Virtual Criminal Courts
Criminal courtrooms are among many workplaces to shut down and adopt virtual operations in response to the coronavirus pandemic. As criminal courts around the United States suspended in-person proceedings, virtual hearings, where parties appear through videoconference or teleconference technology, have allowed courts to remain in session while reducing the danger to public health. Courts at all levels, from small municipal courts to the U.S. Supreme Court, have been hearing arguments remotely. In 38 states, as well as the District of Columbia and Puerto Rico, courts have either mandated or encouraged the use of virtual hearings when appropriate. Federal courts have been authorized through the CARES Act to conduct civil, and certain criminal proceedings, with the consent of the defendant, using video or telephone conferencing.
These virtual criminal proceedings have not only raised important questions regarding fairness and constitutional rights in critical stages of criminal proceedings, but also questions regarding the extent to which in-person court appearances in preliminary or minor matters were so often required in the past. The answers to those questions differ depending upon which stage of the criminal process is virtual: probable cause hearings, magistration hearings, first appearances, grand juries, pre-trial hearings, trials, and appellate and post-conviction hearings are differently affected by virtual appearances. Different criminal-procedure and constitutional rights are at stake, depending on the stage of a criminal case. At one extreme, a wide range of constitutional rights are implicated at a criminal trial; and for that reason, no virtual felony trial has been conducted. At the other, at least one misdemeanor trial and several pre-trial proceedings, as well as appellate and post-conviction proceedings, have been conducted virtually. To be sure, trials are less common, as compared with proceedings like first appearances and plea colloquies, which consist of the bulk of caseloads. However, those early-stage criminal proceedings implicate important constitutional rights, such as the right to counsel during a police interrogation, and the ability to confer with counsel pre-trial.
In this Essay, we first discuss the implications of virtual criminal hearings. When a lawyer cannot be present with a client or confront witnesses in person, several constitutional criminal-procedure rights—including public trial, confrontation, right to counsel, and access to courts—are affected. Second, we examine the implications for the quality and fairness of outcomes in criminal cases. Third, we discuss the research regarding how virtual proceedings may affect outcomes in criminal proceedings.
I. Constitutional Criminal-Procedure Rights
In criminal cases, the Constitution guarantees a prompt initial appearance or arraignment before a judicial officer. The right to appear with one’s counsel applies very early in criminal cases, whether they concern a misdemeanor or felony, in which the penalty could include imprisonment. The right to counsel “attaches” at any critical stage in the process after adversary criminal proceedings begin, as the U.S. Supreme Court explained in Rothgery v. Gillespie County (2008). Importantly, one also has a right to request counsel before arrest, including at a police interrogation. Having counsel appear remotely in an interrogation room should not constitutionally suffice under the Fifth Amendment.
Virtual hearings, in some cases, have provided a way to conduct pre-trial hearings, as well as other hearings regarding emergency motions or protective orders. Since March, virtual hearings have permitted the judiciary to continue cases as court backlogs have grown and coronavirus outbreaks have proliferated in jails and prisons. Remote magistration and bail hearings have allowed lawyers to advocate for pre-trial release from jail, where defendants risk exposure to the deadly virus with every passing day. As one attorney put it, keeping the courts running through virtual hearings has been one way to combat a nationwide “inability to get people who are at risk from COVID-19 out of prison.” Nor is the use of videoconferencing novel in this context. In many jurisdictions, videoconferencing has long been used at bail hearings. In that context, videoconferencing typically follows counsel’s in-person consultation with the client to prepare for the hearing.
Similarly, in many states, local rules and statutes have long authorized remote videoconferences for first appearances or arraignments in criminal cases. However, it is not clear whether such virtual representation arrangements provide defendants with adequate legal representation. For example, one study analyzing a 2010 National Center for State Courts survey of videoconferencing found that, of the 111 courts that use videoconferencing, 41 (36.94 percent) did not provide for private communications between attorney and client. When a defendant cannot communicate privately with their attorney during a hearing or trial, the quality of legal representation is greatly diminished and his or her Sixth Amendment right to counsel should be considered to be implicated. Nor may discovery be as readily provided, where jurisdictions may have been accustomed to sharing paper records with counsel before hearings, and may not yet have electronic discovery in criminal matters.
