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Videoconferencing in the Courts: An Exploratory Study of Videoconferencing Impact on the Attorney-Client Relationship in

Massachusetts

A dissertation presented

By

Eric T. Bellone

to

the College of Social Sciences and Humanities

In partial fulfillment of the requirements for the degree of

Doctor of Philosophy

In the field of Law and Public Policy

Northeastern University

Boston, Massachusetts

March 2015

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VIDEOCONFERENCING IN THE COURTS: AN EXPLORATORY STUDY OF VIDEOCONFERENCING IMPACT ON THE ATTORNEY-CLIENT

RELATIONSHIP IN MASSACHUSETTS

By

Eric T. Bellone

ABSTRACT OF DISSERTATION

Submitted in partial fulfillment of the requirements

for the degree of Doctor of Philosophy in the field of

Law and Public Policy in the College of Social Science and Humanities of

Northeastern University

March 2015

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ABSTRACT

In response to increasingly crowded dockets, courts are experimenting with new

technologies. Specifically, the use of videoconferencing is spreading through the federal and

state court systems to streamline legal proceedings and provide the accused greater access to

justice. Videoconferencing has been used in arraignments, bail, sentencing, and post-

conviction hearings, but no criminal trial has yet been conducted in this medium. The impact

of videoconferencing technology on the legal process has not been measured in any

systematic way. Of prime concern is the impact of this technology on the attorney-client

relationship and their private communications in criminal representations. Critics argue that

the use of videoconferencing calls into question the ability of attorneys and clients to

communicate, undermining effective representation by counsel. This first-of-its-kind study

will empirically analyze data from the National Center for State Courts (NCSC) with special

emphasis placed on the privacy of communications between an attorney and a client. This

dissertation further provides an assessment of the use of videoconferencing by interviewing

defense attorneys about its use. These interviews are designed to provide (1) context to the

NCSC data analysis and (2) check the accuracy of the data’s conclusions concerning the

areas analyzed. It concludes with an examination of the impact of videoconferencing on

private communications in criminal proceedings and the wider implications of the impact of

technology on civil liberties so that negative aspects of videoconferencing can be lessened,

avoided, and/or remedied.

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ACKNOWLEDGEMENTS

Many people have helped and guided me during this long process. I thank Professor

Thomas Koenig, my dissertation chair, for all his guidance and patience. His wisdom and

experience were invaluable. He was always responsive and timely with reading and

commenting on my drafts.

I also thank my other committee members Jack McDevitt and Michael Rustad for

their contributions to this process. I was lucky to have them.

Thanks to Kathie Simmons for helping me navigate the Northeastern bureaucracy.

She always helped and was quick with answers to my numerous questions. She was

invaluable to this process.

Thanks to Joan Fitzgerald for my entrance into the program and her help throughout

the process.

I thank my wife Heather for all her unflinching support, help, and love throughout this

long process. I could not have asked for a better spouse during the roller coaster ride that is

doctoral study. She provided encouragement and love during a process that was often very

trying. She is more than I deserve and I could not have completed this dissertation without

her. I love her very much.

I would also like to thank my son Conor. His wonderful nature and optimism was

often just the thing I needed after a long day. I love him very much.

Lastly, I thank my parents, Joseph and Stella Bellone, for listening to all my ideas,

hopes, and complaints during this process. They never let me forget that hard work and

perseverance are as important as intelligence in all endeavors. They provide me with

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examples of someone to look up to and something to live up to everyday. I love them very

much.

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TABLE OF CONTENTS

Abstract 2

Acknowledgements 4

Table of Contents 6

Chapter 1: Introduction 7

Chapter 2: Literature Review 27

Chapter 3: Theories of Communication Via Videoconferencing 38

Chapter 4: Legal Analysis 55

Chapter 5: Results 115

Chapter 6: Recommendations 163

Chapter 7: Conclusions 170

Appendix A: Recruiting Template and Phone Script 174 Appendix B: Application for Approval for Use of Human 176 Participants in Research Appendix C: Sample Interview Script 187 Appendix D: Questions and Purposes of Questions 189 Appendix E: Informed Consent Form 194 Appendix F: Assurance of Principal Investigator

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CHAPTER ONE – INTRODUCTION

In recent years, courts have increasingly turned to videoconferencing as they struggle

to balance large caseloads and increasingly limited resources.1 Nationwide, judiciary budget

cuts have been five percent (5%) or more over with no relief in sight.2 While there is limited

empirical data on the incidence of videoconferencing, there is strong anecdotal evidence that

U.S. courts are widely adapting this new technology, particularly to connect out-of-court

criminal defendants with their attorneys in hearings culminating in prearranged guilty pleas.3

Researchers have not investigated the impact of videoconferencing on private

communications between attorneys and clients. The critical unanswered question is whether

videoconferencing dilutes constitutional guarantees because it limits interactive

communications between defense attorney and client. Defenders of videoconferencing argue

that this form of communication increases justice by increasing the speed to justice. By

accelerating the rate in which defendants proceed through the judicial system, proponents

maintain that defendants are granted access to a faster, more cost efficient legal process by

avoiding judicial delays.

A predicate to the right to counsel is open, trusting, and thorough communication,

both direct and nuanced, between defense attorney and client.4 The concern is that

1 Aaron Haas, Videoconferencing in Immigration Proceedings, 5 PIERCE L. REV. 59, 61-62 (2006). (The author states videoconferencing violate a number of important rights that are fundamental to our concepts of justice: the right to be present in court, the right to confront witnesses and evidence against you, and the right to effective representation by an attorney.). Emphasis added. 2 Mark Vuono, Will Sequestration Impair Timely Justice? , 15 No. 11 LAWYERSSJ 3 (2013). 3 Zachary M. Hillman, Pleading Guilty and Video Teleconference: Is a Defendant Constitutionally “Present” when Pleading Guilty by Video Teleconference, 7 J. HIGH TECH. L. 41, 41 (2007 ). See also www.abanow,org/2011/09cuts-to-state-focus-of-symposium. (As the author notes, courtrooms around the country are not perceived as fertile grounds for the use of new technology.). 4 See Alexandra Natapoff, Speechless: The Silencing of Criminal Defendants, 80 N.Y.U.L. REV. 1449, 1452, 1469 (2005) (Anything that disrupts the free flow of private communications between attorney and

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videoconferencing may reduce access.5 For courts to enhance a defendants’ sense that

courtrooms are fair and just, they must focus on improving communications.6 Effective

communication is crucial to ensuring that defendants perceive their experience as impartial

and effective.7 While there is an increase in the use of technology throughout the criminal

justice system (electronic bracelets, surveillance cameras, etc.), the courtroom is enormously

different. Fundamental fairness and due process requirements mandate that “… the court

must be alert to avoid practices that undermine fairness of the fact-finding process.”8

Further, more than the constitutional issues, the use of videoconferencing in the courtroom

may be viewed as “… as an affront to the very dignity of the courtroom and the decorum of

judicial proceedings that the judge is seeking to uphold.”9 The wider question is whether

justice may be served if the defendant does not physically make an appearance in courtroom

but appears remotely.

client effectively silence the defendant. “… speech is the constitutionally celebrated vehicle by which defendants have their “day in court” enforce or waive their constitutional rights, tell their stories to the jury, persuade the judge of proper punishment, and communicate with their constitutionally guaranteed counsel.”). Emphasis added. 5 Harvard Law Review Association: Developments in the Law – Access to Courts: Access to Courts and Videoconferencing in Immigration Court Proceedings, 122 HARV. L. REV. 1181, 1182, 1192 (2009) (Videoconferencing obstructs the fact-finding process and prevents courts from fulfilling the adjudicative function for which they were designed.). 6 See M. Somjen Frazer, The Impact of the Community Court Model on Defendant Perceptions of Fairness, CTR FOR ST. CT. INNOVATION, (Center for St. Ct. Innovation, NY, NY) Sept. 2006 at 24. (This research focused on the perception of fairness in different court models. It was found that the clearer the communication between the defendant and all the other participants in the court, including his defense attorney, the more positive their perception of justice. This emphasis on clear communications is analogous to the use of videoconferencing. If videoconferencing perceptively diminishes communications between a defendant and their attorney, then their substantive right to adequate counsel and procedural rights have been diminished.). 7 Id. at 29. The policy implications detailed by the author include that effective communication is crucial to ensuring defendants perceive their experiences as fair and that courts should continually work to improve communications. 8 United States Court of Appeals, Second Circuit, Ronald Davidson v. Dean Riley et. Al. 44 F.3d 1118, 1122 1995. 9 Id. at 1122.

