Aug. 15, 2012 – Last year, a Pennsylvania court allowed a deported couple in Mexico to testify for custody of their U.S.-born children via Skype, a free Internet-based phone and video service that lets people see each other on computer or television screens while conversing. Last year in Georgia, a judge allowed a witness to testify via Skype from Texas in a criminal case.
Although Skype offers an alternative to expensive videoconferencing equipment or in-person testimony, the questionable quality of the service can raise legal problems, notwithstanding the confrontation clause, and Wisconsin courts aren’t ready to consider Skype as an option.
“I don’t know if we’re ready to go there,” said John Voelker, director of State Courts. “I could see how Skype might be beneficial for informal proceedings. But for witnesses, especially in criminal cases, I’m not sure Skype is something that both sides will agree is sufficient.”
For one thing, the U.S. and Wisconsin constitutions allow criminal defendants to confront the witnesses against them, face to face.1 In the Georgia case, the defendant’s attorney made the motion to allow witness testimony by Skype because the witness helped the defendant’s case. The prosecutor objected, arguing that a right of confrontation should apply equally to the state.
Wisconsin also has a videoconferencing statute that ensures minimum video and audio quality. Under Wis. Stat. chapter 885, Subchapter III, promulgated by the Wisconsin Supreme Court and adopted in 2008, circuit courts can “permit the use of videoconferencing technology in any pre-trial, trial or fact-finding, or post-trial proceeding” in criminal, civil, and special proceedings.
But “video and sound quality shall be adequate to allow participants to observe the demeanor and nonverbal communications of other participants and to clearly hear what is taking place in the courtroom to the same extent as if they were present in the courtroom.”2
According to former Richland County Circuit Court Judge Edward Leineweber (now reserve judge), a member of the videoconferencing subcommittee that petitioned for the new rule, the videoconferencing statute purposely leaves room for new videoconferencing technology, so long as it meets the technical and operational standards set out in section 885.54.
“The effort in drafting the rules was to be technology nonspecific, because we understood that the technology would evolve,” Leineweber said. “If Skype improves to the point that it meets the criteria of the rules, then I don’t think there would be a problem in using that platform.”
Wisconsin Supreme Court Rules Against Defendant in Videoconferencing Case
Recently, the Wisconsin Supreme Court held that criminal defendants have a statutory “right to be present in the same courtroom as the presiding judge” at plea hearings and other critical proceedings.
But a majority also ruled (5-2) that the right can be waived, and defendant Jon Soto waived the right when he agreed to have the presiding judge conduct the plea hearing via videoconference from a courthouse in a different county.
State v. Soto
, 2012 WI 93 (July 12, 2012)
Videoconferencing in Wisconsin
According to a report by the Videoconferencing Subcommittee of the Wisconsin Supreme Court’s Planning and Policy Advisory Committee, videoconferencing is “an interactive technology that sends video, voice, and data signals over a transmission circuit so that two or more individuals or groups can communicate simultaneously using video monitors.”
Some Wisconsin counties use telephone transmissions to link courthouses with partner venues such as jails, prisons, and mental health or drug treatment facilities. Others counties use internet transmissions. Some, like Rock and Trempealeau counties, use both. In general, costs include equipment, installation, and vendor maintenance to address glitches or updates.
The chosen videoconferencing systems and equipment depend on frequency of use and cost, since counties bear the burden of funding the tool.
Indeed, the videoconferencing statutes make clear that judges can’t compel counties to use it. The Director of State Courts Office does not keep statistics on videoconferencing usage, but every county is set up to use it, according to a videoconferencing resource directory.
When Leineweber was the judge in Richland County, which uses an Internet transmission for videoconferencing, he conducted most bail hearings through videoconferencing. He says in general, courts use videoconferencing to relieve jail staff from the time and resources necessary to transport and accompany defendants from a secure location to the courtroom.
William Foust, chief judge for the Dane County Circuit Court, said half the courtrooms at the Dane County Courthouse are equipped for videoconferencing, and court commissioners use it frequently in child support hearings where a parent is in jail. Dane County also uses it more frequently for commitment hearings for individuals housed in mental health facilities.
