By Gretchen Schuldt
A bill in the State Senate that would greatly expand phone and audiovisual proceedings in criminal cases must preserve a defendant's right to reject such e-hearings in favor of "critical in-person hearings," WJI President Craig Johnson told a Senate Committee.
"Without preserving this 'opt-out' right for defendants (in criminal cases), video hearings likely will become more and more common, thus creating a culture in which defendants as well as witnesses and counsel will be expected to appear, as they have for much of the last year, via 'Zoom' and other remote technology for important fact-finding hearings," he told the Judiciary and Public Safety Committee in testimony submitted for a public hearing.
Senate Bill 219 would allow "any criminal proceeding" to be conducted over the phone or by audiovisual means "unless good cause to the contrary is shown." Currently, the law limits the proceedings that can be conducted electronically.
There are many defendants who face challenges with technology, Johnson said.
"An elderly person or someone with cognitive limitations may not understand how to use a smart phone or computer," he said. "Someone who is poor or lives in an area without good internet or wireless service may have trouble with this technology. If a person prefers to appear in person, in a courtroom, with their lawyer, before a judge, and see and hear the proceedings, including witnesses, LIVE, they should have the opportunity and right to do so."
Low-income and rural households may have limited access to the Internet or slower speeds, he said.
"We have seen this reflected in concerns about equal access to online education during the last year of this pandemic," Johnson said. "Increasing reliance on video conferencing in court proceedings can exacerbate this digital divide."
The Wisconsin Supreme Court, in State v. Soto, discussed the problems that could arise with video proceedings, Johnson said.
"The opinion notes that the physical presence in a courtroom provides a setting that emphasizes the solemnity and gravity of the proceeding," he said. "The physical courtroom setting also effectively displays the power and importance of the state, as personified by the circuit court judge."
"Presentation of live witness testimony allows parties, counsel, and the court to properly evaluate witness demeanor and a witness’s ability to accurately recall that to which they are testifying," Johnson said. "Wisconsin criminal jury instruction 300 discusses how to determine the credibility of a witness. It specifically indicates that weight should be given to the witness’s conduct, appearance, and demeanor on the stand. There is a concern with videoconferencing when defendants and their counsel, due to technical or other issues, cannot adequately hear, see, and critically review testimony and exhibits when they are presented remotely."
The State Public Defender's Office cited similar concerns about the bill, which would also expand electronic hearings in juvenile court.
"Any expansion on the use of videoconferencing technology in critical proceedings must be accompanied with a provision allowing a juvenile or defendant the unqualified right to demand that the proceeding be held in person," the SPD said in testimony.
"Replacing in-person appearances with videoconferencing appearances may frustrate the ultimate goals of juvenile court, given the unique circumstances of juveniles," SPD said. "For example, video court may make it more difficult for juveniles to fully grasp the severity of the offense and the solemnity of the proceedings."
In addition, state law presumes confidentiality of juvenile proceedings and records, SPD said.
"Videoconferencing compromises confidentiality, if for no other reason than the judge lacks the control over the physical space from which a juvenile appears. By broadly allowing the use of videoconferencing in juvenile proceedings, it will be difficult to abide by the intent of the statute with such strong aims at preserving confidentiality that the term is mentioned more than 40 times in the chapter."
"Videoconferencing compromises confidentiality, if for no other reason than the judge lacks the control over the physical space from which a juvenile appears." – State Public Defender's Office
The Wisconsin Department of Children and Families also expressed concerns about the bill.
"When youth appear in court, they may struggle to differentiate between the differing roles held by each of the adults in the courtroom, grasp the purpose of each stage of the proceedings, or appreciate the significance of their decision to waive a particular right. Effective assistance of counsel requires the ability for confidential and privileged attorney-client communication to occur and – for youth in particular – the ability for ongoing attorney-client communication to occur throughout the duration of a court hearing," the agency said in testimony.
In addition, DCF said, "Significant aspects of rapport building between a youth, judge, and other system actors take place before, during, and after an in-person hearing. This can have a significant impact on a youth's understanding and trust in the system and the goals of that system. A youth’s in-person interactions with the court also help to preserve the fairness and solemnity of the court process."
Juveniles should be allowed to opt out of remote hearings, DCF said.
All three organizations offering testimony said virtual proceedings could be advantageous in some circumstances.
State Sen. Andre Jacque (R-DePere), author of the bill, told the committee that it would reduce transportation costs and "allow for defendants to enter pleas, accept plea deals, receive sentencing, deal with interstate detainer proceedings, and allow individuals to enter treatment more quickly."
The Wisconsin District Attorneys' Association registered in favor of the bill. It was the only organization to register a position.
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