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As noted, videoconferencing’s effect on attorney-client private communications is not

well understood or studied.10 Research questions and methodologies have been proposed but

not carried out.11 Possible avenues of research include the effects of videoconferencing on

legal decision-making, perceptions of justice, and legal efficiency.12 The underlying concern

is to determine whether videoconferencing in legal proceedings violates the defendant’s due

process rights or whether it violates a defendant’s right of confrontation under the Sixth

Amendment.13

This dissertation investigates the claim that videoconferencing is detrimental to

attorney-client private communications specifically when the attorney is in the courtroom but

the client is at a remote location, such as a jail or prison. In this part of the dissertation, I

review the literature and research to illustrate how this technology is currently being used

and what impact, if any it has on constitutional rights and the legal system. I conduct a

secondary analysis of data collected by the National Center for State Courts (NCSC) survey

to study the impact of videoconferencing. 10 Molly Treadway Johnson and Elizabeth C. Wiggins, Videoconferencing in Criminal Proceedings: Legal and Empirical Issues and Directions for Research, 28:2, LAW & POL’Y, 212 (April 2006). (The authors confirm that there is little empirical information concerning the use of videoconferencing in criminal proceedings. The effects of videoconferencing on the behavior of the participants need to be reviewed and its effects on defendants’ rights.). 11 Id. at 223. Some potential research approaches include the use of previously developed psychological theories on how videoconferenced affect communications, especially private attorney-client communications. 12 Id. Questions about the actual effects of videoconferencing on the perceptions and behavior of participants in criminal proceedings can be answered through survey and the use of experimental design. 13 Gerald G. Ashdown and Michael A. Menzel, The Convenience of the Guillotine?: Video Proceedings in Federal Prosecutions, 80 Denv. U.L. Rev. 63, 64-65 (2002). (If efficiency is the issue, then the authors offer the example of the efficiency of eliminating juries. “Without juries there would be no evidentiary objections, no need for conferences at sidebar, and, of course, no jury deliberations. Although defendants might obtain some benefit from the increased efficiency achieved by eliminating juries, it would be trivial compared to the benefits to the government and the cost to defendants of not being tried by their peers.”).

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First, this dissertation defines videoconferencing and the theories of communication

that relate to its functions. This section focuses on attorney-client private communications

and the theories of how videoconferencing influences such communications when the

attorney is in the courtroom and the client is remotely located. Second, it examines the pros

and cons of videoconferencing, with examples of how the courts have addressed these issues

and how social scientific theories view videoconferencing. A review of Emergent Meaning

Theory, Information Integration Theory, Communication Theory, and others offer different

perspectives through which videoconferencing may be handled. Third, this dissertation

examines data from the NCSC that suggests videoconferencing is having a negative impact

on attorney-client communications, whereby defendants have no opportunity for private

communications with their attorney when their lawyer is in the courtroom and they are

located elsewhere.14

Little is known about the practical issue associated with attorney-client private

communications via videoconferencing, specifically in comparing the difference between

videoconferences and “in person” communications.15 The data however, does show there is

a difference between the quality, indeed even the possibility, of private communications

between defense attorney and client via videoconferencing.

14 See Anne Bowen Poulin, Criminal Justice and Videoconferencing Technology: The Remote Defendant, 78 TUL. L. REV. 1089, 1110-1112 (2004). (These problematic questions have not been fully studied. That critical aspects of the defendant’s communicative efforts will not be conveyed and, conversely, the defendant will not receive the full import of their attorneys communications.). 15 Id. at 1104-1111.

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What is Videoconferencing?

Videoconferencing is comprised of interactive telecommunication technologies that

allow two or more locations to interact (via two-way video and audio transmissions)

simultaneously.16 Electronic communication aims to improve the interchange of

information between users.17 This technology permits both real-time sound and images of

conversation between people in different locations18 through a system of monitors,

microphones, cameras, computer equipment, and other devices.19

As the technology has developed and become more affordable, videoconferencing has

gained popularity in a number of fields.20 The business world praises videoconferencing as

an efficient and economical alternative to face-to-face meetings.21 The drive for saving time

and money has spurred its use in the courtroom, with the hope that it would improve the

efficiency of the administration of justice.

16 Haas, supra note 2, at 62. 17 Pauline Ratnasingham, The Importance of Trust in Electronic Commerce, 8: 4 INTERNET RESEARCH: ELEC. NETWORKING APPLICATION & POL’Y 313, 313 (1998). (This research focuses on issues of trust in electronic commerce. It concludes that confidence in a trustful relationship is necessary to reduce the threat of a breakdown of effective communications.). 18 Ernst Bekkering and J. P. Shim, i2i Trust in Videoconferencing, 29:7 COMMC’NS ACM 103 (2006). (This definition was established many years ago from the beginnings of the use of videoconferencing-like technology dating back to the 1964 New York World’s Fair where the PicturePhone was introduced.). 19 ROSALIE T. TORRES, HALLIE PRESKILL, MARY E. PIONTEK, Evaluation Strategies for Communicating and Reporting 204 (2ND. ED. 2005) (Cautions that the use of technology impedes communications and highlights specific strategies and techniques to minimize such impediments.). 20 Id. at .62. 21 Fredric Lederer, The Legality and Practicality of Remote Witness Testimony, PRACTICAL LITIGATOR, 22 (September 2009) (The author is a proponent of videoconferencing technology. Indeed, the author states that as the technology improves, there will come a time when physical presence will never be mandated.).

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Videoconferencing eliminates the physical risk to officers who transport and secure

defendants during a hearing.22 Videoconferencing supporters argue that a defendant can

better preserve personal dignity by remaining in jail and not entering the courtroom in an

orange jumpsuit and handcuffs. Literature and case law illustrate how negatively a defendant

can be viewed in the courtroom.23 Critics do not agree. Some defense attorneys have

reported varying degrees of comfort with the process.24 They believe videoconferenced

hearings lack the dignity, decorum, and respect that personal appearances before the court

require.25 Legal scholars have also expressed concern over the impact of technology on the

defendant’s rights, particularly its effect on the privacy of attorney-client communication.26

More critics cite situations where the defendant and counsel are physically separated. The

consensus among these scholars is that the courtroom is the wrong place for such

experiments.27 The impact of videoconferencing on the ability of attorneys and defendants to

22 Robert H. Philibosian et al., Video Arraignments and its Potential for use in the County Criminal Justice System, LOS ANGELES COUNTY CITIZENS’ ECONOMY & EFFICIENCY COMM’N, 6 (November 2004). (This study states that some defense attorneys supported the use of videoconferencing because videoconferencing facilities at the court routinely enabled defense attorneys to interview in-custody clients without the need to the detention facility. Given the communication difficulties stated National Center for State Courts’ (NCSC) survey (See Data Section), a large percentage make no accommodations for private communications between attorney and client.). 23 Frazer at 24. See also Illinois v. Allen, 397 US 337 (1970). 24Philibosian at 8. 25 David A. Davis, Talking Heads – Virtual Reality and the Presence of Defendants in Court, FLA. BAR J., 75:2, 27 (February 2001). (The author states that the courtroom is more than a mere location with seats for a judge, jury, witnesses, defendant, prosecutor, defense, counsel, and public observers; the setting that the courtroom provides is an important element in the constitutional conception of a trial contributing to the dignity essential to the trial process.). 26 Hillman, supra note 3, at 44. (Often concerning the potential dehumanizing effect of defendants, attorneys, and judges.). 27 See Johnson & Wiggins, supra note 10, at 223. The use of videoconferencing in courtrooms before its effects of the technology on the legal process and the rights of the defendant are fully understood is problematic.

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communicate and trust each other must be determined on legal and social scientific grounds.

The key research question is, does videoconferencing dilute the quality of justice?28

Videoconferencing and the Justice Process

Critics call for more research into how videoconferencing is used for a variety of

criminal proceedings.29 The Constitution, the Rules of Evidence, and the Rules of Criminal

Procedure form the cornerstone of fairness and procedural justice.30 A foundation for

ensuring fairness is the ability of defendants to consult with their attorneys at key times. The

Rules of Evidence were written to ensure that evidence with high probative value is

admitted, while evidence that does not is minimized. The Rules of Evidence consider the

elevated standard of an individual accused of a crime, punishable by loss of liberty or death.

