Videoconferencing in Courts Shows Potential...and Possible Problems

Last March, Judge Edward Not-tingham (D. Colo.) held a jury trial that reached all the way to Illinois. While in a Colorado federal prison, a prisoner filed a civil rights case, but between filing and trial he was transferred to a correctional facility in Illinois. When it came time to hear the case, Nottingham had to decide whe-ther to transport a prisoner more than 800 miles, or conduct the proceedings by videoconference. Although the prisoner initially objected, videoconferencing won. Lawyers, judge, jury, and most witnesses convened in Denver, while the prisoner sat in Marion, Illinois.

"It worked extremely well," said Nottingham. "The courtroom is set up to give multiple views of the overall courtroom. I can adjust the view so that the prisoner sees all the participants. Conversely, the jury can at all times watch the prisoner on the courtroom screens. If another prisoner is testifying by video, the screen can be split so the jury can watch both the prisoner and the witness."

The defendant was sworn in by the clerk of court, just as though he were in the courtroom, and he and his lawyers conferred privately by telephone. "The jurors had no complaints conducting the trial this way," said Nottingham, "and even the defendant volunteered that he was fairly treated."

The use of videoconferencing in prisoner civil rights proceedings was authorized by Congress in the Prison Litigation Reform Act. The Judicial Conference also has encouraged courts to use videocon-ferencing in certain proceedings, and currently 100 federal court sites make use of the technology.

David Maland, clerk of court for the Eastern District of Texas, believes his district was the first federal court in the country to video-conference prisoner civil rights proceedings. Said Maland, "With the help of the Administrative Office, we’ve tied into the state’s prison video network, which connects our courthouses with many of the Texas prisons. In the courthouses, our video rooms are equipped with a camera, a widescreen television, and a flag and district court seal for the background to make the room look more like a courtroom."

Videoconferencing has been used in a number of court proceedings, including administrative matters; various pretrial, civil and criminal proceedings; sentencings; settlement conferences; witness appearances in trials; arraignments; bankruptcy hearings; and appellate oral arguments, particularly where compelling geographic and logistical conditions exist. According to Maland, the Eastern District of Texas also uses videoconferencing for administrative meetings and law clerk interviews. Said Maland, "For a district with lots of miles between courthouses, we wouldn’t be as strong a court without videoconferencing."

Magistrate Judge Lorenzo F. Garcia (D. NM), whose court in Albuquerque has seen its criminal caseload increase significantly, favors videoconferencing, especially for arraignments. He notes that in New Mexico a number of defendants are simply passing through the state when they are arrested and bringing them back to court for an arraignment can result in unnecessary costs.

Although there have been concerns about the use of videocon-ferencing in certain criminal proceedings, recent changes in the criminal rules are intended to clarify use.

At its September 2001 meeting, the Judicial Conference voted to amend Rules 5, 10, and 43 of the Federal Rules of Criminal Procedure. Changes to these Rules would permit defendants’ initial appearances to be conducted by video-teleconferencing with the defendant’s consent, instead of requiring their physical presence. Rule 5 governs the conduct of initial appearance, Rule 10 governs arraignment proceedings, and Rule 43 deals with the defendant’s presence at these proceedings. Under current rules, some federal courts took the position that the defendant could waive the right to be present at a preliminary proceeding, while other courts questioned whether the defendant could waive this right. Making it clear in the rules that the procedure is authorized would eliminate any rule-based impediment.

The rules changes have been transmitted to the Supreme Court, which by statute must send the proposed amendments to Congress by May 1 of the year in which the amendments are to take effect. If Congress does not enact legislation to reject, modify, or defer the rules, they take effect as a matter of law on December 1, 2002.

The Conference Court Administration and Case Management Committee reviewed the merits of using videoconferencing in court proceedings and found that a potential for savings in personnel time and travel costs existed that can outweigh the cost of purchase and operation of videoconferencing systems when used in prisoner civil rights proceedings. In support of this observation, the Committee, in collaboration with the Conference Automation and Technology Committee, established the Prisoner Civil Rights Videoconferencing Project, which analyzed courts’ use of videoconferencing technology for prisoner proceedings. Between 1996 and 2001, approximately 58 video-conferencing sites within the district courts were funded under this project.

