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    Bridging the Distance: Videoconferencing in Wisconsin Circuit Courts

    On July 1, 2008, a new rule took effect that regulates and encourages the expanded use of video technology in Wisconsin circuit courts while protecting litigants’ rights. Here’s how it works.

    Hon. Edward E. Leineweber

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    Vol. 81, No. 7, July 2008

    Bridging the Distance: Videoconferencing in Wisconsin Circuit Courts

    On July 1, a new rule took effect that regulates and expands the use of video technology in Wisconsin circuit courts while protecting litigants' rights. Here's how it works.
    Camera

    by Hon. Edward E. Leineweber

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    More than two years in the making, subchapter III of Wis. Stat. chapter 885, entitled "Use of Videoconferencing in the Circuit Courts," was adopted recently by the Wisconsin Supreme Court and took effect on July 1, 2008.1 This new rule, perhaps the most advanced in the country in terms of encouraging the expanded use of this technology while carefully protecting the rights of litigants, gives the circuit courts the authority and guidance to move forward in implementing videoconferencing in court proceedings, subject to clearly expressed limits and litigant safeguards.

    The rule is relatively short and simple in structure and is easy to apply once its basic mechanisms are understood. This article briefly lays out the history of the adoption of the rule, explains its structure and operation, and provides several examples to illustrate its application in practice. Finally, because the use of videoconferencing in the courts is developing rapidly, feedback on the implementation of and early experience with the new rule is encouraged.

    A Brief History

    Although Wisconsin has over the years accumulated a vast patchwork of statutes and rules concerning the use in court proceedings of electronic communications with a visual or video component, together these laws gave courts only limited express authority in specifically enumerated situations and left many obvious and likely unobjectionable situations unaddressed. Some courts reacted to this ambiguous state of affairs by assuming they had authority to require the use of videoconferencing technology in situations they thought appropriate, while other courts were reluctant to take advantage of this tool in even innocuous situations for fear that the use was without legal authority. The result was the sporadic and uncertain advance of a technology that offers, if properly employed, substantial benefits for all participants.

    For more than a decade, the Wisconsin Supreme Court has adhered to a policy of embracing the introduction of videoconferencing technology into court proceedings. In 1998 the supreme court's policy and planning advisory committee (PPAC) joined with the Wisconsin Counties Association to form a videoconferencing subcommittee, which was charged with the task of developing a "standards of good practice" manual to help counties and courts understand, design, and implement this technology.2 Bridging the Distance: Implementing Videoconferencing in Wisconsin, published in 1999, was the result. A technically-oriented how-to manual, it quickly gained national recognition, as well as widespread use in Wisconsin.

    By 2004, the original manual was becoming outdated because of the advance of videoconferencing technology, and so the PPAC revived the subcommittee to update it. Bridging the Distance - 2005, available both in print and online, was issued shortly thereafter and is systematically updated as the technology continues to advance.

    The PPAC videoconferencing subcommittee next turned its attention to developing a comprehensive court rule to facilitate the use of this technology while protecting litigant rights and the dignity of court proceedings. For this task, the lawyers, judges, and end-users of videoconferencing in court proceedings took the leading roles while the more technically-oriented committee members rested from their recent labors. This more narrowly-focused subcommittee included two public defenders, an assistant attorney general, a district attorney, state mental institution staff members, a district court administrator, and three judges.

    A proposed rule on the use of videoconferencing in the courts was developed by the subcommittee, presented to the full PPAC in May 2007,3 and accepted. The director of state courts petitioned the supreme court for adoption of the proposed rule in September 2007, and the court heard the petition, No. 07-12, in January.4 The supreme court solicited additional input from various institutional stakeholders, made minor modifications to the rule as proposed, and adopted the rule as subchapter III of Wis. Stat. chapter 885 by order dated May 1, 2008. Pursuant to Wis. Stat. section 751.12, the rule took effect July 1, 2008.5

    The Rule's Overall Intent and Structure

    Videoconferencing

    Videoconferencing component's on Judge Leineweber's desk include a microphone and monitor.