Interpretation and alteration of these rules jeopardize the chance for a correct outcome in the

legal process. Any change in these basic rules must further ensure a correct outcome.

Creating outcomes that are more just is a benefit to all, ensuring fundamental fairness and

conferring legitimacy to the legal process. Many rules affect fundamental fairness and

procedural justice. A major rule in the American legal process concerns the ability of the

accused to confront the witnesses, evidence, and the state apparatus (the court itself) that

threaten his liberty. The use of videoconferencing must be examined with respect to fairness

and procedural justice, because it represents a change to the basic rules.

28 Poulin, supra note 12, at 1104. The author states that if videoconferencing technology reduces client-attorney contact by separating the defendant from the defense attorney, then courts should instead devote those resources to supporting representation of incarcerated defendants and improving the quality of justice. 29 See Michael A. Stodgill, Permitting the Use of Videoconferencing in Civil Commitment Hearings, 55 MD. L. REV. 1001, 1016 (1996). 30 Poulin at 1105.

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Every criminal defendant has a constitutional due process right to be physically

present at all critical stages of their criminal proceeding.31 Courts have generally found a

defendant’s presence to be a constitutional necessity because of the sense that the

defendant’s attendance affects perceptions and outcomes.32 Courts often cite the problem of

providing a defendant with a way to communicate privately with their attorney.33 Often,

there is no provision for privileged communications between attorney and client via

videoconferencing.34

Videoconferencing invariably detracts from the attorney-client relationship and the

private communication between them.35 It highlights the issues and detrimental impact that

videoconferencing has on attorney-client communications.36 The use of videoconferencing

leads to decreased personal contact between users and the possible alienation of defendants

in the criminal justice system.37

31 See Hillman, supra note 3, at 41. See United States v. Gagnon, 470 U.S. 522, 526 (1985) (Courts have been attempting to determine what “physical presence” means ever since.). 32 Diamond et al., supra note 24, at 882. Given the example of sentencing where the Fifth Circuit determined that sentencing a defendant by videoconferencing risks the loss of the human element. The technology creates a “disconnect” between a living person and a picture of a person on a screen. 33 See Diamond et al., supra note 24, at 899. Studies that find that business meetings differ little from face-to-face meetings are not analogous to attorney-client interactions at criminal hearings and/or trials. The dynamics of these situations are different as the average criminal defendant is markedly different from that average business person in terms of education, familiarity with videoconferencing technology, and nature of such communications. 34 Poulin, supra note 12, at 1129. See note 200. No communication or limited communications (communications that limited non-verbal communications) is a problem of videoconferencing in many jurisdictions. 35 See Id. This article highlights the 2002 case of Rusu v. INS where the respondent participated in his hearing from a detention facility while his counsel, along with the immigration judge, where convened in a courtroom many miles away. During this hearing, the reviewing court recognized that the participants’’ mutual inability to understand each other at times. 36 Harvard Law Review Association, supra note 5, at 1189. 37 See Stodghill, supra note 27, at 1017.

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The Attorney-Client Relationship: Communication and Trust

Understanding the role of defense counsel and its evolution is necessary to understand

the impact of videoconferencing on the legal process, especially on attorney-client

communications. Defense counsel (a criminal defense lawyer) represents a defendant

accused of a crime. He is the counterweight to the prosecutor in the criminal justice process.

Without proper representation, the ability of a criminal defendant to obtain a fair trial would

be impossible. Defense counsel guides and advises the defendant through the multiple stages

of the criminal justice process, starting with arrest, through the arraignment, the initial

appearance/preliminary hearing, bail hearing, other pre-trial hearings, trial, and appeal.

Navigating the client through the complexities of criminal law and procedure is the primary

job of defense counsel. Defense counsel explains to the client what is happening at every

stage in the justice process and ensures the defendant knows and understands their

constitutional rights. Defense counsel handles all dealings with the prosecution and protects

a defendant’s rights, and counsel often views their role as a safeguard against government

overreach. The defense counsel, by duty, must zealously defend their client while forcing

the prosecution to prove every element of the charges they level at the defendant “beyond a

reasonable doubt.” The legal system, through defense attorneys, make sure that the

prosecution does everything properly and according to the rules. Legislation and the courts

have enacted Constitutional protections, the rules of evidence, and the rules of criminal

procedure for the protection of citizens accused of a crime.38 A defense counsel’s duties

include investigating the crime, interviewing the accused, contacting the prosecutor

(including plea bargain negotiations), interviewing witnesses and police, preparing for trial, 38 Poulin at 1105.

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representing the accused at pretrial hearings, representing the accused at trial, and, if

necessary, representing at sentencing and preparing an appeal.39

Until recently, the legal community did not put much emphasis on the criminal law.

This outlook seems to be based on the type of tasks a defense attorney must perform.40

Associating with and negotiating for an alleged criminal was deemed distasteful for a

professional attorney. This attitude, coupled with the low pay and status associated with

defense attorneys, added to the legal community’s negative view. Further, law schools

seldom offered more than one or two courses in criminal law and criminal procedure. This

has begun to change. Today, law schools offer a litany of criminal and often clinical courses

where law students can act as voluntary defense counsel. The University of Washington

Law School even allows students to be voluntary prosecutors in routine cases.41 The addition

of constitutional requirements concerning the right to counsel has added to the interest and

prestige of criminal defense.

There are different types of defense counsel. Understanding the differences of these

types and their histories can help us comprehend how they impact attorney-client

communication via videoconferencing. Videoconferencing may impact different types of

defense counsel differently, but they will be treated essentially the same for the purposes of

this thesis.

39 Id. 40 Joseph J. Senna and Larry J. Siegal, Essentials of Criminal Justice, Wadsworth Thomson Learning Inc., Belmont CA 248-249 (2001). 41 See University of Washington Law School website www.uniwashingtonlawschool.edu.

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Private Defense Counsel

Defense counsel can be a private attorney paid for by the defendant. The defendant

hires or retains defense, who works independently or within a private law firm on a case-by-

case basis. These attorneys often specialize in complex criminal defense work. Often these

attorneys gain their skills through experience, mostly as public defenders or prosecutors in

the trial courts. Some general practice attorneys occasionally take on small criminal cases,

but more and more defense work is becoming the purview of specialists. These attorneys

tend to be more experienced and more expensive, taking on clients who have the means to

afford them and the time to build an effective attorney-client relationship.

Not all criminal defendants can afford private counsel.42 In fact, the majority cannot.

Because of the constitutional requirement to provide legal representation for criminal clients

who are too poor or indigent to hire an attorney, there is a large need for such services.

Programs providing defense counsel for indigent individuals is often divided into three

categories: (1) Public Defenders, (2) Contract Attorneys and Assigned Counsel and, (3)

Legal Aid Societies. Today, more than five million defendants receive free legal

representation in the criminal justice system, costing over 1.5 billion dollars annually.43 The

use of such services is increasing. In recent years, indigent prosecutions that require defense

counsel have risen from forty three percent (43%) to eighty percent (80%).44

42 Id. 43 Senna & Siegel 2001:253 44 Other Comments on Rights Discourse in Criminal Procedure 122 YLJ 2176, 2197 (2013). See also Ely, Democracy and Trust 97 (1980); Klarman, Puzzling Resistance to Political Process Theory, 77 Va. L. Rev. 747, 763-66 (1991); Steiker, Second Thoughts about the First Principles, 107 Harv. L. Rev. 820, 838-52 (1994); see also William Stuntz, The Uneasy Relationship Between Procedure and Criminal Justice, 107 Yale L. J. 1, 5 (1997).

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Public Defenders

As private defense counsel becomes more of a specialized and expensive field, very

often the poor and indigent cannot afford their services. To help such defendants, defense

counsel can be employed and appointed by the government to represent people who are

charged with a crime but who cannot afford a private attorney. These public attorneys are

often referred to as “public defenders.” Public defenders represent the majority of legal

representation of indigent defendants in criminal cases. They are publically funded, salaried

government employees who are available in most counties of all fifty states. These attorneys

tend to be less experienced, have fewer resources, and far less time to build an effective

attorney-client relationship. In smaller or more rural areas, public defenders often work part-

time, with such attorneys also taking private clients. Compared to private attorneys, public

defenders tend to work heavy caseloads and are poorly paid. Advocates of

videoconferencing cite the crushing workload of public defenders as another reason to

expand the use of the technology. Critics see the expansion of an efficient but flawed

technology as exacerbating an already bad situation. Public defenders have struggled to

balance efficiency and justice since their office was first established in Los Angeles in

1913.45

Contract Attorneys and Assigned Counsel

Another way for indigent defendants to retain counsel is through the contract system.