More significant criminal proceedings, including plea hearings and sentencing hearings, are also occurring virtually, provided all parties consent. Waiting for an in-person sentencing hearing can now result in quite prolonged confinement for defendants who cannot make the imposed bail conditions. Virtual plea deals have, for example, allowed defendants in New York to reach plea deals and leave jail thanks to the suspension of a state law that requires criminal suspects to be physically present in court when they plead guilty. This includes people who were able to leave Rikers Island Jail, which was the first U.S. jail reported to have a coronavirus outbreak. Using remote hearings can thus benefit defendants who cannot afford bail by speeding up pre-trial proceedings, during and beyond the pandemic. However, the consent to such virtual hearings is not uncoerced. Defendants may face enormous pressure, not just to appear virtually, but to plead guilty rather than wait for delayed court proceedings and/or risk exposure to COVID while incarcerated. For defendants who are not detained pretrial, there may still be great pressure to resolve cases and not have expensive and intrusive conditions on release continue indefinitely. The constitutional concern regarding coercion and the policy concern regarding unfairness, should be addressed through vigorous judicial oversight.
It is not novel to conduct appellate or post-conviction arguments using videoconferencing. Appellate arguments have long been conducted remotely; the U.S. Court of Appeals for the Second Circuit, for example, has for over two decades permitted remote appearances by counsel. The U.S. Supreme Court did so for the first time during this pandemic. Parole hearings are also commonly conducted by videoconference; the lack of face-to-face hearings has been long criticized as hampering effective representation, a concern which may be exaggerated with the larger problem that the parole boards that do make discretionary decisions often consider very little evidence in so doing.
Constitutional rights largely act to prevent a criminal trial to be conducted completely remotely, although certain hybrid models may better safeguard rights. The Sixth Amendment guarantees a right to counsel at a criminal trial, and it raises substantial questions whether counsel can provide effective representation remotely. The Sixth Amendment protects, in the Confrontation Clause, the right to confront adverse witnesses, which the Supreme Court, in its ruling in Crawford v. Washington, interpreted to be a categorical rule that the defendant must be permitted to confront all “testimonial” evidence, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine such witness. The Sixth Amendment also guarantees a “speedy and public trial, by an impartial jury,” in a criminal case. The public shares that interest. Further, the defendant has Fifth and Sixth Amendment rights to testify on his or her own behalf, as a corollary to the right against self-incrimination, and a robust right to testify on one’s own behalf could be interpreted to require an in-person opportunity to do so. Each of those constitutional rights may be violated by a remote proceeding.
In United States v. Cohn, not a case about virtual trials, but rather bench trials, Judge Gary R. Brown in the Eastern District of New York set out reasons that would act to bar a virtual proceeding. In the bench trial context, the judge ruled:
As a result [of the epidemic], at this writing, despite significant effort, research and investment by the Court, this district has not held a jury trial since March of this year, and in-person proceedings have been limited, although the Court has been gradually expanding its operations.
The judge ruled that a bench trial could be conducted in a case, where the trial had been pending for over a year, when the defendant consented to a bench trial, but where the Government insisted on a jury trial. The judge noted, “[w]hile the Federal Rules of Criminal Procedure require the Government’s consent, in extraordinary situations, the Court is empowered to conduct a bench trial upon the defendant’s waiver even over the Government’s objection when required by the interests of justice.” The judge noted the difficulty of assuring that a jury trial could occur within any “ascertainable time frame,” and that, given the defendants “age and health profile,” a jury trial raised questions of whether the defendant’s right to testify in his own defense could be affected. The judge also described the challenges in conducting an in-person trial:
Current thinking suggests that the number of individuals involved in a gathering and the length of the interaction serve as multipliers of infection risk, while interpersonal distance between individuals and the use of personal protective equipment can help reduce that risk. Thus, safeguards appropriate for more common interactions—like a relatively quick retail transaction—may prove inadequate for a lengthy criminal trial. And testimony by witnesses without masks for hours at a time—the primary activity at a trial—presents unique challenges.
