VIRTUAL AND IN-PERSON TRIALS
March 12, 2021
According to Connecticut's judicial website, jury trials are postponed through April. By the time they resume, it will have been more than a year since the last jury trial in state courts. The judicial branch claims that it is prepared to resume criminal trials in May. Criminal trials need to resume. The right to a speedy trial has already been stretched enough and many defendants are in jail waiting to try their cases. Criminal trials, whether by a jury or a judge, should be in-person for confrontation clause reasons. Virtual trials and hearings could and should continue to be viable options for non-criminal matters.
In the past month I tried two Termination of Parental Rights (TPR) cases, one virtual and one in-person. Just a few days ago I handled a motion hearing virtually. Here are my experiences.
I preferred the in-person TPR to the virtual TPR. I represented a parent and during the trial--as with most of my trials--he and I were writing notes and conferring during witness examinations. The client is often the best source of information about a case and speaking to him or her is helpful. Additionally, it is easier to show a client exhibits that are being discussed or admitted during a proceeding. Juvenile trials often involve a lot of documentary evidence. In order to confer with clients in a virtual proceeding, you could use text messaging or mute yourselves and have a phone call but that is not as readily available as having a client right there. It is also easier to meet with a client in person during a recess to continue preparation.
Witness testimony had trade-offs in both settings. The witnesses that testified in-person wore masks. The witnesses who testified virtually did not wear masks but were two-dimensional. While we did not have any major technical issues, there were some and they were inevitable. One witness in my motion hearing had trouble with her microphone which at times required her to repeat herself. There's also the possibility that a client or witness will not have reliable Internet access. For that reason, I allow clients to come to my office for virtual proceedings.
I primarily defend clients in proceedings against the State. Most of my case is cross-examination and most witnesses are adversarial to my clients. In that situation, I prefer being in a courtroom, which is a neutral location. The witness stand, bench, counsel tables and flags all show the seriousness of a court proceeding to the witness. Additionally, in most courtrooms, the witness is faces the attorneys and the parties and is next to the judge. The chair in the witness stand could feel a bit warm compared to a kitchen chair or couch in a witness's own home. At some point we might see studies comparing testimony from people in their own homes and offices to people who were in court. After more than ten years of practice and dozens of trials, I am at home in a courtroom. I'd rather cross-examine a witness in my house than theirs.
With all that said, virtual hearings are good for administrative matters and motion hearings. One reason is that witnesses, especially professionals (such as medical treatment providers) could be more available by not having to travel or wait around at court until they are called to testify. That also makes hearings easier to schedule. For motions, which often address ongoing and sometimes emergency issues, that is helpful. Additionally, while out-of-state witnesses are often beyond the reach of ordinary subpoena power, virtual testimony allows a voluntary witness to appear and help your case.
Another potential issue is distractions. You can tell in court whether a participant is paying attention. On video, you can really only see what the participant's camera picks up. From a more cynical perspective, a dishonest witness could be communicating with someone else or reading notes or cues on his or her screen. I did not suspect any of that in my proceedings but it's a very real possibility.
I am not aware of any jurisidiction conducting a virtual criminal jury trial. I am also not aware of a virtual court trial on the issue of guilt, although I wouldn't be surprised if some jurisdictions are doing virtual hearings on probation violations. The right to confrontation is one of the most important rights a criminal defendant has. In my opinion, the potential loss of liberty demands that confrontation be in-person.