Under the contract system, a block grant is provided to a private attorney or group of

attorneys to cover the expense of defending indigent defendants, often at the county level. In 45 Senna and Siegal, supra note 40 at 248-249.

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many cases, the state provides a specific amount of money to handle these cases. In other

instances, contract defense counsel agrees to provide legal defense for a set number of cases

at a fixed fee. In all cases, contract attorneys are paid far less than private attorneys and are

often employed in counties with a public defender system. They handle the overflow from

the public defender system or take conflict-of-interest cases that public defenders are unable

to handle. Proponents of the contract system insist that indigent defendants receive proper

legal representative at a reasonable cost. Because public defenders are government

employees, costs such as salaries, health care benefits, and retirement pensions all add to the

expense of legal representation. Contract attorney rates, however, are fixed or negotiated by

the state and can be budgeted as a controlled cost. They are not paid health care benefits or

pensions, which further reduces costs. Critics of the contract system maintain that funds are

better spent on full-time public defenders, proper supervision and support services.46

The assigned counsel system is somewhat similar to the contract system. In this

system, private attorneys are hired to represent indigent defendants. As in the contract

system, health care benefits and retirement pensions are not provided. Assigned counsel is

selected from a list established by the court. Often the attorneys are categorized by the types

of cases they will accept (either types of crime or by trial/appellate court). A judge or an

administrator coordinates the appointment of counsel, who provides legal representation on a

case-by-case basis. The state pays assigned counsel on a fixed hourly rate basis, which is

often less than a quarter of the cost of retaining private defense counsel. Some jurisdictions 46 Id. Technically, there is no difference between the effectiveness between private and public counsel. In reality there is a great difference. Public counsel is over worked and under paid. They have significantly more open files and any one time than their private counterparts. Many public counsel attorneys are young, using private defense as a place to learn their craft before moving on to more lucrative private counsel employment. This is an unfortunate reality of criminal defense work.

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establish a maximum amount per case that an attorney can charge. The assigned counsel

system suffers from many problems, foremost being that the hourly rates are so low it attracts

inexperienced, poorly qualified attorneys.47 Further, the lack of supervision and inadequate

support services may lead to rushed plea bargains. The assigned counsel system, proponents

counter, offers an opportunity for private attorneys to gain this valuable experience in the

criminal system. Without it, there would be fewer qualified attorneys for criminal defense.

It further offers necessary representation to indigent defendants, whereas many public

defender systems cannot adequately represent all the indigent clients.

Contract attorneys and assigned counsel both suffer from many of the same issues as

do public defenders. They all tend to be poorly paid while working heavy caseloads. But

they tend to be less experienced, have fewer resources, and have far less time to build

effective attorney-client relationships. Videoconferencing, say critics, only makes this

situation worse by imposing another barrier between attorney and client. Poor defendants

already receive arguably substandard representation, and it would be further compromised by

the faulty and inadequate communication provided by videoconferencing. For some critics,

videoconferencing represents “the straw that breaks the camel’s back” when it comes to

insufficient legal representation.

Legal Aid Societies

There are also a small number of non-governmental not-for-profit agencies called

“legal aid societies” that provide defense counsel to the needy. These include law school

clinics where law students, under the supervision of an attorney, provide representation to 47 Id.

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indigent clients. Many states have student practice rules of procedure to defend clients.

They help fulfill constitutional requirements for criminal defense as well as provide valuable

experience for law students interested in becoming defense counsel. These clinics have

become an important part of the system. Of all the types of free representation, legal aid

societies are the most problematic for the use of videoconferencing as they have the fewest

resources.

Challenges of Indigent Defense Programs that Impact Videoconferencing

As stated, the costs of providing defense counsel to all criminal clients are in the

billions of dollars. Pressure for adequate funding of such programs is always a challenge.

As state budgets struggle, cuts to programs are inevitable. Although criminal defense

counsel is constitutionally mandated, taxpayer funds spent on the defense of accused

criminals is often unpopular and presents an easy target for cutting costs. The National

Center for State Courts, the American Bar Association, and the National Legal Aid and

Defenders Association all have called for more funding for indigent defendants.

Burdensome caseloads are another challenge to indigent defense programs. As

funding is cut for programs, fewer attorneys become available for indigent defense, which

adds to the caseloads. Some critics claim the “war on drugs” coupled with prosecutorial

overcharging ratchets up pressure on defendants to accept a plea bargain. Criminal appeals

present a special problem. Appeals involve the writing and presenting of complex briefs.

The amount of time needed to produce these briefs is often enormous, limiting the amount of

cases any defense attorney can take on. Death penalty litigation and appeals also represent

an extraordinary problem. In death penalty cases, where representation is as critical as it is

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complex, finding adequate representation is often impossible. All these problems lead to a

shortage of available defense attorneys for indigent criminal defense work. Attorneys are

very aware of the difficulties of such work and are not always interested in representing an

indigent defendant. Many experienced attorneys understandably refuse to work in a system

known for relatively low pay, heavy caseloads, burnout, and poor working conditions.

Critics maintain that videoconferencing offers little time for creation of an attorney-

client relationship and effective communication for indigent defendants. The lack of private

communications in the courtroom only adds to an already problematic relationship burdened

by a heavy caseload. The best defense requires a healthy, mature attorney-client relationship

(with effective, private communication) that can take advantage of all the rights afforded to

an accused. Opponents of videoconferencing realize that the poor generally do not get the

best representation; their issue is that videoconferencing often makes this already

problematic representation worse.

Defense counsel is an officer of the court as well as a representative of the accused.

As an officer of the court, part of defense counsel’s role is to uncover the facts and issues of

the crime. Not only does defense counsel zealously represent their client, but also they are

required to uphold the integrity of the legal profession and the American Bar Association’s

(ABA) Code of Professional Responsibility. Being both an officer of the court and counsel

for the defense, defense attorneys often faces ethical issues. Issues might involve a

defendant’s attempt to commit perjury, or discrediting the credibility of a witness defense

counsel knows to be telling the truth. In 1995, the ABA created ethical guidelines for

defense counsel, focusing on three areas: (1) confidentiality issues, (2) conflict-of-interest

issues, and (3) decision-making responsibilities of defense counsel.

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Confidentiality conflicts arise when information protected by the attorney-client

privilege conflicts with information that should be made available to the court or prosecutor.

In general, communication between a defendant and defense counsel (including written,

spoken, or physical gestures) cannot be disclosed to the court without the defendant’s

consent. In court, videoconferencing makes private communication between the defense

counsel and client problematic. Furthermore, some defense counsel question the

confidentiality of attorney-client privilege when videoconferencing is involved in any

context. In light of the current national debate concerning the National Security

Administration (NSA) and other government programs that target data communication, the

concern over secure, wireless communication between attorneys and clients is high. Defense

counsel must always be aware of these issues.

Another ethical area defense counsel must monitor is conflict-of-interest. Private and

public counsel have different issues. Because the defendant pays for private defense counsel,

for instance, such payments may create a conflict of interest. Often private defense attorneys

are paid in advance, at the beginning of a case, and the fee is kept regardless of whether the

case is plea bargained or goes to trial. For many lower level crimes defense attorneys charge

a flat fee. The faster they resolve a charge, such as through plea bargaining, the greater their

hourly profit. Because trials require a defense counsel’s time and resources, this could create

an incentive for defense counsel to pressure a defendant into accepting a plea bargain and

thus maximizing profit. Competing interests are always a challenge for private defense

counsel.

With public counsel, confidentiality issues may be exacerbated by the heavy

caseloads they encounter. Public counsel could pressure a defendant to accept a plea in order

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to close the case and reduce costs. These issues revolve around maximizing time – a main

justification for the use of videoconferencing. What may be lost in this goal is the effective

representation of the defendant. Where justice must choose between efficiency and

effectiveness, it must choose effectiveness.