Despite those challenges, virtual criminal trials are largely a non-starter, unless the defendant waived each of the relevant rights (and even if that occurred public rights would still raise important questions). To be sure, hybrid models may be more feasible. During criminal trials chiefly held in person, courts have sometimes permitted the use of remote video testimony by witnesses in the past. In Maryland v. Craig (1990), Justice Sandra Day O’Connor held that the Sixth Amendment Confrontation Clause could be overridden, through the use of one-way video testimony of a remote child witness, in criminal cases. The Florida Supreme Court in Harrell v. State (1998) permitted two-way video testimony by remote witnesses in Argentina. Remote video depositions are routine in civil cases. Yet in criminal cases, remote appearances by a witness can trip a defendant’s Confrontation Clause rights. The Craig ruling pre-dated the U.S. Supreme Court’s 2004 ruling in Crawford v. Washington, which reshaped its Confrontation Clause jurisprudence. Professor Richard D. Friedman has suggested that a video deposition, wherein the witness, counsel, and the client can appear together (perhaps with the judge appearing remotely), would suffice.
The Michigan Supreme Court in People v. Jemison ruled in March 2020 that post-Crawford, a DNA analyst could not testify in court over Skype. The court highlighted that video testimony did not allow for in-person cross-examination by counsel. The court noted that while “Crawford did not specifically overrule Craig,” that ruling “took out its legs.” The court held that “[i]n allowing this witness’s two-way, interactive video testimony over the defendant’s objection, the trial court violated the defendant’s Confrontation Clause rights.”
During the COVID pandemic, individual witnesses have been permitted to testify remotely. A federal judge in the Southern District of New York permitted a medically vulnerable witness to testify remotely from a courtroom in Dallas, noting that “there is no question that limiting the spread of COVID-19 and protecting at-risk individuals from exposure to the virus are critically important public policies” and that the witness “who is in his 70s and suffers from [Redacted]” was “at heightened risk of dangerous complications should he contract COVID-19,” and where testifying in New York “would require boarding a plane and spending at least two weeks in New York City.” That court found that under Crawford, a two-way video conferencing “preserve[s] the face-to-face confrontation” required by the Sixth Amendment. In contrast, a federal district court in Montana rejected a motion to allow video testimony from two out-of-state witnesses, suggesting car travel was a reasonable alternative.
In such circumstances, the jury was present to deliberate in person. Whether virtual jury deliberation satisfies the right to a jury trial in a criminal case is quite doubtful. A few courts have started to experiment with virtual juries: A Texas court held a virtual traffic case on Zoom. In that misdemeanor case, a juror left the Zoom call for seven minutes. Arizona approved virtual jury selection. A pilot program to test virtual grand juries launched in New Jersey’s Bergen and Mercer Counties in May and has already returned dozens of indictments. Critics both on the prosecution and defense have argued that virtual grand juries are unfair to defendants, with one attorney calling them “unambiguously unconstitutional,” and that they risk breaching grand jury secrecy. Proponents argue that the program responds to the courts’ “extraordinary responsibility to move the wheels of justice” for defendants and victims alike.
None of these experiments have involved virtual criminal trials (apart from the traffic case), which would implicate the Fifth Amendment, Sixth Amendment, as well as Fourteenth Amendment Due Process rights. A New York case resulted in a mistrial, when defense counsel self-quarantined, due to COVID, and tried to represent the defendant by phone. Counsel, overcome with coughing, was unable to proceed.
II. Access to the Virtual Courtroom
While the judicial efficiency arguments certainly make sense, and criminal dockets are languishing, proponents of virtual hearings also argue that they can, in some respects, improve defendant access to the courtroom. In rural and urban areas, traveling to court proceedings can be a great burden. Participants no longer have to take time off work and travel for hours, or obtain public transportation to appear in court. A virtual appearance may be less intimidating than an in-court appearance for some. Thus, for some, the change has been welcomed as an “opportunity to work smarter” for those who consider many routine and non-trial court appearances to be a poor use of time and resources. Many of these hearings can be completed in a few minutes over the phone when participants are not required to travel to the courtroom.