    The new videoconferencing rule applies to both civil and criminal proceedings. It permits the use of videoconferencing technology at the discretion of the circuit courts, even over the objection of litigants, if certain technical and operational standards are met. The rule provides courts with specific criteria to inform the exercise of their discretion, and comments published with the rule offer additional guidance in interpreting and applying the rule.

    The rule itself is comprised of eight subsections, including a statement of intent; definitions; technical and operational standards; criteria for exercise of the courts' discretion; specific provisions for use of videoconferencing in civil cases and special proceedings; specific provisions for use in criminal cases and proceedings under chapters 48, 51, 55, 938, and 980; provisions for waivers and stipulations; and applicability. As mentioned, substantial commentary follows the rule itself.

    Subsection 885.50 contains the statement of intent. It recognizes and summarizes the larger debate concerning the use of videoconferencing in court proceedings and makes it clear that, although the supreme court wants circuit courts to use this technology to the greatest extent possible consistent with the limits of the technology, the rights of litigants must be scrupulously preserved, as must the fairness, dignity, solemnity, and decorum of court proceedings themselves.

    The supreme court recognizes that, while cost savings and efficiencies might be achieved in one constituent part of the entire court system, the indiscriminate use of this technology can result in the abridgment of fundamental rights,6 the shifting of costs to other parts of the court system, and the overall degradation of the proceedings.

    It does not take much imagination to envision unfortunate scenarios such as the following: the depiction on a tiny courtroom video screen of a criminal defendant standing in a jail cellblock hallway, perhaps being arraigned or having bail set, while jailers move other prisoners down the hall behind the defendant, shouting instructions to other staff or inmates, with the crash of jail doors being opened and closed in the background, shattering the usual hushed quiet of the courtroom. People who have experience with the early use of videoconferencing know this scenario is not an exaggeration.

    The supreme court expressed its confidence that the benefits of videoconferencing to all participants can best be promoted by taking an open-ended approach to implementation, under the supervision and control of the circuit courts, subject to the limitations and guidance provided in subchapter III.

    Technical and Operational Standards

    Videoconferencing

    Audio and video components, like the monitor shown on Judge Leineweber's bench, enable in-court and remote participation

    During spirited debate, the rule-writing members of the PPAC videoconferencing subcommittee expressed the significant concern that the quality of much of the videoconferencing equipment presently available in circuit courts was not good. Single-camera, cart-based systems; poor or nonexistent private communication facilities; uncontrolled, noisy, cramped quarters for the remote locations; and other similar problems actually experienced in the past raised substantial concerns. Committee members agreed that litigants must be able to materially participate7 in all critical stages of proceedings that might subject them to criminal sanctions or impairment of other fundamental rights. Similarly, the presentation of witness testimony via video had to be controlled in a manner that preserved the fundamental fairness of the proceedings and other well-established constitutional rights. The establishment of stringent technical and operational standards was an important component of the solution embodied in the new rule.

    Section 885.54 sets forth those technical and operational standards. In commonsense, plain-language terms, this subsection describes the minimum elements of a videoconferencing court scenario that, if established and maintained throughout the proceeding, will ensure that the persons at the remote location will be able to materially participate in what is taking place in the courtroom. The standards address such things as the quality and clarity of the video and audio components; the basic ability to communicate visually and audibly between the courtroom and the remote location; the ability to share documents and other exhibits; and the capacity for counsel to communicate privately with clients. The rule provides that these minimum standards must be met if videoconferencing is to be used over a litigant's objection.

    The rule provides that, if the court is considering using the system over objection, the court must certify for the record that the technical and operational standards of the videoconferencing system in use in a specific hearing are met. If the standards are not met, then videoconferencing is not appropriate for that hearing, absent the parties' court-approved waiver or stipulation.

    Decisional Criteria; Exercise of Discretion

    Subsection 885.56 establishes criteria that the circuit court may consider in ruling on an objection to the use of videoconferencing, which might be made even though the technical and operational standards of section 885.54 are met for a particular proceeding. These criteria, drawn largely from Wis. Stat. section 807.13(2) and familiar to most attorneys, answer the following question: "Our video system is good enough to meet the minimum standards of the rule, but do we really want to use video in this particular situation, especially in light of the objection being made?"

