In the current COVID-19 world, with courthouses essentially “closed” to physical appearances by defendants and the general public, judges are depending more and more on using video to hold criminal court.
While this has proved very effective in restarting the wheels of justice that came to a halt briefly in March due to coronavirus, it raises the issue of the defendant’s right to appear physically before a judge.
In this article, I first discuss when a defendant has a right to demand an in-person hearing over a video hearing. Next, I explain the framework that governs how video criminal court works. Finally, I pose a hypothetical for attorneys to consider when a client who is scheduled for a video court hearing.
Legal Framework: In-person Hearing
Most important to the defense for video court, Wis. Stat. section 971.04 outlines a defendant’s statutory right to be present for a proceeding. It lists the proceedings where a defendant has the right to be present. Here, “present” meaning physically being present in the same room as the presiding judge.1 This list includes important proceedings, such as arraignment, any evidentiary hearing, trial, sentencing, and imposition of judgment.2
However, the statute does not contain a “catch-all” to apply to any potentially crucial proceeding that is not enumerated. Thankfully, our Supreme Court provides us with a constitutional due process catch-all. Due process guarantees a defendant the right to be present when a criminal proceeding is critical to its outcome and the defendant’s presence would contribute to the fairness of the proceedings.3 Since this right is a statutory one, a defendant may waive their right to be physically present and consent to video hearings.
Legal Framework: Video Hearings
Next, there are two sections of the Wisconsin statutes that lay the framework for how court can be held by video conference. First, Wis. Stat. section 967.08 grants the court statutory authority to hold telephone and audiovisual proceedings. Courts have statutory authority to hold certain hearings by video conference unless there is good cause not to proceed by video.4
Section 967.08(2) names the four types of proceedings that can held by video:
- initial appearances;
- waiver of preliminary hearing, competency hearing, and jury trial;
- motion for extension of time for things such as preliminary hearing and speedy trial; and
- arraignments, if defendant will plead not guilty or refuse to plead.5
Section 967.08(3) adds a number of other non-evidentiary proceedings such as bond motions and motions to postpone things such as trial.6 This means that, while not explicitly stated, if a proceeding becomes evidentiary in nature, the court would no longer have the authority to hold it by video. Additionally, since the list under this statute is so specific as to what hearings can held by video, if a proceeding is not enumerated here, it may not be held by video.7
Second, Wis. Stat. sections 885.50 to 885.64 set the standards ordered by the Wisconsin Supreme Court for videoconferencing. Given the statement of intent under section 885.50, these standards are set by the Supreme Court using its rule-making authority, which means that these rules cannot alter or override statutory rights such as the defendant’s right to appear physically.
Wis. Stat. section 885.54(1) establishes the technical operating standards for video, such as all parties allowed to hear, see, and communicate with each other, and all parties being able to hear and see the same things.8
The statute also addresses criminal matters, specifically stating that a defendant and counsel must have a way to communicate privately during video proceedings. This means that when the defendant and counsel are physically together but appearing remotely (for example, from a jail or prison), they should be able to mute the microphone from broadcasting their private conversations.9
If the defendant is not in the physical presence of counsel, “a separate private voice communication facility shall be available so that the defendant … and his or her attorney are able to communicate privately during the entire proceeding.”10
Wis. Stat. section 885.56 lists the factors a judge should consider in deciding whether to proceed with video court. A number of these factors are of critical importance to the defense:
(f) Whether a physical liberty or other fundamental interest is at stake in the proceeding;
(h) Whether the participation of an individual from a remote location presents the person at the remote location in a diminished or distorted sense such that it negatively reflects upon the individual at the remote location to persons present in the courtroom;
(i) Whether the use of videoconferencing diminishes or detracts from the dignity, solemnity, and formality of the proceeding so as to undermine the integrity, fairness, and effectiveness of the proceeding;
(k) Waivers and stipulations of the parties offered pursuant to section 885.62.11
Wis. Stat. section 885.60 specifically addresses criminal proceedings, and states that:
a circuit court may, on its own motion or at the request of any party, in any criminal case … permit the use of videoconferencing technology in any pre-trial, trial or fact-finding, or post-trial proceeding.12
However, section 885.60(2)(a) limits this power, by stating that “a defendant in a criminal case … is entitled to be physically present in the courtroom at all trials and sentencing or dispositional hearings.”13 Furthermore, if a defendant objects to appearing by video for any proceeding they are entitled to be physically present for, the court must sustain the objection.14
Finally, Wis. Stat. section 885.62 states that, although all these standards are required for video court, parties may waive these standards or may stipulate to any different or modified procedure approved by the court.
