Videoconferencing: A Juvenile Defense Attorney's
Perspective
By William M. Binder
You enter the courtroom, sit, adjust your file and gaze up at your
client across the table - 200 miles away - on the television screen.
Welcome to the world of high-tech representation in the criminal
courts.
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Anticipating possible problems in advance allows
parties to establish ground rules that enhance videoconferencing's
efficiencies.
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Videoconferencing is used in Milwaukee Children's Court and Municipal
Court. The Municipal Court's initial appearances are held by video: The
in-custody defendant stands before a screen, is viewed by the court and
the audience, but sees only the judge. The judge questions the
defendant, pleas are entered and bail is set.
My experience with videoconferencing involved a waiver of a juvenile
extension hearing. I spoke to my client by telephone the day before the
hearing. Now we were on the record, waiving the hearing by
videoconference. I was in Milwaukee; he was at Lincoln Hills.
Prior to the videoconference, the judge and I set some ground rules
in anticipation of several possible problems. We agreed that if I needed
to discuss any point with my client before or during the hearing,
everyone in the courtroom and with my client would have to leave. The
court also deemed confidential any "private" discussions my client and I
had, and the discussions could not be used in any way by any party or
agency since the security of the transmission was in question.
Due to the delays in transmission, during the hearing it was
essential for all parties to speak slowly and clearly into the
microphones. Any fast movement blurred and froze the screen for two to
four seconds, then the picture would return live to whatever was
happening. My client also had no access to the paperwork we had in the
courtroom, and there was no way that he could examine the forms used in
the hearing. The court had to read the documents to him.
Despite some minor procedural and technical flaws, the hearing was
cost- and time-efficient. My client understood what was happening,
seemed comfortable with the experience and was impressed with the fact
he was on "TV." However, the hearing could have been a disaster had I
not prepared him the day before.
The need to maintain attorney-client confidentiality renders
videoconferences cumbersome and impractical if the courtroom must be
cleared for every question. A possible solution is to keep a telephone
with an open line next to both the defendant and counsel so that
questions can be discussed while on the record. Keeping a line open,
solely for attorney-client discussions, coupled with an order making
those conversations confidential, could eliminate the problem.
Initial appearances, bail hearings and status conferences in criminal
cases could be held easily by video. However, problems will arise if
evidentiary hearings are held via video. The defendant will not see
demonstrative evidence, diagrams or documents discussed in the courtroom
out of sight of the video camera. It is cumbersome if the client asks
questions over a phone, or worse, tries to get your attention over a
video screen to tell you about a point raised under direct or
cross-examination, within everyone's hearing. A defendant's ability to
properly assist counsel, answer and ask questions, write notes or
examine documents will be impossible if that client is not in the
courtroom.
The problems of allowing anyone to testify by video out of full sight
of the attorneys and fact finders is best illustrated by this
hypothetical question: If Captain Queeg, played by Humphrey Bogart in
The Caine Mutiny, was seen on video only from the chest up, and
the jury and attorneys could not see him rolling the metal balls in his
hand, would the verdict be different?
William M. Binder, Marquette 1989, is
a sole practitioner in Milwaukee.
Wisconsin Lawyer
