From Anne Skove at the least dangerous blawg, this article from the Argus Leader about how video court appearances are catching on in South Dakota.

Judges are setting bail through TV screens at local jails; lawyers are taking depositions from witnesses in different states; and clerks in Pierre are taking the official record of who is saying what in the courtrooms of surrounding counties.

The technology is saving money and time and has helped some suspects bond out of jail faster. But some worry that turning defendants into faces on a TV screen is hurting the justice system.

The use of videoconferencing has been going on for years now, and has become an increasing important tool for court administrators to get bodies before the judge without actually needing to move bodies.  But it implicates a host of concerns as well, and these can’t be forgotten in the process.

Obviously, if defendants can appear in court by videoconference, it saves the system the cost of transporting defendants from jail to courthouse and back.  Proceedings can be handled more expeditiously, resulting in a more effective use of court time as well.  It’s a logistical boon the administrators.

This is obvious in less populous states like South Dakota, but is surprisingly true in densely populated areas like New York City as well.  Defendants are woken at 5 a.m. to make the trip from Rikers Island to 100 Centre Street for an appearance, and hopefully show up in the courtroom holding cells by 10 a.m.  Often, they aren’t there until much later in the day, especially if something goes awry along the way.

For defendants, this trip is long, tedious and often rather pointless, when it’s a routine court appearance and nothing whatsoever happens for any number of reasons.  Defendants grow tired of the early wake-up and lousy cheese sandwich they get to eat for yet another court appearance that goes nowhere.  But then, it’s never clear when a court appearance will result in significant action, as opposed to a 3 second “people not ready” or “no grand jury action” announcement.

But when a defendant remains at the jailhouse and his attorney stands in the courtroom, there are issues to be considered.  As noted in the article, the defendant is merely a face on the screen, not a living human being in the same room as the judge.  Most judges will recognize this, and not be affected.  To the extent that they fail to see defendants are human beings in the first place, even when they are standing before them, it won’t make them less of a person.

The lawyer, however, cannot confer during the appearance with his client, the whispers that usually occur and the personal assurance that reminds a jailed person that someone knows they exist.  The lawyer can’t feel the tug on his sleeve when the defendant has no clue what just happened to him.  Communication isn’t something done only on jail visits, but constantly.  The defendant is entitled to communicate with his lawyer, and it’s hard to do so via a videoscreen.

The defendant must also comprehend the significance of seeing the courtroom, his lawyer and the judge by way of a screen rather than in living color.  I’ve seen defendants who would know far better than to speak in open court misapprehend who can hear his utterances during a videoconference.  Think of the person screaming at the TV during a football game.  To the defendant in jail, this is a television show.  Some don’t realize that they can be heard in the courtroom.  By everybody.  They think they’re talking to themselves.  Surprise!

Anne reminded me of some additional problems when dealing with mental health proceedings, including people whose psyche is fragile to begin with having the TV talk back to them.  This can really mess up the head of a person whose grasp of reality is shaky in the first place.  As we know, criminal defendants frequently have mental health issues, ranging from psychoses to post-trauma issues to low intelligence.  All of these problems are exacerbated by use of videoconferencing.

While the benefits of video are clear for court administrators, and frequently aid the defendants as well, it’s critical for the criminal defense lawyer to remember that it comes at a price.  It’s our responsibility to make certain that the defendant’s rights, ability to communicate and understanding of the technology are clear and intact.  If there is an issue of whether a physical appearance in court is necessary to preserve the defendant’s rights, then it is our duty to make sure that our client is standing next to us. 

Don’t expect court administrators to put our client’s right first.  That’s our job.