As we approach the end of the year, businesses and organizations continue to address post-COVID questions and challenges. For example, what will the return-to-work process look like for employees and how will it be managed? Similarly, judges and court executives continue to deal with specific questions of court policy and procedure as they navigate the transition beyond the pandemic. One area demanding considerable focus is the role of remote proceedings for each court.
During the pandemic, remote proceedings were a necessity, rather than an option, for most courts. Regulations about gathering in public spaces and social distancing dictated that proceedings that were previously conducted in person should be, at least temporarily, conducted remotely. In many cases, proceedings were held via live videoconference. As court planners, this led us to consider important questions about future space usage, such as whether the number of courtrooms would be affected.
While working on several recent court planning projects, I’ve gathered firsthand feedback from judges and court managers on the topic of remote proceedings. While there are certainly perceived benefits in terms of time savings and reduced travel costs, there are also valid reasons why some courts are largely returning to in-person proceedings. Here are two of the reasons I have encountered most frequently.
- Access to technology – Providing fair and impartial justice is challenging enough, and technology introduces a new level of complexity. All parties need a minimum combination of hardware and software to participate. In addition, access to high-speed internet service is a must, along with the knowledge and skill to use the equipment and to ensure connectivity. For a variety of reasons (e.g., cost, geography, etc.), not all potential litigants possess the necessary combination of equipment and connectivity. The expansion of free internet service in some communities and the use of “Zoom rooms” in courthouses and other public places can help, but only to a point. Some people simply do not have the opportunity or ability to participate in remote court proceedings.
- Organizational resistance – No two organizations are alike, so it shouldn’t be surprising that some courts and judicial systems intend to make remote proceedings a focal point for the long term, while others will resist making this transition. Consider two local courts we’ve worked with during and after the pandemic:
- Court A conducted all arraignments/initial appearances remotely during the pandemic. Most of the detained individuals were housed in one of two nearby jails, both of which were outfitted with appropriate video technology and hearing/interview room space. The judges were pleased with the efficiency of the proceedings. When the arraignments were previously conducted in person, defendants were often transported in groups from the detention facilities, seated in a portion of the gallery, and called up individually for a brief appearance before the judge. Conducting the arraignments remotely saved time and cost by cutting out the need for detainee transport, and also removed the associated security risks. Court A plans to continue conducting arraignments remotely for the long term and has incorporated the appropriate courtroom technology into a planned renovation and construction project.
- Court B conducted all arraignments/initial appearances remotely during the pandemic, but only for the limited time during which public spaces were closed due to broader government safety protocols. During the pandemic, the judicial system to which Court B belongs developed long-term policies for telework and remote proceedings. As part of that effort, the judges and local bar emphasized the importance of conducting in-person arraignments. The judges want to interact with defendants face-to-face, and the bar emphasized the criticality of interacting with opposing counsel and potentially discussing (or even completing) plea deals. Certain types of minor proceedings (e.g., traffic, some civil, etc.) will be conducted remotely in the future, but Court B will conduct all criminal proceedings in person.
These are only a couple examples. The use of remote proceedings also raises important Constitutional issues about equality, the right to confront accusers, and the right to a trial by one’s peers.
So are there limits to the use of remote proceedings? My experience indicates that there are, but where those limits should ideally be set is unique to the needs of each court.