These advantages, in turn, could potentially lower failure-to-appear rates in pre-trial hearings; a failure to appear can result in severe consequences, including jailtime, for a person charged with a crime. Indeed, the limited data available from a handful of states suggest that virtual hearings can drastically improve court appearance rates: In New Jersey, the failure-to-appear rate dropped from 20 to 0.3 percent after the courts began conducting virtual hearings. In some parts of North Dakota, appearance rates are at roughly 100 percent, and in Michigan, failure-to-appear rates are down from 10.7 percent in April 2019 to 0.5 percent in April 2020. Of course, it is impossible to tell how much of these statistics can be attributed to the switch to virtual hearings, and how much of it to other changes brought on by the pandemic, such as changing charging patterns. Future research will need to investigate this claim systematically and on a larger scale, but it is easy to see how allowing a person to attend hearings without having to stop what they are doing, travel to the courthouse, navigate parking, and wait to be called, can improve appearance rates.
However, there are also important concerns regarding the use of virtual hearings and whether they will actually accomplish the claimed increase in access to the courtroom or fair outcomes. Indigent defendants cannot constitutionally be denied access to courts based on their income and resources—for example, being unable to afford internet access—and therefore accommodations would need to be made to facilitate such virtual appearances. An individual lacking the ability to appear at any criminal hearing (or, perhaps, much more arduously appear in person), pretrial or appellate, based on lack of income to access the appropriate technology, raises due process and equal protection concerns. Recently, the Federal Communications Commission estimated that 14 million Americans lack usable internet access, and over 25 million lack reliable, high-speed access. As the COVID-19 pandemic leads to increased unemployment and evictions, those numbers may grow further. If the claim is that virtual appearances will improve access to rural or urban indigent defendants, the digital divide should make us skeptical of the claim.
A study of virtual appearances in bail hearings in Cook County, Illinois found that access to counsel was undermined and that bail amounts were over 50 percent higher for those who appeared virtually as compared to those who appeared in person; as a result, Cook County ended the video bail hearing process. A study in Baltimore concluded that video bail hearings denied counsel the ability to confer with clients. The authors described this example:
On May 28, 2013, Torrey Johnson struggles to raise both his hands, handcuffed and seated shoulder-to-shoulder between two other defendants in the first row of the closed circuit television (“CCTV” or “videoconference”) bail review hearing room within the Baltimore Central Booking and Intake Center (“Centeral [sic] Booking”). There are two more rows of defendants behind Mr. Johnson, all in yellow jumpsuits, being watched by correctional officers. Separated by a three-foot wall, Mr. Johnson’s public defender sits out of sight from the video camera’s field of view, about ten feet away from her client. The judge quickly reads through Mr. Johnson’s rights. A representative from the Pretrial Release Services Program (“Pretrial Release”) makes a recommendation that is broadcasted meekly from the courtroom. As the judge looks down at his desk to take notes, Mr. Johnson looks down and shakes his head. He disagrees with something the Pretrial Services representative said, and starts to speak. No one seems to hear Mr. Johnson’s voice in his own bail review hearing.
Virtual court innovation could exacerbate existing class and race inequalities in the justice system. The “digital divide” between those who can easily access and use technology and those who cannot is shaped by economic, educational, and social inequalities. In the virtual courtroom, where people can be “judged not only on their clothes, but also on their surroundings or the quality of their internet connection,” this divide would disproportionately benefit defendants and law firms with high digital literacy or access to high-quality technology. For just one example of potential unfairness, in virtual eviction hearings held following the expiration of the coronavirus eviction moratorium, default judgments have been entered against tenants who failed to dial into a meeting. To ensure that all defendants have access to a fair trial, courts will need to offer appropriate accommodations for people who cannot access virtual hearings due to financial or technological limitations, just as they offer appropriate accomodations in in-person settings, such as for the disabled or to address language barriers.
III. Outcomes During Non-Public Virtual Proceedings
Court watchers who volunteer to monitor court proceedings and hold judges and prosecutors accountable have also raised concerns about access to virtual hearings, saying that they have been unable to join or understand the proceedings. Some jurisdictions—like those in San Francisco, California; Harris County, Texas; and Michigan—make livestreams of their virtual proceedings available to the public. Others, however, require court watchers to file specific requests to watch recordings of the hearings, which are not always broadcast live. In New Orleans, court access depends on the discretion of individual judges. In New York City, the public can watch virtual hearings solely from screens in courthouses. In Los Angeles and Miami, court watchers cannot access virtual hearings at all. When they are able to observe virtual hearings, court watchers report having a harder time following the proceedings, with one court watcher reporting that he was able to understand only a quarter of the communications in virtual court. Thus, virtual court proceedings can increase transparency if the streams are high quality and accessible. Other implementations, though, could lead to even worse transparency than already exists.
