rules allowing most criminal pretrial proceedings to be conducted by video teleconferencing.17 Closer to home, so too has the Supreme Court of Missouri authorized the use of remote court proceedings and remote oral arguments.18
St. Louis County Circuit Judge Renee Hardin-Tammons created the protocol for virtual court proceedings adopted by many municipal courts in the St. Louis metropolitan area, enabling the courts to continue effectively serving citizens during the COVID-19 pandemic. Judge Andrea Niehoff, a municipal judge in Frontenac, Missouri, praised Judge Hardin-Tammons’s protocol as highly effective. She hopes that Missouri and other states continue to allow virtual hearings even after the pandemic ends because they have increased access to the justice system: “We’ve had people that were literally at work and were able to appear for their court night instead of having to take off work,” she said.19 She continued, “[w]e have people with small children, they don’t have to get a sitter or bring their small child to court. We have people that don’t have valid driver’s licenses.”20 Virtual courts provide a way around many of the barriers that prevent people from going to a courthouse in person.
The benefits of video teleconferencing also can be seen by looking at Texas’s state court system, which leads the country in the number of virtual hearings.21 Judge Emily Miskel of Collin County, Texas, for example, has emerged as a pioneer of moving both criminal and civil judicial functions online.22 Just two weeks after Texas reported its first case of COVID-19, Judge Miskel conducted a temporary restraining order hearing remotely. She conducted the first remote civil bench trial just a week later.
Within two months, Judge Miskel was the nation’s first judge to conduct a virtual civil jury trial.23 Jurors were selected, listened to evidence, and deliberated from the comfort of their homes. Although the trial did not go without typical technological failures, the feedback on the virtual jury trial was overwhelmingly positive. Judge Miskel also continues to manage a full civil and criminal docket virtually by recreating the physical space of the courtroom through use of breakout rooms, allowing lawyers and their clients, or even opposing parties, time to discuss the case as they normally would in a courthouse prior to the case being called. Once Judge Miskel is ready to call a case, she invites the parties into the main meeting room and proceeds with the hearing.
This process is similar to the one employed by Judge Nicholas Chu, a Texas justice of the peace, who conducted the first fully virtual criminal jury trial in the nation on August 11, 2020.24 The trial involved a misdemeanor traffic violation for a driver accused of speeding in a construction zone.25 Using Zoom, Judge Chu selected a jury, which then heard evidence and ultimately deliberated to a verdict. A glitch at the beginning of the trial in which a juror’s screen froze appears to have been the only technological issue throughout the trial.
Criminal Jury Trials by Video Teleconferencing
Although Judge Chu’s criminal jury trial appears to have been successful, state courts and federal courts alike are reluctant to hold virtual criminal trials in higher-stakes cases (such as those involving jail time) because of concerns about whether the process can truly be fair. True, courts have held that most constitutional rights are waivable, but it is not settled as to whether a defendant can waive his right to an in-person jury trial, especially for serious offenses.
A criminal jury trial by video teleconference also raises concerns about the defendant’s Sixth Amendment right to confront his accusers.26 Further, the right to counsel and to be present are implicated if the communication with counsel virtually is insufficient or made more difficult. Even rather mundane technical glitches could result in due process violations if frozen screens or audio errors deprive the defendant or the jury of the opportunity to see or hear evidence.
Another key obstacle is permitting jurors to receive evidence and deliberate remotely. In physical courthouses, jurors’ phones are often sequestered, eliminating distractions and the availability of extrajudicial evidence. Being in the comfort of their home for a trial may invite jurors to surf the internet, watch television, or take care of children rather than listen thoughtfully to the evidence. It could also make jurors feel more comfortable with exposure to extrajudicial information about the case.
But even if remote criminal jury trials are unlikely anytime soon, use of remote proceedings in other contexts has been beneficial for both state and federal courts to continue the administration of justice. Defendants too have benefited by being able to timely have their pretrial hearings adjudicated without jeopardizing the safety and health of themselves and others.