Now that we are have the legal framework that governs video court, I will set up a hypothetical case to demonstrate what to consider when your client is scheduled for video court.
Considerations: When Your Client Is Scheduled for a Video Hearing
The first thing you must consider is what kind of proceeding is it. If it is a non-evidentiary hearing, such as a bond motion or a scheduling hearing, it is very likely video court will proceed as scheduled. Courts have strong statutory authority to proceed by video, and these types of hearings do not give your client a right to appear in person.
However, if you want to object, consider issues such as the court not meeting the technical operating requirements, like not offering a private communication method with your client. For a bond hearing, you could claim that physical liberty is at stake. It will come down to the judge’s discretion – and they have strong motivation to keep their court moving with video.
If the hearing falls under Wis. Stat. section 971.04, such as a plea/sentencing hearing, since the client has a right to be present, you and your client will need to decide if you will invoke the right to appear in person or waive this right. In the discussion with your client, be sure to cover a couple of very important issues
First, make sure your client knows that if they want to have a physical hearing, it is very likely that, given the current COVID-19 situation, they may not get such a hearing anytime soon. If the client is not in custody, this may not be an important factor, but if the client is in custody, any delay means they have to continue to remain incarcerated. This could essentially force a client to agree to video court if they want to have the hearing now, rather than later.
Second, make sure that the client understands the format of the hearing and how that may affect your ability represent them. For instance, if all parties are appearing remotely, not being physically together with your client could prevent confidential communication during the hearing. It could also mean that friends and family that want to “attend” the hearing will not be able to unless they access to the video platform.
Most of all, confirm that both you and your client feel comfortable with the way the hearing will be held.
If your client decides to appear in person, you should immediately file an objection to the video hearing. Make sure to remind the court that, under Wis. Stat. section 885.60, since your client has the right to be present, the court must sustain your objection. Because courts have been given authority to hold video court, and a defendant can waive their right to be present, the burden to contest video court falls upon the defense – so this objection is critical to preserve the client’s right.
On the other hand, if your client decides to proceed with video court, you will need to make sure that the client has clearly waived their right to be present. For “CYA” purposes, you may want to have some record that the client agreed to waive this right.
Another essential component will be to make sure that, at the very beginning of the hearing, the court gives a proper colloquy with the client to show that rights have been waived knowingly, voluntarily and intelligently. Just in case, always consider that if the hearing is not going well because of the fact that it is by video, you or your client should consider asking that the hearing end and be rescheduled as a physical hearing.
A Growing Trend
All signs point to the trend for video court continuing to grow, even when the COVID-19 outbreak is behind us. Beyond just social distancing, video court can be very beneficial, in that it can be efficient both economically and timewise. It can also help parties (including attorneys) who are located far from the court to appear virtually.
However, we should always be wary when any new technological advance can diminish our clients’ right to have their day in court in a fair and just criminal system.
1 State v. Soto, 2012 WI 93, ¶ 50.
2 Wis. Stat. section 971.04(1).
3 State v. Alexander, 2013 WI 70, ¶ 20.
4 Wis. Stat. section 967.08.(1).
5 Wis. Stat. section 967.08(2).
6 Wis. Stat. section 967.08(3).
7 State v. Vennemann, 180 Wis. 2d 81, 94 (1993).
8 Para. (a) and (b).
9 Para. (e).
10 Para. (g).
11 Wis. Stat. section 885.56(1).
12 Wis. Stat. section 885.60(1).
13 Wis. Stat. section 885.60(2)(a).
14 Para. (d).