“Telejurisprudence” in the Age of Covid-19

There is no dearth of information about the impact of the COVID-19 virus and subsequent quarantine and their effects on the courts. In a recent survey from the National Judicial College, “Nearly 6 in 10 of the 867 judges who responded said their courts were down to 25 percent or less of normal. Nearly 80 percent said they were operating at 50 percent or less. Fewer than 1 in 4 said their court was operating at 50 percent or better.”  New Zealand judges persuaded the government to declare the Alcohol and Other Drug Treatment Courts as “essential” so they could continue to operate. They feared people working on their sobriety needed closer supervision than just cutting them loose for a month or two was going to provide. Other courts, such as the Superior Court in Sacramento County, California, are live streaming criminal proceedings. One thing is for sure; this crisis will forever affect how courts operate.

Judge Lisa Tremewan, Waitakere District Court, NZ

Our Experience Thus Far

Some courts, such as those in my former stomping grounds of Alameda County, California, have had video arraignments for in-custody defendants for at least 20 years. Once the inmates figured out that video arraignment saved them from rising at 5:00 am, eating a cold breakfast, having a bologna sandwich with mustard on white bread for lunch, missing a shower, and other hardships, they were quick to buy in. With the increased use of online platforms such as Zoom [1] , WebEx, and others, there is every reason to believe that multiple “routine” matters could be handled through “telejurisprudence.” First appearances; requests for continuances; pre-trials; and, other simple matters that do not require a personal appearance by counsel could easily be handled online. Progress reports, proof of insurance, proof of payment of restitution, fine receipts and other things could be handled by pro se defendants without requiring them to disrupt their workday, get childcare, arrange transportation and confront other struggles that are all too common when they have to appear in court. Appearing by smart phone could become routine and accepted.

Judge Tremewan holding court on-line

Virtual Courtroom Standards and Guidelines

As you may imagine, there are concerns about telejurisprudence from having a private chatroom for attorneys to meet with their clients to the public’s and press access to the proceedings. Additional concerns include making a record of the proceedings for appellate purposes and procedural matters such as making sure it is clear who is speaking. It was late March 2020 when Michigan Governor Gretchen Whitmer issued her “Stay Home, Stay Safe” Executive Order. Two weeks later, the Virtual Courtroom Task Force issued “Michigan Trial Courts Virtual Courtroom Standards and Guidelines. The document is set up in categories with Standards, Guidelines and Best Practices for each. The categories are:

• Virtual Hearings
• Attorney/Client Communication
• Public and Press Access
• Making a Clear Record
• Logging Requirements
• Exhibits
• Providing Zoom Meeting Information to Parties
• Business Processes in Support of Virtual Courtroom

It is a thoughtful, thorough and a very useful document that could be used as a model throughout the states.

Webcam in front of computer screen

Does Telejurisprudence have Limitations?

Telejurisprudence however, has its limits. It would be hard to imagine a trial proceeding via teleconference although last week Michigan began a “remote jury trial pilot project.”  “The pilot courts will test and evaluate innovative jury procedures to allow for appropriate social distancing while also protecting the parties’ Constitutional and statutory rights.”

A criminal felony preliminary hearing requires witnesses, and most would be reluctant to Zoom it. However, California Penal Code Section 872 enacted in 1990, allows preliminary hearings to be conducted through the testimony of a police officer with five years training or who is POST trained so long as the officer has experience investigating and reporting cases. Thus, prelims can proceed with the arresting officer essentially reading the police report. Could that be done adequately by teleconference? Arguably, yes. What about criminal law and motion matters that require witnesses such as motions to suppress? Would there be any difference if the motion relied on lay witnesses (such as eyewitnesses) vs. “professional witnesses,” that is, police officers? On the civil side, trials by teleconference – no. Law and motion like motions to compel discovery? Maybe. How about Settlement Conferences? Would as many cases be resolved without in-person intervention by the judge?

We Are Forever Changed

This pandemic is unprecedented in many ways and not the least of which is the ways in which it affects the entire justice system. What will we learn from this and what long-term, systemic changes will be made? That remains to be seen.

Resources

Michigan’s Virtual Court Resources 

National Center for State Courts’ Resources

Series of webinars on Covid-19 from the National Judicial College

Judicial Information Sources