This loss of transparency in the virtual courtroom could lead to worse outcomes for defendants. In Waller v. Georgia (1984), the Supreme Court declared public trials essential for the accused because “the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.” Judges may change their behavior, such as by setting lower bail, when they know they are being watched and will be held accountable for their decisions. This could explain previous studies that find that video communication can lead to worse outcomes for immigrants applying for asylum or trying to avoid deportation, as well as to higher bail amounts for people who are detained.
Already, there are news reports suggesting that virtual hearings have sped up deportations during the pandemic, allowing them to take place “out of sight and with less accountability.” Without adequate attorney-client privilege and public access to hearings, the virtual criminal courtroom could also lead to faster rulings made without scrutiny. Brief and cursory hearings are undesirable whether they happen in person or virtually, but are more likely to go unnoticed in virtual courtrooms unless constitutional protections and public oversight are ensured. To protect the public’s trust and promote fair outcomes for defendants, virtual courts must provide consistent, meaningful access to court watchers as well as defendants.
IV. Research on In-Person Credibility Assessments
The quality of legal representation, jury credibility determinations, jury deliberations, and judicial decisionmaking may all be affected if video is used for proceedings, particularly where witnesses are testifying. As discussed in a recent piece by Susan Bandes and Neal Feigenson, there are many expectations people form from physical interactions that would be far more difficult in virtual meetings, such as using behavioral cues to detect deception and the importance of eye contact. Many of these assumptions are not supported by social science research. For instance, the cues laypeople widely agree upon and report using to detect deception, such as gaze aversion and nervous body language, are not related to accuracy. According to a meta-analysis of 206 papers (of over 24,000 people), people perform slightly above chance when separating truth from lies with 54 percent accuracy, although they tend to display a truth bias by more accurately identifying truths as truths (64 percent of the time) than lies as lies (47 percent of the time). Thus, behavioral and verbal cues to deception are, at best, weak—if they even useful cues at all—so a virtual format may not affect jurors’ actual ability to tell truth from lies. Despite no loss of accuracy, how jurors respond to a perceived loss of cues is unknown; they may exhibit a greater truth bias, or may just be more skeptical of any statement’s veracity.
Witnesses on the stand, however, may suffer in virtual environments. Some experts are viewed as more credible when they maintain effective eye contact. As discussed by Bandes and Feigeson, research on perceptions of a witness testifying via video are generally more negative than when they testify in person; the virtual witness is viewed as less eloquent and pleasant. Children specifically have been viewed as less attractive, intelligent, accurate, and more likely to make up a story; less emotionally engaging; less convincing; and less likeable. On the other hand, some research has not found these effects; there is, for example, no significant difference in empathy ratings for a child testifying remotely rather than in person. Also, virtual formats do not affect important outcomes like deception detection or willingness to convict a defendant.
In sum, the behavioral science research suggests that some objective aspects of virtual proceedings may be unaffected, such as detecting truthfulness, but that jurors’ subjective perceptions may be negatively influenced across the board. It is worth illustrating that little of this research has explicitly compared in-person trials to virtual trials. Perhaps with renewed interest in maintaining virtual court proceedings, more empirical work will clarify the impact of these credibility concerns. It may be these concerns are surmountable as people get used to virtual meeting platforms, while other perceptions are more resistant to adjustment.
Some glaring questions remain empirically unanswered. Research has not addressed how counsel can effectively confer with and represent clients during virtual proceedings. Nor is it clear how virtual environments will affect jury deliberation. Witness-attorney rapport during examination be hampered by lagging or poor connections, may negatively impact jurors’ understanding of the case. The virtual environment may also affect a judge’s case evaluation. While some technological innovations, such as chat rooms, may ameliorate these limitations, other issues suddenly may become extremely important, such as literacy and typing speed, and more fundamentally, basic access to technology by indigent criminal defendants. More research is necessary for definitive conclusions about the impacts of virtual hearings.
