Remote Criminal Justice
Texas Tech L. Rev. (2021 Forthcoming)
76 Pages Posted: 8 Oct 2020 Last revised: 27 Oct 2020
Date Written: September 24, 2020
The coronavirus pandemic has forced courts to innovate to provide criminal justice while protecting public health. Many have turned to online platforms in order to conduct criminal proceedings without undue delay. The convenience of remote proceedings has led some to advocate for their expanded use after the pandemic is over. To assess the promise and peril of online criminal justice, I surveyed state and federal judges, prosecutors, and defense attorneys across Texas, where virtual proceedings have been employed for a range of criminal proceedings, starting in March 2020. The survey responses were supplemented with direct observations of remote plea hearings and the first criminal jury trial conducted via Zoom.
The survey responses paint a complicated picture. They suggest that, on the whole, online proceedings can save time and resources for the participants in criminal cases and can provide broader access to the courts for the public. Yet respondents also noted the dangers of remote justice, particularly in contested or evidentiary hearings and trials. These include the inability of the parties to present evidence and confront witnesses effectively, and the challenges of providing adequate legal assistance remotely. Respondents also expressed concern that the court’s perception of defendants may be negatively skewed by technology and that indigent defendants might be disproportionately harmed by the use of remote hearings. Defense attorneys were especially likely to be concerned about the use of the online format and to believe that it tends to harm their clients. Federal judges and prosecutors were also more likely than their state counterparts to be skeptical of the benefits of online criminal proceedings outside the context of the pandemic.
Based on the survey responses, an analysis of scholarship and case law, and first-hand observations of virtual criminal proceedings, the Article concludes with several recommendations about the future use of online criminal justice. It argues that states should be wary of expanding the use of remote proceedings after the pandemic is over. Online technology could be used more broadly to conduct status hearings and hearings on questions of law and to increase the frequency of attorney-client consultations. Beyond these narrow circumstances, however, remote hearings post-pandemic should be used only sparingly, as they carry too many risks to the fairness of the proceedings. If jurisdictions make the choice to use virtual proceedings in circumstances beyond status hearings and legal arguments, this should be done only after obtaining an informed and voluntary consent from the defendant, and with great care taken to reduce the risks of unfairness and unreliable results.
Keywords: remote proceedings, online proceedings, virtual proceedings, videoconferencing, criminal procedure, pandemic, survey
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