    The decisional criteria, which are meant to be illustrative but not exhaustive, include such factors as whether surprise or prejudice will result; the proponent's efforts to secure the personal appearance of a witness; the convenience of the parties; the cost of producing the witness in person, especially in light of the anticipated significance of his or her testimony; the importance of having the witness present to impress on him or her the need to be truthful; the ability to cross-examine the witness; the significance of the interest at stake in the proceeding; the danger of the remote participant appearing via video in a diminished or distorted sense; and whether the person who might appear by video presents a significant security risk if produced in person in court.

    To encourage courts to err on the side of caution in ruling on objections to the use of video, the rule provides that denial of the use of videoconferencing technology is not appealable.8

    Procedures to Propose and Object to Use of Videoconferencing

    Sections 885.58 and 885.60 deal with objections to use of videoconferencing in civil cases and special proceedings, in the first instance, and in criminal cases and proceedings under chapters 48, 51, 55, 938, and 980, in the second instance. In general, the procedures are similar for proposing the use of videoconferencing, objecting to its use, and ruling on an objection once made.

    In all cases, absent a waiver or stipulation, the technical and operational standards of section 885.54 must be met before a witness may be called via video over objection. If the standards are met, the proponent may offer the testimony by videoconference if the proper advance notice, 30 days in cases under section 885.58 and 20 days under section 885.60, is given. In all cases, any objections to the video presentation of the testimony must be made within 10 days of receiving the notice of intent. The court may for cause shorten the time to provide notice and to make objection. If an objection is made, the court resolves the matter pursuant to either section 885.58 or section 885.60, applying the decisional criteria of section 885.56.

    Criminal Cases and Proceedings Under Chapters 48, 51, 55, 938, and 980

    Videoconferencing

    A witness testifies via videoconference in Judge Leineweber's Richland County courtroom.
    Photos: Jesse Peckham

    These proceedings are treated differently under the new videoconferencing rules because of the significant constitutional rights involved9 and because of the severe consequences that can befall defendants and respondents in these matters, including the imposition of criminal sanctions; removal of children from the home and termination of parental rights; loss of independence; and loss of liberty through long periods of incarceration or institutionalization. Litigants in criminal cases and proceedings under chapters 48, 51, 55, 938, and 980 are afforded veto rights in many situations in which a court might deny an objection to the use of videoconferencing in purely civil-type cases.

    Most significantly, the new videoconferencing rule preserves to defendants and respondents their rights to materially participate in the proceedings by being physically present in the courtroom during all critical stages of the proceedings. Although the rule specifically enumerates several types of hearings as being critical stages, that is, evidentiary hearings, trials or fact-finding hearings, plea hearings at which a plea of guilty or no contest or an admission will be offered, and sentencing or dispositional hearings, the rule does not attempt to define the concept further but incorporates existing law and new law as it is adopted or decided.10

    In addition, section 885.60 grants to defendants and respondents in these types of proceedings the additional right to exercise a veto over the presentation by videoconferencing of any of an opponent's evidence. If a timely objection is made to the plaintiff's or petitioner's notice of intent to present video evidence, the court must sustain the objection. On the other hand, if the defendant or respondent proposes to present evidence by video, a timely objection by the plaintiff or petitioner is resolved by the court in the same manner as in civil cases under section 885.58, that is, by the application of the decisional criteria of section 885.56.

    The supreme court's solicitousness of the rights of defendants and respondents in these cases is apparent in these special provisions designed to protect their constitutional and fundamental rights by preventing the use of videoconferencing when such rights might only arguably be impaired by using videoconferencing.

    Waivers, Stipulations, and Applicability

    Videoconferencing systems that do not meet the technical and operational standards of section 885.54, but that function adequately for the purposes employed, are presently in daily use in Wisconsin circuit courts. Section 885.54 makes clear that litigants, counsel, and courts may continue to use this equipment as long as they do so by agreement and the court approves.

    The new videoconferencing rule specifically supplants all other statutes and rules concerning use of any form of electronic communication with a video or visual component, but it preserves without modification authority for the use of telephone communication or any other form of electronic communication having only an audio component. The rule's import is simple but clear: Keep using the telephone as you have been, but start operating under this rule for videoconferencing.