Defense counsel makes many decisions regarding the demarcation of responsibilities

for the defendant and defense counsel during the representation. Conversations between

counsel and accused must determine decisions during negotiations, hearings, and trial.

Private communication between attorney and defendant is an ethical area to which defense

counsel must always pay special attention. Avoiding ethical issues is necessary for a proper

defense. Failure to do so calls into question the competence of the defense attorney.

The competency of defense counsel is an important issue in the criminal court system.

Merely providing defense counsel does not fulfill the constitutional requirement that defense

counsel must be competent and effective. Our criminal court system is predicated on the

assumption that competent and effective counsel will represent both sides of a case; the

system cannot operate without it. The American court system is adversarial, where the

prosecutor and the defense publicly battle over the facts and the law of each case. The

prosecutor argues for the state, and must prove all the elements of the charge beyond a

reasonable doubt. The defense counsel argues for the defendant, making sure that the

defendant receives all constitutionally mandated due process and that the prosecutor respects

the defendant’s rights. The competition between the two parties, however, is not “no holds

barred.” All parties must operate within the Constitution, the Rules of Criminal Procedure,

and the Rules of Evidence. The adversarial system assumes that defense counsel is

competent. The behavior of defense counsel, in some cases, has shown this may be a false

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assumption. Defense counsel has failed to conduct a proper defense in many cases by

failing to cross examine key witnesses, failing to familiarize themselves with the file, or

failing to conduct basic fact-finding of the case. Other more blatant examples are never

meeting with a defendant, not filing basic appeals, or falling asleep at trial.

Competency of defense attorneys was first defined in the 1984 case Strickland v.

Washington. Strickland, the defendant, was charged with several crimes including murder,

torture, and kidnapping. Facing a possible death sentence, Strickland pled guilty against the

advice of defense counsel, hoping to avoid execution by remaining under the jurisdiction of a

judge known for leniency. He also rejected his attorney’s advice that he request an advisory

jury at his sentencing hearing, which would aid the judge in deciding whether to impose the

death penalty. The judge sentenced Strickland to death. Strickland appealed to the U.S.

Supreme Court on the grounds that his counsel was ineffective and did not call character or

psychiatric witnesses. The Court rejected his appeal, citing a two-part standard for defense

attorney competence.

First, the defendant must show that the attorney’s actions were deficient and that the

errors made were so serious that they violated the defendant’s Sixth Amendment rights.

Second, the defendant must show that the errors were so egregious that they resulted in the

defendant not receiving a fair trial. The courts have recently adopted a “reasonable

competence standard” for defense counsel. In reviewing a defense attorney’s behavior and

competency, the essential question asked is: Did the defendant receive reasonable legal

representation under the circumstances?

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An attorney cannot effectively represent a client without effective communication.48

Does videoconferencing create a major barrier to this attorney-client communication, when

the defendant is in detention but defense counsel is in the courtroom during a hearing or

trial?49 Does videoconferencing block access to counsel by: 1) preventing communication

with counsel at all and/or 2) limiting communication with counsel via video?50 One study

has found that the vast majority of defense lawyers believe that private attorney-client

communications via videoconferencing is simply impossible.51 A defendant’s confidence in

his counsel may be reduced via video, thus minimizing the crucial trust between attorney and

client.52 On video, crucial aspects of a defendant’s physical presence may be lost or

misinterpreted, including demeanor, facial expressions, and vocal inflections. This could

prevent immediate and unmediated contact with counsel.53 Proponents of

videoconferencing, however, have come to a different conclusion. This thesis will address

these opposing viewpoints and issues.

48 See Matthew S. Compton, Fulfilling Your Professional Responsibilities: Representing a Deaf Client in Texas, 39 ST. MARY’S L. J. 819, 900-901 (2008) (The ability to communicate is vital to the justice process. Anytime the free flow of information, especially private communications between attorney and their client, justice suffers.). 49 See AMANDA J. GRANT, ET AL., VIDEOCONFERENCING IN REMOVAL PROCEEDINGS: A CASE STUDY OF THE CHICAGO IMMIGRATION COURT, THE LEGAL ASSISTANCE FOUND. METROPOLITAN CHI. & CHI. APPLESEED FUND FOR JUST. 38 (AUG. 2, 2005) (“We found that videoconferencing is a poor substitute for in-person hearings. Among the problems, we observed deficiencies related to access to counsel, presentation of evidence, and interpretation.”). Emphasis added. 50 Id. at 38. 51 Id. 52 Davis, supra note 22, at 28. Via videoconferencing, crucial aspects of a defendant’s or lawyers’ appearance may be lost or misinterpreted. Things like a participant’s demeanor, facial expressions, vocal inflections, and the ability for immediate and unmediated contact with counsel are necessary. 53 See Id.

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CHAPTER TWO – LITERATURE REVIEW

Counsel and Client

The criminal justice system needs to make resources available for effective client-

attorney private communication.54 Because defense counsel faces so many difficulties in

representing a client via videoconferencing, the attorney may become inadequate to achieve

fundamental fairness.55 Ineffective assistance of counsel based on the lack of attorney-client

private communication or limits on such communications of a deaf client’s attorney would

be particularly severe if there is a problem with an interpreter.56 Just as a defendant’s

attorney should ensure that deafness should not prevent a client from communicating with

them, videoconferencing should not prevent a client from communicating with their

attorney.57 Videoconferencing is especially problematic during evidentiary hearings.58 If an

attorney believes that videoconferencing or any other situation compromises effectiveness,

that attorney should promptly advise the court and formally object for the record, if

54 See Compton, supra note 36, at 901. This relates to defense attorneys with deaf clients where translation equipment may not be adequate or utilized properly as in the criminal justice system where defense attorneys do not control the videoconferencing equipment. 55 See Id. 56 See Compton, supra note 36, at 855-886. The author highlights the issues that can arise when there is poor communication between the parties in the courtroom. Issues like because of the situation, the defense attorney may not know whether the defendant understands or is failing to communicate. 57 See Id. at 899. 58 William M. Binder, Videoconferencing: A Juvenile Defense Attorney’s Perspective, WIS. LAWYER 1 (July 1997). (The author states that the defendant will not see the demonstrative evidence, diagrams or documents discussed in the courtroom, out of sight of the video camera.).

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necessary.59 Videoconferencing makes impossible a defendant’s ability to properly interact

with counsel, answer or ask questions, pass notes or view documents.60

Videoconferencing separates an attorney and client, complicating and diminishing

basic communication.61 A defendant who has little or no private communication with his/her

attorney may believe that their lawyer is merely processing their case without any real

personal connection, which can only weaken their relationship.62

Attorneys and clients typically “size each other up” during their relationship: they

evaluate each other’s character, demeanor, experience, the nature of the offense, the

defendant’s prior record, and a multitude of other factors that cement (or not) the necessary

trust for a working relationship. Critics argue that videoconferencing may impede this trust

building process.63 Counsel and defendant are the critical sources in determining how to

proceed with a defense. The courtroom is the forum for gathering critical information, where

people exchange information and settle what is controversial.64 Often for lesser charges in

busy urban courts, meetings take place in the hallways, just before preliminary hearings. If

the face-to-face nature of the process is what makes a courtroom so effective, then the

question becomes whether a virtual presence is just as effective.

59 See Compton, supra note 36, at 900. The “situation” can be ineffective interpreting for a deaf client or videoconferencing where an attorney cannot effectively communicate because of the medium. 60 Binder, supra note 45, at 47. The author relates how Hollywood uses camera angles and other video techniques to evoke opinions and emotions and that videoconferencing in the courtroom may have similar, perhaps unintended, consequences. 61 Poulin, supra note 12, at 1129. Videoconferencing complicates an already difficult situation and will likely contribute to the problem of marginal or inadequate representation. 62 Davis, supra note 22, at 28. Consequently, because of videoconferencing, a client’s confidence in his defense counsel may be reduced, and the critical trust between a client and defendant minimized. 63 See Ashdown & Menzel, supra note 11, at 67. 64 Id. at 66-67.