The Eastern District of Texas and the Central District of Illinois were among the first courts to receive funding. Magistrate Judge Judith Guthrie uses videoconferencing extensively for Spears hearings at the 50 plus prisons in the Eastern District of Texas. "I preferred face to face," said Guthrie, "but the video-conferencing saves me an hour’s drive each month to the prison at Tyler, Texas. It saves the prison time in transporting prisoners, and it eliminates security concerns." Guthrie also uses videoconferencing to handle some criminal cases in the courthouse in Lufkin, Texas, nearly two hours away by car.

The Central District of Illinois began videoconferencing prisoner rights proceedings in the mid-1990s under then Chief Judge Harold Baker, and has worked closely with the Illinois State Department of Corrections.

"About five years ago, we were in the process of setting up videoconferencing to handle civil proceedings," said Clerk of Court Jack Waters, "while the state was also putting videoconferencing in most prisons. Since then, we’ve conducted most of our prisoner rights hearings and some prisoner civil trials using videoconferencing." In trials, however, the district always brings the prisoner/plaintiff to the courtroom. Only correctional employees and witnesses testify by videoconference. But even this saves time and money.

"We had one trial in Peoria with six death row inmates as witnesses," said Waters. "Without videoconferencing, four guards would have had to accompany each inmate. From a security standpoint, we’re rather have them testify from prison."

Judge Michael M. Mihm (C.D. Ill.) uses videoconferencing frequently and conducted the first videoconferenced trial in Illinois in 1996. "If an event happened today in Moline Correctional Facility, by the time it came to trial, witnesses could be scattered throughout the state prison system," said Mihm. "Video-conferencing means people don’t have to take a whole day to travel, and for prisoners, we don’t have security and transportation concerns." But that doesn’t mean Mihm and his fellow judges aren’t concerned about the videoconferencing process.

The new Director of the U.S. Marshals Service, Benigno G. Reyna, visited the Administrative Office last month to meet AO Director Leonidas Ralph Mecham and to discuss the needs of the federal courts, including additional financial and human resources for the USMS. The USMS provides protective services to the federal courts, among many other duties. Participating in the meeting were, left to right, Dennis Chapas, head of the Court Security Office at the Administrative Office; Sylvester Jones, USMS Assistant Director of the Judicial Security Division; Judge Jane Roth (3rd Cir.), chair of the Judicial Conference Committee on Security and Facilities; USMS Director Reyna; Director Mecham; and Ross Eisenman, AO Assistant Director for Facilities and Security.

"All of us have asked how video-conferencing affects the fact-finding ability of the jury or judge to assess the credibility of witnesses," said Mihm. He routinely asks jury members, following a verdict, to comment on the quality of the videoconferencing technology, particularly if they thought it influenced their ability to assess the credibility of the witnesses who testified by video-conference rather than live in the courtroom. "In all the trials I’ve had, there have been only one or two jurors who answered that the videoconferencing made the process different." Despite this, said Mihm, "Jurors never want parties in a case to testify by this process. They want to watch them, and not just when they’re testifying."

Videoconferencing is, according to the Committee on Court Administration and Case Management, "an evolving technology that offers many potential uses to the federal courts." And while it is not intended to replace a judge or party under normal circumstances, it is a way to "enhance and supplement the services that the court provides to the public when special conditions would otherwise cause difficulties."

It may save money and travel time, and allay some security concerns, but videoconferencing also raises questions about its appropriate use. Can the credibility of a witness be assessed accurately in a videoconference? Does videoconferencing affect the solemnity of a court appearance? Can jurors judge a defendant fairly when his or her presence in a courtroom is a video image? Should an attorney have to choose between being in court, or being at the prison with his or her client? And how does this affect the attorney/client relationship? These are questions that courts will continue to struggle with as videoconferencing expands.