    Edward E. 
Leineweber

    Edward E. Leineweber, U.W. 1976, Richland County Circuit Court judge, is a member of the Wisconsin Supreme Court's policy and planning advisory committee and a member of the PPAC videoconferencing subcommittee, which originally proposed the new videoconferencing rule. He serves on the State Bar Bench and Bar Committee and cochairs its uniform local rules subcommittee. He is a member of the Wisconsin Judicial Council and chairs its strategic planning committee and evidence and civil procedure committee, which is drafting electronic discovery rules.

    Examples of the Rule in Operation

    Several simple examples illustrate the structure and operation of the rule in practice.

    1) Records custodians in civil case or special proceeding. In a personal injury case, trial counsel neglects to provide certified health care records in time to avoid the necessity of calling records custodians. The health care records custodians are not present in Wisconsin, and it would be quite expensive to produce them in person in court. The proponent serves and files the notice required by section 885.58(2)(a) to offer the testimony of the records custodians by videoconferencing, and the opponent objects. At the hearing, the proponent first certifies that the courtroom videoconferencing system meets the technical and operational standards of section 885.54, as required by subsection (2), which enables the court to consider the request on the merits.

    After weighing the decisional criteria of section 885.56, the court concludes that the objection should be overruled, and the video testimony permitted, because the opponent cannot identify any surprise or prejudice that would result from allowing the video testimony, no significant cross-examination concerning the documents is anticipated, no credibility concerns are expressed, and the cost of producing these witnesses in court in person would far exceed the significance of this testimony to a determination of the action. The other decisional criteria of the subsection do not appear to be relevant.

    2) Eyewitness in civil case. Trial counsel wants to have an eyewitness to an intersection collision testify by video. The attorney argues that the witness, who lives in a neighboring state, a distance of about 350 miles, cannot afford to take time off work, and it would be very expensive for his client to pay hotel bills, travel expenses, and meals. The opponent objects, pointing out that a major dispute in the case concerns which party entered the intersection first, and that she will need to extensively cross-examine this witness using aerial photos, intersection diagrams, and the witness's prior contradictory statements. Further, opposing counsel argues, this witness needs to be present in person in the courtroom to be sufficiently impressed with the need to be truthful, and to be subject to any realistic possibility of a perjury prosecution if it can be shown that she lied in her testimony.

    In addressing the motion, the court first finds that the video system in the court meets the technical and operational standards, but the court nevertheless sustains the objection and denies the use of video testimony. The court holds that substantial prejudice to the opponent might result from an inability to effectively cross-examine this crucial witness, and that the witness needs to be personally present so that the court can impress on her the importance of telling the truth before the jury, subject to the jeopardy of a perjury prosecution.

    3) Records custodians and witnesses in criminal case or chapter 48, 51, 55, 938, or 980 proceeding. In a negligent homicide prosecution involving similar scenarios as the first two examples, the district attorney seeks to offer the records custodians' testimony by video, but the defendant objects. Even though the videoconferencing system meets the technical and operational standards of section 885.54, and the decisional criteria of section 885.56 support allowing the custodians to appear by video, the court must sustain the objection of the defendant prohibiting the use of video, and the witness must be produced in person, pursuant to rights granted to defendants and respondents under section 885.60(2)(d).

    On the other hand, the court will analyze the prosecutor's objection to the defendant's request to have the out-of-state eyewitness appear by video in the same way as in the civil suit, weighing the decisional criteria before making a ruling.

    4) Inadequate equipment in all types of cases. The courtroom videoconferencing system is inadequate to meet the technical and operational standards of section 885.54 because both the sound and picture quality are poor, and it is very difficult to manipulate exhibits during testimony without a fax machine being available at the remote location. In spite of these shortcomings, all parties agree that a certain witness may appear by video without objection, and that the exhibits can be mailed to her in advance.

    The court is presented with the stipulation waiving compliance with the minimal technical and operational standards and waiving any other objections under the decisional criteria of section 885.56. The court, satisfied that the proceedings will not be compromised by permitting the testimony by video, approves the parties' stipulation pursuant to section 885.62.