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Attorney-Client Interactions

Videoconferencing mutes the human interaction that fosters trust in the attorney-client

relationship.65 It imposes another limit on attorney-client private communication within a

system that already imposes other limits.66 When video is used, often the attorney is in court

while the defendant is “present” from a detention center, rather than physically in

attendance.67 In this situation, some defense counsels state that they would have a more

difficult time presenting their case. The prosecution and defense present conflicting

information. If the defendant is not in court, and cannot privately, effectively communicate

with their defense counsel, the defendant will likely be hampered in challenging and

evaluating the evidence being presented. The physical separation between the defendant and

counsel makes it more difficult for a defense attorney to advise, calm, or control a

defendant.68

Attorney-client interviews are significant interactions for both lawyers and clients,69

and their conversations are essentially cooperative.70 In a typical attorney-client interaction,

information is exchanged in an orderly way. That information concerns more than the

65 Poulin, supra note 12, at 1129. The technology changes the basics of communication between attorney and defendant by delivering less communicative information than by face-to-face contact. And, as such, lowers the relationship of trust necessary in the attorney-client relationship. 66 See Natapoff, supra note 4, at 1473. Privileged communications that the court assumes has taken place between defense counsel and their client include an understanding of basic constitutional rights, the right to a jury, to testify, appeal, and challenge evidence. 67 Poulin, supra note 12, at 1129. 68 Id. 69 See Linda F. Smith, Client-Lawyer Talk: Lessons from Other Disciplines, 13 CLINICAL L. REV. 507, 512 (2006) (Attorney-client interactions are essentially conversations and that conversations need to proceed in “orderly” ways. Any impediments to these interactions, such as videoconferencing, detract from effective representation.). 70 Id.

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tactical topics of the clients’ goals and the manner in which the attorney will achieve those

goals.71 Not merely “ordinary talk,”72 these exchanges deal with the client’s background,

interests, and context for what they would consider to be a successful outcome and should

precede an attorney’s solution.73 Many defendants and counselors are dissatisfied with

videoconferencing because it fails to supply enough information about the defendant with

whom they are speaking.74 Some attorneys find the use of videoconferencing to be a “surreal

experience” in which clients become a “piece of electronic equipment.”75 Some scholars

believe that videoconferencing primarily benefits the government by lowering costs and

speeding the legal process to the defendant’s detriment.76

Just as with a client who is mentally incompetent to stand trial, a defendant who

cannot privately communicate with their attorney because of an inadequate

videoconferencing system is compromised in his ability to make rational decisions, or to

produce ideas and thoughts necessary for achieving fundamental fairness.77 Attorney-client

communication, like competency, is necessary for a fair trial.78 Most defense attorneys are

71 Id. at 510-512. 72 Id. at 513. 73 Id. at 523-524. 74 Cameron Teoh et al., Investigating Factors Influencing Trust in Video-Mediated Communications, (http://portal.acm.org/dl.cfm) 313 (2010). (Among the factors investigated were the use of videoconferencing technology and communication and collaborative activities. The study specifically explored the effect of varying the amount of visual information videoconferencing partners receive about each other on several factors: trust, performance, social presence, and satisfaction with performance and task process.). 75 Haas, supra note 2, at 64. 76 Hillman, supra note 3, at 47. The author notes savings in efficiency and security which (especially at this time) are concerns of the government. The defendant’s concerns are much more likely to center on constitutional and procedural rights. 77 See Joanmarie Ilaria Davoli, Physically Present, Yet Mentally Absent, 48 LOUISVILLE L. REV. 313, 318 (2010) (Impediments to effective representation can take many forms. Unlike mental incompetence, videoconferencing is an impediment introduced into the justice system.). 78 Id. at 317.

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untrained in the use of videoconferencing. Thus, defense attorneys unfamiliar with

videoconferencing’s inadequacies are concerned that raising competency issues may

negatively affect their client’s defense.79

Researchers found that the more complex the task, the greater the need for a richer

and more subtle communication environment.80 The richness of videoconferencing depends

on the availability of instant feedback, the use of multiple cues (such as facial expressions,

voice inflections, and gestures), the use of natural language for conveying a broad set of

concepts and ideas, and the personal focus of the medium.81 Videoconferencing systems are

notorious for introducing spatial distortions.82 Internet videoconferencing is especially

subject to providing “jerky” or halting images, depending on the level of Internet traffic and

the speed of connections.83

Non-verbal gestures and cues form a large part of the way we communicate and

express ourselves.84 Because videoconferencing often presents timing difficulties, people

have to be careful not to interrupt others, or alter the way they speak.85 People often need to

79 Id. at 318. 80 Gail Corbitt et al., A Comparison of Team Development Stages, Trust and Performance for Virtual versus Face-to-Face Teams, Proceedings of the 37th Hawaii International Conference on System Sciences 3-4 (2004). (The four task classifications of increasing information requirements and complexity are 1) generating ideas and plans (brainstorming), 2 making choices in situations with and without right answers, 3) negotiating or resolving conflicts of opinion and/or interest, and 4) executing plans (which includes negotiating differences in power). This study found that virtual teams had higher trust coefficients. But this was due to the positive actions the team took, regardless of the medium (either via video or face-to-face)). 81 Bekkering & Shim, supra note 16, at 104. Media Richness Theory (MRT) states that communication channels differ in the amount and variety of information they carry. As criminal defense is a complex, multidimensional task; a richer communication media is preferred and the richest form of communication is face-to-face. 82 Torres, Preskill & Piontek, supra note at 17. See infra note 124. 83 Id. 84 Teoh et al., supra note 62, at 313. 85 Torres, Preskill & Piontek, supra note 17, at 208.

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be coached to look into the camera and not the viewing monitor, to give the impression of

eye contact when speaking.86 In some jurisdictions, the defendant standing before the screen

is visible to the courtroom audience, while the defendant can see only the judge.87 Biases

and stereotypes of attorneys and defendants may influence perceptions of face-to-face versus

videoed communications.88

Communication versus Effective Communication

People who use videoconferencing consider body language important in establishing

trust, but the ability to read non-verbal gestures and cues is limited.89 In effective

communication, some of the strongest predictors of believability concern the speaker’s

confidence and consistency.90 In videoconferencing, many non-verbal cues, including gaze

and deictic gestures, are dependent on the spatial faithfulness of the system.91 Any technical

problem can render the exchange worthless.92 During initial meetings that establish rapport

86 Id. at 209. 87 Binder, supra note 45, at. 47. The author stresses that the view of the participants in a videoconferenced proceeding is important. 88 See Gail S. Goodman et al., Face-to-Face Confrontation: Effects of Closed-Circuit Technology on Children’s Eyewitness Testimony and Jurors’ Decisions, 22:2 L. HUM. BEHAV. 165, 169 (1998). 89 Cameron Teoh et al., Body Language and Gender in Videoconferencing, Info. Sci. Postgraduate Day, 9, 10 (October 2010) (This study identified the importance of body language and eye- and gaze contact as well as the consideration of gender as important contributing factors for effective remote communications.). 90 Id. at 170. 91 David Nguyen and John Canny, MultiView: Improving Trust in Group Video Conferencing Through Spatial Faithfulness, CHI 2007 PROCEEDINGS-TRUST & ENGAGEMENT 1465 (2007). (Videoconferencing systems are often used in group-to-group meetings where spatial distortions are exacerbated and this research concludes that such systems negatively affect trust patterns.). 92 David M. Fetterman, Videoconferencing On-Line : Enhancing Communication over the Internet, 25:4 EDUCATIONAL RESEARCHER 23,26 (1996). (Although the research is dated, the conclusions reached are valid. Situations that have a negative impact on the quality of the videoconferenced communications will likely degrade the attorney-client relationship.).