V. Lessons Going Forward
As states around the country reopen and courts begin to resume at least some in-person proceedings, whether virtual hearings will be abandoned as a temporary response to the national emergency or embraced as an unanticipated yet effective reform tool remains to be seen. Large-scale empirical data about outcomes during the move towards virtual hearings during the pandemic is not yet available, and it has been such an unusual time period that it may be difficult to assess those outcomes. Nonetheless, there already exists an abundance of arguments both for and against virtual hearings, some due to constitutional concerns, and regarding their efficacy, based on a few pilot projects aimed at testing their use systematically. Paying attention to these arguments and experiments will be crucial for those who want to understand whether, and with what restrictions, they should continue to rely on virtual hearings.
Whether virtual courtrooms will continue to be used more often in the coming years remains much less clear. Some are looking to return to “normal” as soon as possible; they consider virtual proceedings merely “the second-best option,” and worry that the loss of the “human element” in virtual settings cannot be remedied, either practically, or constitutionally, and particularly in jury trials. Nevertheless, even when the pandemic abates, large backlogs in criminal cases will continue to create pressure to expedite proceedings using virtual options.
Others consider COVID to be a “catalyst for changes that were hopefully coming anyway.” In Michigan and many other states where courts were already trying virtual civil hearings, the pandemic expanded an existing experiment. And the results of the experiment appear positive to some: In Miami Dade, Chief Judge Bertila Soto does not think they will “ever go back” to live proceedings when it comes to relatively routine matters like traffic tickets and settlement negotiations. In San Francisco, a prosecutor describes a decision to conduct most pretrial criminal proceedings electronically as one that will “benefit all of us for many years to come.” Ultimately, the court system may need to decide what it prioritizes when deciding what practices to keep and which to discard. For a judge who believes in behavior cues to deception, or victims and the public’s rights to participate in proceedings, in-person appearances offer clear advantages. On the other hand, virtual appearances can increase transparency and accessibility and decrease costs to individuals, including from transportation and disruption to employment and child care.
That these proceedings need not have been conducted in person, then raises the question whether so many minor hearings need to be conducted at all, or with the parties all present, even virtually. Perhaps scheduling or discovery conferences can be more often conducted using email, or between the parties, as in some courts, rather than compelling appearances of defendants and law enforcement. These discussions far too often view virtual proceedings from a perspective of court efficiency, and not the public interest: whether the social costs of the underlying proceedings and outcomes are just. If the burdens of conducting in-person appearances are not justified, then that begs the question whether the burdens of the underlying enforcement practices are themselves justified. Constitutional rights ensure robust process at a range of critical stages of the criminal process. If those constitutional requirements cannot be met, then charges should not be pursued.
Conclusion
Who are virtual hearings good for? Virtual hearings may help courts. They can alleviate challenges in conducting in-person proceedings during a pandemic, helpful for court administrators. To the extent that they permit adequate representation, they may help public defenders represent clients. They can assist prosecutors in managing dockets, and jail administrators in processing jail admissions and releases. Their use may moderate the costs that appearances impose in low-level matters, and may spur rethinking why so many such in-court proceedings have been demanded in the past.
However, there are good reasons why many constitutional rights do not have emergency exceptions. While criminal procedure rights may not be equally implicated by all uses of virtual proceedings, they are implicated at all stages. The implications for fairness and for constitutional rights of video proceedings have not been fully considered. Nor have many uses of virtual proceedings been developed with an eye towards preserving robust rights protections. As a new virtual criminal court landscape takes shape, researchers and practitioners must keep careful watch of the policies that are being implemented, as well as their outcomes. Different precautions must be taken in settings in which virtual hearings pose different constitutional and fairness risks. There should be consistency in the enforcement of policies and in data-collection and reporting practices.
If it is not practical to conduct an in-person proceeding, an alternative to a virtual proceeding is for judges to order that proceedings be ceased, releasing the person from confinement, dropping charges, or relying on community supervision. Some jurisdictions have done so of necessity during the pandemic, and whether that continues will also be an important subject for future study. As backlogs in courts increase, there may be additional pressure to push more cases online. This move would risk undermining a wide range of constitutional rights. Courts should proceed with caution, to ensure that virtual hearings minimize coercion and bias, and improve rather than harm access to justice. While virtual proceedings can in some respects avoid the need to conduct in-person court appearances, doing so can be an unfair and potentially quite unconstitutional makeweight, which does not heed the public safety imperative to reduce the footprint of the criminal system during a pandemic.