    Opportunity for Improvement While Avoiding Negative Consequences

    The new rule on use of videoconferencing in the circuit courts is the product of years of careful and comprehensive study of issues concerning the use of video technology in court proceedings and represents a bold step forward by the Wisconsin Supreme Court. Significant increases in productivity and efficiency can be achieved, while avoiding the serious negative consequences that could attend the indiscriminate, unfair use of this technology. The supreme court has carefully crafted a rule that enables Wisconsin circuit courts to capture the benefits of the technology while protecting the rights of litigants and preserving the fairness, dignity, solemnity, and decorum of court proceedings.

    The PPAC videoconferencing subcommittee will monitor the implementation of the new rule and report to the PPAC and the court periodically on its findings. Attorneys, judges, court commissioners, court staff, and other interested observers are encouraged to report their experiences to the subcommittee.11 All comments and opinions will be most welcome.

    Endnotes

    1Videoconferencing, as defined in section 885.52(3) of the new rule, means an interactive technology that sends video, voice, and data signals over a transmission circuit so that two or more individuals or groups can communicate with each other simultaneously using video monitors. It is a live, real-time, interactive form of communication and does not include the presentation of prerecorded video testimony pursuant to subchapter II of Wis. Stat. chapter 885. The definition is intended to encompass emerging technologies such as Web-based solutions, as they appear, so long as the functional requirements of the definition are met.

    2The original impetus to explore the use of videoconferencing in Wisconsin courts came from the Hon. William M. McMonigal, Green Lake County Circuit Court judge, who chaired the original videoconferencing committee created by the supreme court in 1996. Judge McMonigal, a former long-time vice chair of the PPAC, has remained the chair of the PPAC subcommittee on videoconferencing, which grew out of the original efforts. Other persons who have served the subcommittee over the years are listed in Bridging the Distance - 2005, which can be found online at www.wicourts.gov/about/committees/docs/ppacvidconf.pdf.

    3The Final Report and Recommendations of the PPAC Subcommittee on Videoconferencing can be obtained by contacting Michelle Cyrulik, PPAC senior policy analyst, at michelle.cyrulik@wicourts.gov.

    4The full text of Petition 07-12, including supporting materials submitted with the petition, and an audio archive of the Jan. 8, 2008, hearing on the petition, can be found at www.wicourts.gov/supreme/petitions_audio.htm.

    5The order creating subchapter III of Wis. Stat. chapter 885, which includes a copy of the rule and the comments published with the rule, can be found online at www.wicourts.gov/sc/rulhear/DisplayDocument.pdf?content=pdf&seqNo=32608.

    6The PPAC videoconferencing subcommittee and the supreme court specifically avoided attempts to define certain concepts mentioned in the rule, such as material participation, critical stages of the proceeding, and fundamental rights, preferring to allow these concepts to develop over time in the case law or in future rule-making or legislation. Case law already exists to some extent, and the rule is to be applied in light of this existing precedent. It is not the intent of this procedural rule to create or affect substantive legal rights. See the comments to section 885.60, which are published with the rule.

    7While the term material participation is not specifically defined for the reasons set out in n.6, supra, one might think of the ultimate degree of participation in the proceeding as that which a litigant would enjoy if personally present in the courtroom. The concept of material participation recognizes that some degree of interference with that ultimate degree of participation caused by the use of video technology might be tolerated and still pass muster. However, it is not permissible for that interference to be so substantial as to have significant impact on a litigant's rights to a fair and impartial hearing, effective confrontation and cross-examination, the effective presentation of evidence, or the exercise of other substantive and procedural rights.

    8In its comments to section 885.56, the supreme court noted that the denial of the use of videoconferencing is not appealable as an interlocutory order but might be as part of the appeal from the final judgment, to the extent that the denial involves issues related to a party's ability to present its case and broader issues related to the presentation of evidence.

    9Such rights might include, but are not limited to, the defendant's right to appear in street clothes without apparent restraints; to take the stand to testify or choose to remain silent; to confront and cross-examine the state's witnesses; and to effectively present favorable evidence in his or her defense.

    10See the comments to Wis. Stat. section 885.60, which are published with the rule.

    11Please direct comments to Michelle Cyrulik, PPAC senior policy analyst, at gov michelle.cyrulik wicourts wicourts michelle.cyrulik gov.




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