Legal, Technical Dangers of Moving Criminal Courts Online

Our lives are no longer rapidly changing; they have changed. Typical events that used to be shared in person now all happen on a screen. When it comes to online representation, and how proceedings are now handled via Zoom, certain things are lost and any issue is magnified tenfold when it comes to virtual court hearings.

As an attorney in a small law practice, I’ve found that proper legal representation requires a bit of intimacy, from both attorney and defendant. This new Zoom normal has created a range of problems that go beyond simple embarrassments and misunderstandings—they are potentially unconstitutional and illegal.

The technologies we have, if used inappropriately, can worsen any existing dynamics that favor prosecution. Worst of all, we could see a rise in interaction that punishes defendants with unfair prejudice and cause unnecessary frustrations for the defendant’s attorney. It’s also difficult, to say the least, to monitor court hearings. In some cases it’s impossible. These remote court hearings rely on sitting volunteers to take notes in open court with transparency and accountability.

The switch to online has led to a series of challenges for both the integrity of the court and the legal practitioner. Casual interruptions, while funny or embarrassing on a conference Zoom call, are potentially devastating for a defendant, and create additional problems that smaller law firms are having trouble handling. Jurors can disappear off-screen, external sounds can distract the court, and technical issues such as muting a microphone can cause serious problems. No one wants to see a shirtless lawyer or a hear a barking dog.

The rush from in-person to online is where the most mistakes can happen, especially during trials in state courts. Courts may overlook bodies of evidence shown in virtual hearings, which could cause potential constitutional violations or worsen the outcomes for defendants. Previous efforts to grant video during hearings have left attorneys and defendants without their right to speak.

Also, human beings simply find in-person accounts and testimony more believable than screen-based counterparts; many find the constant need for Zoom calls to be exhausting, which further compounds the stresses of both defendant and attorney. The virtual space makes it harder to discern non-verbal and even verbal cues, and some conferencing technology can incidentally alter voices or misrepresent the emotion being conveyed.

Tips for Working With Zoon

In working with remote proceedings, you cannot merely hand over documents, so having a well thought-out index and exhibits labeled prior to the call becomes even more important, especially in the context of using proper rules of evidence.

Judges generally do not have much experience with this trial method, which further exacerbates the need for organization. It would not benefit you to annoy the most important person in the courtroom by fumbling with exhibits or questions. It is imperative that you maintain a steady flow of action, and that you’re certain the witnesses are well prepared and ready to go.

When I’m speaking I typically turn off my video entirely. This helps highlight witness demeanor, since in Zoom trials it’s often difficult to fully perceive body language. It is the key point of any trial that you see that the witness’ body matches their story. With screen distractions it becomes more difficult for people to focus on the task at hand.

In trials where witness credibility is key, I am inclined to wait until we can have an in-person trial again. This might be frustrating for clients since they have to wait longer but there is simply no substitute for watching a person directly.

Constitutional Issues

Constitutional law holds that courts must always provide fair opportunities for defendants to present their defenses in any criminal trial. Social distancing has increased the demand on both counsel and defendant to have access to more expensive technologies, including a steady internet connection. Once again, this presents issues for smaller firms.

These demands can be viewed as being against the constitutional principle of fair and legal representation. Without being provided pre-paid data or technology, the reliance on virtual hearings will disproportionately affect the poor, as well as anyone living in rural parts of the country that make internet access a more difficult thing to acquire.

All of these concerns should give us pause. Public access to courts is more important during a time of disaster and unrest than at any other time. Virtual hearings can never be considered the new normal until equitable safeguards are provided for all defendants, the same as if they were in the court room.

Right now, there is little choice in the matter, as court administrators and judges have had to close courthouses under state orders in an effort to slow Covid-19. Adapting quickly to online platforms has been integral to the shift in operations for our country, and despite the technical problems, the courts have adapted.

However, efficiency is not always the best course of action, especially when it comes to due representation of the defendant and the ease of practice by the attorney. For now the Zoom cases should be monitored with utmost of caution.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Jarrod Hays is the founder of Skyview Law, a family law firm in Richland, Wash.