Wisconsin
Lawyer
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.
by Hon. Edward E. Leineweber
Sidebar:
ore 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 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
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
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, 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
Wisconsin
Lawyer