The Future of Virtual Hearings
The pandemic has forced the judiciary to embrace video teleconferencing in the criminal pretrial and civil contexts. And although the CARES Act provides that the authorization of video and telephone conferencing will either end 30 days after the date on which the national emergency ends or the date when the Judicial Conference finds that the federal courts are no longer materially affected,27 the use of video teleconferencing for certain pretrial hearings is likely to remain.28 And that is a good thing.
The pandemic has shown that when judges are knowledgeable about the technology they are using and prioritize defendant’s rights over closing cases, remote hearings can be successful, are more efficient than traditional hearings, and provide increased access to the court (for those with an internet connection). Experts and judges agree. “Now that the pandemic has compelled us to bring processes online, we’re never going back to the old way of doing business,” said David Slayton, the administrative director of the Texas courts.29 The Conference of Chief Justices and the Conference of State Court Administrators concur: “[I]t will be around long after the pandemic ends.”30 We might as well embrace it.
1. The Supreme Court has also held that the press and public have a similar right under the First Amendment to attend all criminal proceedings in both state and federal court. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980).
2. CARES Act, Pub. L. No. 116-136, 134 Stat. 281 (2020).
3. Id. § 15002, 134 Stat. at 528–29.
5. The Justice Department had urged Congress to remove the consent requirement and also allow indefinite detention without a hearing due to emergency circumstances. Josh Gerstein, Stimulus Bill Contains Watered-Down Justice Dept. Wish List, Politico (Mar. 31, 2020), https://www.politico.com/news/2020/03/31/stimulus-bill-contains-justice-department-wish-list-157482.
6. Judiciary Authorizes Video/Audio Access During COVID-19 Pandemic, U.S. Cts. (Mar. 31, 2020), https://www.uscourts.gov/news/2020/03/31/judiciary-authorizes-videoaudio-access-during-covid-19-pandemic.
7. In re Criminal Case Operations Due to COVID-19 Response (W.D. Mo. as amended Sept. 24, 2020).
8. Adam Liptak, Supreme Court Hears First Arguments via Phone, N.Y. Times, May 4, 2020, at A20.
9. Paul McNally, How to Safely and Securely Use Zoom for Government Meetings, Arc 3 Commc’ns (July 14, 2020), https://arc3communications.com/how-to-safely-and-securely-use-zoom-for-government-meetings. Thus far in the pandemic, hackers have interrupted and caused delays by uploading pornographic images and obscene language in both criminal and civil Zoom hearings. Carlie Porterfield, Twitter Hacking Court Hearing Gets “Zoombombed” with Porn, Forbes (Aug. 5, 2020), https://www.forbes.com/sites/carlieporterfield/2020/08/05/twitter-hacking-court-hearing-gets-zoombombed-with-porn/?sh=b0cc195add33 [https://perma.cc/Y6X3-6M3Z]; Paul Venema, Bexar County Court Hearing Streamed on Zoom Hacked with Porn, KSAT (Aug. 10, 2020), https://www.ksat.com/ news/local/2020/08/10/bexar-county-court-hearing-streamed-on-zoom-hacked-with-porn [https://perma.cc/M9DG-7462].
10. Melinda Burgess, Zoom for Government, DistributedGov (May 27, 2020), https://distributedgov.com/help/zoom-for-government.
12. Judges within the district also have conducted mediations virtually using the breakout room function, which allows parties to converse confidentially in separate virtual “rooms.” And they have successfully used video teleconferencing to conduct civil proceedings, including preliminary hearings and status conferences.
13. In re Criminal Case Operations Due to COVID-19 Response at 3 (W.D. Mo. as amended Sept. 24, 2020).
14. Douglas Keith & Alicia Bannon, Principles for Continued Use of Remote Court Proceedings, Brennan Ctr. for Just. (Sept. 10, 2020), https://www.brennancenter.org/our-work/research-reports/principles-continued-use-remote-court-proceedings.
