Videoconferencing in Criminal Proceedings

Videoconferencing in Criminal Proceedings

This project emerged as a priority at the Center's July 2001 Research Conference on Courtroom Technology due to: (1) the increasing use and support of videoconferencing in criminal proceedings; (2) the variations among districts and court participants in the perceived need and appropriateness of its use in criminal proceedings; and (3) the fundamental rights that may be called into question.

We are now planning how the Center will study questions raised by the use of videoconferencing in criminal proceedings. Below we provide some background information.

Background Information
In the past ten years, Congress and the Judicial Conference have taken actions that authorize and in some instances encourage the use of videoconferencing in prisoner proceedings. The 1995 and 1996 actions, in particular, led to the acquisition of videoconferencing by many districts in the ensuing years.

The Prison Litigation Reform Act of 1995 required federal courts “to the extent practicable,” to conduct prison condition pretrial proceedings “in which the prisoner's participation is required or permitted” by telephone, videoconference, or other telecommunications technology, without removing the petitioner from the prison facility.
In March 1996, the Judicial Conference authorized use of videoconferencing in prisoner civil rights pretrial proceedings. The Committee on Court Administration and Case Management and the Committee on Information Technology have established the Prisoner Civil Rights Conferencing Project, which has funded approximately 58 videoconferencing sites in the district courts between 1996 and 2001.

More recently, the Judicial Conference has considered whether the use of videoconferencing is appropriate in certain types of criminal proceedings. At its September 2001 meeting, the Judicial Conference, on the recommendation of the Advisory Committee of Criminal Rules, voted to amend Fed. R. Crim. P. 5, 10, and 43 to explicitly permit defendant's initial appearance and arraignment to be conducted by videoconferencing with the defendant's consent; these rule changes took effect on December 1, 2002.

When the Advisory Committee of Criminal Rules recommended the 2002 amendments to Fed. R. Crim. P. 5, 10, and 43, it also recommended an amendment to Fed. R. Crim. P. 26. The amendment would have permitted the court to use remote transmission of live testimony at trial if (1) the requesting party establishes exceptional circumstances for its use; (2) appropriate safeguards are used; and (3) the witness is unavailable within the meaning of Fed. R. Evid. 804(a)(4)-(5). At its September 2001 meeting, the Judicial Conference voted to approve this amendment, but the Supreme Court subsequently voted to reject it because of concerns related to the Confrontation Clause. To access the Supreme Courts opinion regarding the proposed amended Rule 26, go to the Supreme Court website (www.supremecourtus.gov). Select “opinions” and then “2001 Term Opinions Relating to Orders.” From there, select “Federal Rules of Criminal Procedure.”

The way in which videoconferencing is actually used in criminal proceedings varies from district to district, although detailed information is not available. Defendants sometimes appear by videoconference for first appearances and arraignments and for sentencing. Also, in more limited circumstances, some courts may allow prisoners to appear as witnesses in criminal trials via videoconferencing, and some courts also may allow non-inmate witnesses to appear remotely.

Defense attorneys have raised the following issues with respect to the use of videoconferencing in criminal proceedings.

When defendants appear via videoconference from a prison on arraignment, sentencing, or another matter, defense lawyers believe they need to be with the client to ensure effective attorney-client communication and thus adequate representation. Defense attorneys also think there is a need for them to be in the courtroom if the prosecutor is appearing in person; otherwise, their communication with the court is at a relative disadvantage. This, in turn, may interfere with the right to due process and adequate representation, and, on a more practical level, may result in a manpower drain if two lawyers are used instead of one.
Defense attorneys are also concerned about the possible “dehumanizing” effect of having defendants appear by videoconference from the prison facility.
Having witnesses other than those called by the defense appear via videoconference at trial may raise constitutional concerns (right to confront witnesses).

Empirical data may help policymakers evaluate these concerns and determine what action, if any, may be required. Information could be obtained, for example, on the following issues:

How, if at all, does testifying from a remote location affect a defendant's or witness's perception of the importance of the court proceeding and of testifying accurately and honestly?
How, if at all, does testifying remotely affect the clarity of witness's or defendant's testimony? How does it affect jurors' and judges' comprehension of the testimony and judgments of the witness's and defendant's credibility? What are the mediating factors? Can any negative effects be minimized with enhanced technology?
Does testifying remotely make it more difficult to control outside influences on the witness (e.g., the attorneys and the judge may not know who else is in the room or what documents and notes are available and in use)? If so, can sufficient safeguards be put into place?
How, if at all, does the use of remote witnesses affect jurors', attorneys', and parties' perceptions of the fairness and sanctity of the court process? Do these perceptions depend on the type of proceeding (e.g., pretrial versus trial, trial versus appellate, criminal versus civil) and the number and type of participants appearing remotely?