In 2009, Jackson County Circuit Court Judge Thomas Lister used videoconferencing to conduct a plea hearing. The defendant was in the circuit court for Trempealeau County, where the charges were filed, and agreed to let Judge Lister conduct the hearing via videoconference while seated in the Jackson County courthouse. The defendant, Jon Soto, later challenged the plea on the grounds that the judge was not “physically present” at the plea hearing.
In the first reported case involving the state’s videoconferencing statute, the Wisconsin Supreme Court recently ruled that a defendant’s right to be present in the courtroom under Wis. Stat. section 971.04 includes the right to have the judge be “physically present.”
However, the supreme court ruled that Soto waived the right, because he explicitly agreed to have the plea hearing held by videoconference. Note that Soto was in the courtroom in Trempealeau County, not in jail. He did not waive his right to be present in the courtroom under section 971.04, only the right to have the judge be physically present also.
The videoconferencing statute recognizes that, “consistent with the limitations of the technology, the rights of litigants and other participants in matters before the courts, and the need to preserve the fairness, dignity, solemnity, and decorum of court proceedings.”
It’s important to recognize that using the technology cannot undermine a litigant’s perception of fairness, says Leineweber. “They must have the sense that they had their day in court,” he said. “The rules and guidance have given judges confidence in the process. So I think judges are feeling more inclined to use videoconferencing, just as Judge Lister did in that case.”
Skype in the Courts
Courts can and do use videoconferencing with partners such as county jails and other courthouses, which have the same capability to use the transmission networks. But that network may not work for all situations. State and federal courts are using Skype in different situations that do not involve a criminal defendant appearing via videoconference.
In the custody case involving two Mexican nationals, the couple’s lawyer argued that renting videoconferencing equipment in Mexico to connect with the U.S.-based court would have cost between $300 and $500, money the couple did not have. In the Georgia case, the indigent defendant did not have the money to pay for his out-of-state witness’s travel expenses.
A court of appeals in Washington D.C. vacated a cost recovery award where a party used a “Lamborghini videoconferencing method” to depose a witness for an hour at $3,115.3
In scrutinizing the deposition cost, the court referred to and took “judicial notice” of Skype, explaining it as “a popular service that allows people to make unlimited calls over the Internet for free using just a web camera, many of which cost under $100, and a computer.”4
In Florida, a federal district court allowed the use of Skype for a witness deposition from Genoa, Italy, so long as “high-level broadband facilities” were used “at both ends of the communication to ensure a quality transmission.”5 The court reporter was allowed to swear-in the witness via Skype, as long as identification documents were shown and physical copies made available.
In south Florida, one judge uses Skype to authorize warrant requests sent from police, which send the requests straight from the scene of a potential crime. Nebraska courts are using Skype to provide interpreter services, and to conduct informal proceedings with attorneys.
Nerino Petro, the advisor to the State Bar of Wisconsin Law Office Management Assistance Program (Practice411™), said the Internet connection, known as bandwidth, is often the issue with Skype. The amount of bandwidth controls the Internet connection speed. A slow connection can cause glitches, and the Wisconsin rules demand a quality connection.
“Quality can suffer if the bandwidth is low or a firewall causes issues,” Petro said. “With the continual strain on judicial budgets across the country, I think that the most forward-looking courts are going to start using Skype in the near future rather than wait for better solutions that will most likely cost much more and only be available on a limited basis.”
Voelker says judges have cited litigants’ objections and access to videoconferencing equipment and technology as primary reasons for not using it. Web-based programs like Skype could be a cost-effective alternative in the future, if it meets the criteria of the videoconferencing statute.
Shelly Cern, a senior policy analyst at the Wisconsin Director of State Courts Office, says the PPAC’s Videoconferencing Subcommittee will reconvene this year to update the committee’s report and guidebook for videoconferencing in the state’s courts.
Cern expects a survey of current usage and new videoconferencing technologies, with an updated report. Skype and other technology may be on the discussion agenda, she says.
Joe Forward is the legal writer for the State Bar of Wisconsin.
1 U.S. Const. amend. VI; Wis. Const. art. I, § 7.
2 Wis. Stat. § 885.54(1)(c).
3 Mody v. Center for Women’s Health, P.C.,Â 998 A.2d 327 (D.C. 2010)
4 Id. at 336.
5 Balu v. Costa Crociere S.P.A., 2011 WL 3359681 (S.D. Fla. 2011)