15. Joe Patrice, Fun with Mute Buttons: Civil Rights Violation Edition!, Above the L. (July 21, 2020), https://abovethelaw.com/2020/07/fun-with-mute-buttons-civil-rights-violation-edition/ [https://perma.cc/KS7D-NUG8].
16. Keith & Bannon, supra note 14.
17. Cal. St. Rules of Ct. App. I (Emergency Rules 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11), available at https://jcc.legistar.com/View.ashx?M=F&ID=8234474&GUID=79611543-6A40-465C-8B8B-D324F5CAE349.
18. Rachel Lippmann, As Pandemic Shutdowns Drag On, St. Louis–Area Municipal Courts Go Virtual, St. Louis Pub. Radio (Sept. 16, 2020), https://news.stlpublicradio.org/government-politics-issues/2020-09-16/as-pandemic-shutdowns-drag-on-st-louis-area-municipal-courts-go-virtual.
21. The New Normal in Texas Courtrooms, Tex. Ass’n of Counties (Oct. 13, 2020), https://www.county.org/News/County-Issues/2020/October/The-New-Normal-in-Texas-Courtrooms. By October 2020, Texas judges had held over 550,000 remote hearings. Id.
22. Lana Barnett, The Jury Is Out—of the Courthouse: Navigating the Nation’s First Virtual Jury Trial, Harv. L. Today (Oct. 20, 2020), https://today.law.harvard.edu/the-jury-is-out-of-the-courthouse.
23. Id. Before conducting her first jury trial remotely, Judge Miskel experimented with a summary jury trial—a nonbinding, one-day proceeding that litigants are required to complete before proceeding to trial. Id. In a summary jury trial, the parties put on an abbreviated version of their case to a selected jury, which then deliberates and reaches a nonbinding verdict. Id.
24. David Slayton, Jury Trials During the COVID-19 Pandemic: Observations and Recommendations, Tex. Jud. Branch 12 (Aug. 28, 2020), https://txcourts.gov/media/1449660/jury-report-to-scotx-final.pdf.
25. Justin Jouvenal, Justice by Zoom: Frozen Video, a Cat—and Finally a Verdict, Wash. Post (Aug. 12, 2020), https://www.washingtonpost.com/local/legal-issues/justice-by-zoom-frozen-video-a-cat--and-finally-a-verdict/2020/08/12/3e073c56-dbd3-11ea-8051-d5f887d73381_story.html.
26. That said, in Maryland v. Craig, the Supreme Court granted a limited exception to the accused’s right to confront his accuser in person, holding that the right “may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” 497 U.S. 836, 850 (1990). Ensuring safety in the middle of a pandemic surely qualifies as an important public policy, but the second prong—reliability—may be lacking in video teleconferencing hearings.
27. Judiciary Authorizes Video/Audio Access During COVID-19 Pandemic, U.S. Cts. (Mar. 31, 2020), https://www.uscourts.gov/news/2020/03/31/judiciary-authorizes-videoaudio-access-during-covid-19-pandemic.
28. Camille Gourdet et al., Court Appearances in Criminal Proceedings Through Telepresence, Priority Crim. Just. Needs Initiative, https://www.rand.org/content/dam/rand/pubs/research_reports/RR3200/RR3222/RAND_RR3222.pdf (last visited Oct. 29, 2020).
29. Erika Rickard & Qudsiya Naqui, Coronavirus Accelerates State Court Modernization Efforts: Texas and Michigan Among Those Moving Hearings Online as People Navigate Legal Matters Amid Pandemic, Pew (June 18, 2020), https://www.pewtrusts.org/en/research-and-analysis/articles/2020/06/18/coronavirus-accelerates-state-court-modernization-efforts.
30. CCJ/COSCA’s Rapid Response Team Hosting a Webinar to Teach Others How to Establish Remote Hearings, Nat’l Ctr. for St. Cts., https://www.ncsc.org/newsroom/at-the-center/2020/apr-6 (last visited Oct. 26, 2020).