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and trust, non-verbal gestures and cues between client and attorney are vital for making

informed decisions concerning the case.93

Videoconferencing is a powerful medium that can become a pothole-riddled section

of the information super-highway without a powerful connection.94 If the quality of the

connection or video equipment is low, it can be necessary for all parties to speak slowly and

clearly into the microphone,95 fast movements are sometimes blurred, or images may

“freeze” on the screen for short periods.96 Many people believe, in light of the requirements

to support the complex, multi-layered processes needed to conduct effective videoconference

hearings, it is necessary to have both the prosecutor and defense attorney in the same place

and eliminate any need for videoconferencing.97

Research has confirmed that body language and eye contact are important

contributing factors for effective remote communication.98 Further, men and women

experience, perceive, and use videoconferencing in significantly different ways.99

Communicating via videoconferencing effectively is a learned skill, where speaking into the 93 Id. at 10. 94 Fetterman, supra note 79, at 27. Without a clear connection videoconferencing has limited usefulness in the courtroom. 95 Binder, supra note 45, at 1. The author states that technical flaws and limitations in the equipment diminish the quality of the court proceeding and that they may rise to the level of procedural and substantive violations for a fair hearing. 96 Id. at 1. 97 Lawrence P. Webster, Evaluation of Videoconferencing Technology Mesa Arizona Municipal Court, NAT’L CENTER FOR SAT. CTS. (Nat’l Center for Sat. Cts. Williamsburg, Va.) 10 (May 2009). (The author states that the only way for videoconferencing to be used in a way that is both fair and efficient is to have the defendant, defense counsel, and the prosecutor in the same locations (at the jail facility) and have their images videoconferenced to the judge in the courtroom. In this way all the necessary parties can view and converse with each other simultaneously. Interactions between the defendant and counsel can take place in the traditional fashion including private communications. Any disadvantage (or advantage) to the defense would be shared by the prosecution. This scenario seems to satisfy most criticisms of the technology.). 98 Teoh et al., supra note 80, at. 9. 99 Id. at 10.

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camera and not the monitor (screen) to address the other person makes a difference. When

the speaker looks only at the monitor and not the camera, it appears to the listener that the

speaker is not looking at them. Lack of eye contact is universally considered a sign of

deception, leading to feelings of mistrust.100 Humans are highly skilled at perceiving this eye

contact, and the negative effects of failing to maintain eye contact while speaking

significantly impact the promotion and maintenance of trust.101

Teamwork and trust is necessary to the working relationship between attorney and

client, and “teams” with high degrees of trust function more effectively.102 Research shows

trust is particularly critical in new relationships and, like partnerships, takes time to

establish.103 However, trust forms more slowly between people speaking in

videoconferences compared with face-to-face conversations.104 Trust, like rapport and

partnership, takes time to establish in the initial phase of relationship.105 The trust formed by

100 Bekkering & Shim, supra note 16, at 105-106. Researcher state that measuring trust can be accomplished in several ways. First, trust may be measured through certain behaviors such as delegating a task (as a client does with their attorney). Another way is through social dilemma games where participants are rewarded for higher levels of trust (this happens in the attorney-client context where clear communications between attorney and client that result in information being exchanged that yield positive outcomes for the client). And finally, trust can be measured by having the participants report their levels of trust on a questionnaire. 101 Id. at 107. 102 Corbitt et al., supra note 68, at 1 and 7. Complex relationships need high levels of trust in order to be efficient and effective. This research concluded that for trust to be established and maintained, participants must meet work expectations early in the relationship where the issues with videoconferencing inhibit work expectations and trust negatively impacting the attorney-client relationship. 103 Ratnasingham, supra note 15, at 341. 104 Nathan Bos, et al., Being There Versus Seeing There: Trust Via Video, SHORT TALKS, 292 (2001). (The study examined the emergence of trust in four different communication situations: face-to-face, videoconferenced, audio, and text chat scenarios. They noted how trust emerges in mediated communications.). 105 Ratnasingham, supra note 15, at 341. Often a limited time is available for clients and lawyers to establish such a relationship in a criminal case, especially where the attorney is court appointed or a

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videoconference encounters is fragile.106 High trust teams are more effective than low trust

teams.107 Research has found that people involved in videoconference negotiations

experienced less trust amongst them.108

Videoconferencing can interfere with the smooth flow of information between people.

When one person cannot ascertain that another person has finished speaking, trust can be

strained.109 Non-verbal gestures and cues contribute meaningfully to a conversation, and

help one to determine the trustworthiness of others.110

There are three stages of trust: 1) deterrence-based trust, 2) knowledge-based trust,

and 3) identification-based trust. The first leads to the next, with identification-based trust

being the highest form. Further, the development of trust is the same for all types of

relationships be they romantic, manager-employee, or client-attorney.111

public defender. Because of this limited time, trust needs to be established as quickly as possible. Any medium that inhibits or reduces the establishment of trust must be reviewed. 106 Bos, et al., supra note 96, at 292. The authors noted that videoconferenced and audio communications took some time to catch up with face-to-face group in developing trust. Often the decisions needed and the relationship between an attorney and a criminal defendant do not have the time needed to ‘catch up.’ 107 Corbitt et al., supra note 68, at 2. 108 Teoh et al., supra note 62, at 319. The research explains two possible reasons for a lack or drop in trust. The first is that due to the competitive, mixed-motive nature of the environment, people expect untrustworthy behavior and the body language endemic in videoconferencing reinforces judgments of untrustworthiness. Second, due the nature of the task, people are less trustworthy. 109 Fetterman, supra note 79, at 25. Technological problems can come from many sources. Software glitches, incompatible hardware, improper training of personnel operating the equipment, and outside problems from service providers all can contribute to ineffective videoconferenced communications. 110 Cameron Teoh et al., supra note 80, at 9. Videoconferencing often does not show or obscures the non-verbal gestures and cues of attorneys or defendants. 111 Ratnasingham, supra note 15, at 315. Deterrence-based trust is grounded in the fear of punishment and emphasizes utilitarian considerations to maintain a relationship. Knowledge-based trust is where knowledge of the other person (attorney to a client) and the information that is passed between the two builds trust. And Identification-based trust is based on empathy and common values between two people (attorney and client) where this trust revolves around a common task such as a court hearing or trial.

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Trust can be difficult to observe and measure as operationalizing the variables can be

problematic.112 It can be difficult to build trust via videoconferencing due to a lack of prior

familiarity with each other, prior shared experiences or without expectations of a common

future.113 Low levels of trust can be attributed to: 1) the general uncertainty of the users in

the technology (videoconferencing), 2) the lack of face-to-face introductions, 3) the lack of

enthusiasm and initiative among the parties and, 4) the unpredictability of communications

between the users.114

The quality of communication between people increases the learning capacity that

comes from shared information, which can contribute to a faster and stronger development of

trust.115 A poor quality video can create artificial cues associated with lying, detrimental to

promoting trust.116 Videoconferencing systems reduce levels of trust as compared to face-to-

face meetings.117 This research has found that people exhibit more cooperative behaviors

and have greater trust in their interactions when communicating face-to-face than in a

mediated environment.118 Videoconferencing also inhibits trust by distorting conversational

turn-taking cues affecting the normal flow of conversation.119

112 Id. 113 Ratnasingham, supra note 15, at 316-317. 114 Id. at 317. 115 Bekkering & Shim, supra note 16, at 105. 116 Id. A slow signal makes it appear that that the speaking is hesitating, and hesitation in answering is generally considered a sign of lying. 117 Nguyen & Canny, supra note 78, at 1466. In face-to-face meetings, each participant in the meeting has their own unique perspective defined by his position. Videoconferencing usually only has one camera and that single view is shared by all participants. No matter what angle the participants take, they all take on a shared and perhaps incorrect perspective, defined by the position of the camera. 118 Id. The authors highlight issues of perspective invariance and the Mona Lisa Effect detailing the effect of Mona Lisa’s eyes following you as you walk around. 119 Bekkering & Shim, supra note 16, at 105. The authors note the subtleties of tone of voice or eye contact involved in conversational turn-taking.

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Trust in electronic communications reinforces the prospect of continuity in a

relationship and a commitment to extend relationships.120 The more virtual a relationship,

the more the people involved in the relationship need to meet in person. Videoconferencing

requires trust to make it work. Research shows that technology alone is not enough.121

Should videoconferencing lead to trust being broken between attorney and client, extra

attention will then need to be paid to repair the situation, ideally with face-to-face contact.122

120 Id. at 313. 121 Id. at 316. 122 See Bos et al., supra note 96, at 292.

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CHAPTER THREE – THEORIES OF COMMUNICATIONS VIA VIDEOCONFERENCING

Theorists are examining the possible negative effects of videoconferencing to help

clarify how people communicate, form working relationships, establish trust, and make

informed decisions. How information is assessed, they theorize, depends on how

information is gathered. Some of these theories guided the research design of this thesis by

the types of variables used from the analyzed data set as related to the impact of

videoconferencing on attorney-client private communications in the courtroom. In addition,

these theories guided the types of questions asked of the attorneys interviewed to shed light

on such impact.

