Unmuted: Solutions to Safeguard Constitutional Rights in Virtual Courtrooms and How Technology Can Expand Access to Quality Counsel and Transparency in the Criminal Justice System

61 Pages Posted: 13 Aug 2020 Last revised: 22 Apr 2021

See all articles by Matt Bender

Matt Bender

University of Arkansas Law School; University of Michigan Law School

Date Written: August 12, 2020

Abstract

A defendant’s fundamental right to a public trial, and the press and community’s separate right to watch court, has been threatened by the shift to virtual hearings. These independent constitutional rights can be in harmony in some cases and clash in others. They cannot be incompatible.

Public interest in criminal justice transparency is increasingly crystallized, but courts have often become more opaque, which jeopardizes First and Sixth Amendment rights. This Article addresses the conflict and confronts a key question: how can we be assured that remote and virtual hearings like Zoom arraignments or trials guarantee the same rights as traditional court hearings? Instead of rejecting virtual criminal hearings outright, I offer new proposals for how virtual courtrooms can safeguard constitutional rights. I question the prevailing belief that criminal defendants should always reject virtual trials. Virtual trials may lead to better outcomes for some defendants than traditional trials, especially during the ongoing pandemic.

Beyond preserving rights in a virtual courtroom, the Article explores ways technology can improve the criminal justice system. Through an analysis of existing indigent defense and First Amendment scholarship, I address the myth that traditional court decorum should trump open court and virtual hearings. Judicial legitimacy and transparency may benefit when criminal cases are accessible on virtual platforms or livestreamed. Transparency can help safeguard defendants’ rights and improve indigent clients’ representation and outcomes. Instead of disrupting the courtroom—whether a hearing is virtual or traditional—convenient public access helps a community learn more about the criminal justice system and evaluate cases, judges, and attorneys.

These proposals provide a framework for virtual litigation and show how technology can be leveraged for a more equitable criminal justice system. Livestreams and virtual or remote hearings can improve the right of representation for indigent defendants by increasing access to quality counsel, reducing costs, creating a more competitive legal market, and expanding a client’s choice of attorneys.

Keywords: First Amendment, Sixth Amendment, Virtual Trials, Criminal Justice Reform, Indigent Defense, Equal Justice, Confrontation Clause, Public Defender, Mass Incarceration, Zoom, Bail Reform, Remote Hearings, Judicial Transparency, Pandemic Juror, Zoom Trial, Right to Counsel, Demeanor Evidence

Suggested Citation

Bender, Matt, Unmuted: Solutions to Safeguard Constitutional Rights in Virtual Courtrooms and How Technology Can Expand Access to Quality Counsel and Transparency in the Criminal Justice System (August 12, 2020). Matthew Bender, Unmuted: Solutions to Safeguard Constitutional Rights in Virtual Courtrooms and How Technology Can Expand Access to Counsel and Transparency in the Criminal Justice System, 66 VILL. L. REV. 1 (2021), Available at SSRN: https://ssrn.com/abstract=3672441 or http://dx.doi.org/10.2139/ssrn.3672441

Matt Bender (Contact Author)

University of Arkansas Law School ( email )

Fayetteville, AR 72701
United States

University of Michigan Law School ( email )

United States

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