EXTERNAL MESSAGE
While I respect the need to act in the interests of individual clients, and recognize that every client’s needs are different, I would urge that everyone in this community be circumspect about the use of video conferencing for evidentiary hearings in post-conviciton cases. Yes, it may be convenient for the parties. And yes, certain experts may be able to testify via zoom, but this is a huge can of worms that I fear will ultimately negatively impact other clients. And to the extent that this technology is embraced in particular cases where it’s less problematic, I worry that this will cement the practice in cases where it is deeply problematic.
I do not mean this email as a criticism of any particular decision to proceed with zoom or another video conferencing program for a hearing, if it’s in a specific client’s best interests; rather, I just want to offer some of my concerns about this development generally in the contested witness hearing context (as opposed to the negotiated settlement, waiver, and getting-people-out-of-jail contexts).
This is a major issue right now in Texas, where the court system has issued an order permitting the 3000 trial courts in the state to conduct everything except for jury trials via Zoom.
Here are some of the issues I see with video conferencing in the PC context:
- No confidentiality. The moderator of a zoom call (the court) can monitor, listen and record all supposedly private side channels (such as hypothetical ones that would involve attorney-client communication). Depending on your rules of appellate procedure, recordings of any proceeding may become part of the court record.
- Only some aspects of lawyering can be accomplished via video. Competent investigation cannot be done presently, and cannot be done via zoom or phone. The Guidelines require investigation, witness-interviewing to be done in person. The same, ideally, goes for much pre-testimony hearing prep. These standards do not go away with the declaration of a disaster. In our cases, we’ve taken the position that investigation is inseparable from lawyering, and while we’re unable to conduct in-person field investigation on our cases, our clients are effectively without counsel (or, at least, conflict-free counsel).
- Clients with intellectual disability, mental illnesses, and non-English speakers will be particularly affected. These clients are disadvantaged in the criminal justice system as it generally operates, but could hardly be expected to be competent to consult with or assist counsel (and/or interpreters) who are not present, or to follow the testimony of witnesses they don't see. Will they even be able to navigate when they are speaking confidentially to their lawyer? And those clients cannot be visited before hearings because there is no visitation, and often would not fully comprehend communications in writing.
- Access to Courts. Zoom and other video conferencing software require a high speed internet connection, a computer, and a webcam. 30% of Texans lack high speed internet, and I suspect the percentage is similar in other states. Does the public’s access to courts and ability to participate in their case require that they risk the safety of themselves and their community by travelling to a central location where internet, computer and webcam access is available in order to participate? Would it require that they purchase the computer, internet access, etc. as the cost of contesting their case? Internet access and computer equipment seems like an entry fee to the courthouse, akin to a poll tax.
- Compulsory Process. What about witnesses? And obtaining documentary evidence? Our clients have a right to compulsory process. How does this work when witnesses have to appear by video, if at all? Would clients have a right to only call witnesses that have computers and internet at home? Would the court system provide witnesses equipment? Or would the right to compulsory process be burdened by forcing the defense/petitioner to bear that responsibility? How do we—or anyone possibly call witnesses by video when we cannot serve them or come near them? What if the witnesses don’t have the right equipment, computers, webcams, high speed internet? What about witnesses who we can’t really serve under the present circumstances (e.g., if you only know a work address and have no idea where they are being quarantined, and they don’t have an email)?
- Uncontrolled circumstances of witness testimony. Another problem with having witnesses testifying from remote locations is that you have them testifying from remote locations under uncontrolled circumstances. For adverse witnesses, how can we be satisfied that there was no one in the background intimidating them or coaching their testimony? Or that they are not reading from a “cheat sheet” in a separate computer window, or researching the issue on the internet as they testified? One of the often forgotten beneficent aspects of the courtroom is that it’s a controlled environment where you can control for external influences and taint. That’d be impossible with witnesses testifying from their homes or remote locations.
We have lots of evidentiary hearings lined up. And the chance is non-negligible that we’ll be ordered to proceed via zoom in the next few months. We’re trying to hold the line as best as we can. What we don’t want is for a court to say that we’re going to have a video hearing where we can present whatever we want, which, under the present circumstances, would limit us to basically the pre-pandemic evidentiary picture and pleading-level declarations to the detriment of live testimony and an evidentiary hearing informed and bolstered by ongoing, in-person investigation.
Benjamin B. Wolff
Director, Office of Capital and Forensic Writs
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