Emergent Meaning Theory

Emergent Meaning Theory assesses how a listener considers various elements of a

speaker’s story – the story itself, the level of trust between speaker and audience, the

effectiveness of the message, the speaker’s credibility, and so forth – to create

understanding.123 In videoconferencing, largely unnoticed attributes of the medium

contribute to the quality of communication.124 The medium often over or under-emphasizes

certain content on an adjudicator without the adjudicator being aware. Video technology,

according to this theory, can never truly capture all of the physical and psychological cues

123 Federman, supra note 81, at 435. Some of the elements that contribute to impacts on videoconferencing might include: 1) the relative cultural conditioning of television itself, 2) participants’ conditioning relative to video camera use in surveillance, 3) the effects of distortion in experiencing non-verbal communications, or those induced by shifted eye-contact (through non-alignment of viewing screen and camera angle), 4) the effects of a video-mediated environment may have on encouraging or detecting deception and, 5) the effects of the participants’ relative imbalance in experience with videoconferencing, among other secondary and tertiary ground influences. 124 Marshall McLuhan, Understanding Media: The Extensions of Man, New York: McGraw-Hill (1964); See S. R. Ellis, Videoconferencing in Refugee Hearings: Report to the Immigration and Refugee Board Audit and Evaluation Committee, (Unpublished report) Ottawa: Government of Canada (2004).

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that humans innately understand or consider when forming an opinion about a certain

person.125

Video is two-dimensional, while reality is three-dimensional. Camera angles,

lighting, and background can either emphasize or minimize certain characteristics that people

consider when communicating.126 Emergent Meaning Theory maintains that

videoconferencing interferes with the “emergent meaning” that users apply to the quality of

exchanged information, and erodes the trust necessary to an attorney-client relationship. The

theory attempts to shed light on the medium through the following questions: (1) What does

videoconferencing (the technology) make better (enhance) in the attorney-client dynamic in

the courtroom? (2) What does videoconferencing (it) change or replace in the attorney-client

dynamic in the courtroom (make obsolete)? (3) What does videoconferencing bring back

from the past that may have been missing from the attorney-client dynamic in the courtroom

(it retrieve)? (i.e. a closer, more personal relationship. More frequent contact between

attorney and client, etc.) (4) What do you see videoconferencing in the future with respect to

the attorney-client dynamic in the courtroom (becoming does it become when pushed to

extremes)? Videoconferencing makes it harder for people to detect sincerity or deception,

appreciate cultural differences, or understand non-verbal cues than if the applicant appeared

before the court in person.127 If the medium has such a negative impact on people’s

125 Id. 126 Federman, supra note 81, at 436. The awareness of these effects is the first step in mitigating the unperceived influences of videoconferencing. But awareness alone is not sufficient to eliminate them. Steps must be taken to alleviate or eliminate them. 127 Id. The author states that in some instances these negative issues may not be eliminated from human cognition.

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perceptions and communications, videoconferencing will likely interfere with attorney-client

communications.128

Information Integration Theory Information Integration Theory argues, conversely, that videoconferencing may have

little impact on attorney-client communication in the courtroom.129 This research, backed by

previous studies, indicates that other factors may be more important than videoconferencing

in communicating and formulating opinions.130 This theory assumes that people use a

process to integrate information, form impressions and communicate ideas.131 Most of the

research relevant to Information Integration Theory suggests that communication and social

judgments, whether towards individuals or groups, are the result of a weighted average of the

different sources of available information.132 All pieces of information are not treated

equally; some are given greater “weight” in forming relationships and opinions.

128 Id. at 435-436. Videoconferencing, as well as technology in general, modifies perceptions and manipulates the processes of cognition, and changes the behaviors and interactions with others. The documented negative issues with videoconferencing and its impact on private attorney-client communications is reason enough to slow or stop the process until it can be further studied to alleviate the negative impacts. 129 Orcutt et al., et al., Detecting Deception in Children’s Testimony: Factfinders’ Abilities to Reach the Truth in Open Court and Closed-Circuit Trials, 25:4 L. HUMAN BEHAVIOR 339, 366-367 (2001). (The video in this study was not interactive but it does highlight the negative perceptions that the viewers had of subject on video. Because of these negative issues it was the conclusion of the research that such technology may not be in the best interest of the witness on video.). 130 Id. 131 See Ebbe B. Ebbesen and Vladimir J. Konecni, Decision Making and Information Integration in the Courts: The Setting of Bail, 322: 5 J. PERSONALITY AND SOC. PSYCHOLOGY 806 (1975). (“This theory is primarily concerned with the process that allows people to combine or integrate social information to form impressions and make decisions.”). 132 Id. at 807. Information integration theory employs an averaging model to help guide the analysis and interpretation of the results.

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Ebbesen and Konecni used variables to represent the subjective value of each type of

information a judge uses to communicate and make decisions in the courtroom. The authors

chose five key variables and the types of information most important to a judge’s

decisions:133 (1) the severity of the crime; (2) a defendant’s prior record; (3) the defendant’s

local ties to the community; (4) the recommendation of the district attorney and (5) the

defense attorney’s recommendation.134 It was also noted in the study that both prosecutors

and defense attorneys often relied on these factors to support their recommendations. The

authors make the assumption and attempt to test that “… judges would use some type of

averaging process to put together the various types of information that they have available

when setting bail…”135 Their research concluded that the five variables were the most

important factors judges consider in determining levels of trust. If these factors most

strongly impact communication and a judge’s conclusions, then videoconferencing would

likely have little or no impact on their perceptions of trust (i.e. bail setting).

Communication Theories

Communication theories attempt to explain how information is conveyed and

interpreted. Claude Shannon wrote a pillar of these theories, the Information Theory of

Communication.136 This theory asserts that “noise” (defined as anything that interrupts or

133 Id. at 808. The primary purpose of the research was to determine how people, in this case a judge, integrates information to arrive at decisions. 134 Id. at 812. “There were two purposes of this study. The first was to determine whether the same factors that were important in the judges’ simulated decisions would prove important in their actual bail decisions. The second was to determine whether or not the same integration model used to explain the results from the full factorial design could be generalized to actual bail hearings.” 135 Id. 136 See C. E. Shannon, A Mathematical Theory of Communication, BELL SYSTEMS TECH. J. (1948); reprinted in MOBILE COMPUTING AND COMM. REV. Vol. 5, No. 1. 3. (Shannon views a major problem with

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distracts a speaker and listener), is the enemy of information.137 One example is illustrated

by having someone read a book in a quiet room, in a noisy room, and at a music concert and

then quizzing the reader on their understanding of the text. The theory asserts that as the

amount of environmental noise increases, the amount of information received is reduced.

Noise can also be physical or semantic.138 Physical noise can include background talking,

loud music, bad weather, traffic, construction work, etc. Semantic noise refers to the

distortion or misunderstanding in the meanings of words between the speaker and listener,

usually based on false assumptions, that results in a breakdown of communication.139

The insidious nature of this type of communication breakdown means that the

participants often do not realize that there has been a breakdown, or realize it very late in the

interaction.140 In the videoconferencing context, “noise” may come from the environment,

from poor technology, from poor training of court personnel, or from the lack of knowledge

on the use of videoconferencing, and result in less capacity for the users to understand the

information transmitted.

Shannon’s Information Theory of Communication is broken-down into eight

components:

communication, especially through an artificial medium such as videoconferencing, is that of reproducing a message sent from one point to another. The danger of confusion of the message from the person sending the message (the Source) to Receiver is high the more problematic the medium. The negative issues associated with videoconferencing impede communication and interferes with the attorney-client relationship. 137 Davis Foulger, Models of the Communication Process, http://davis.foulger.info/research/unifiedModelOf Communication.htm. 2-3 (2004). 138 Id. 139 Id. 140 Graham Williamson, Communication Theory, http://www.speech-therapy-infromation-and-resources.com/communication-theory.html 2 (visited 2012).

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1. The Source – the speaker sending the message;

2. The Message – sent by the Transmitter (speaker) and received by the Destination

(listener/audience);

3. The Transmitter – two layers: the sound (voice) and (body) of the speaker, and the

method used to convey these sounds and gestures, either face-to-face or via camera and

microphone;

4. The Signal – the Message from the Source that flows from the two layers of the

Transmitter;

5. The Channel – how the Signal is carried, perhaps via the Internet or the hardwires that

carry the video;

6. The Noise – ancillary signals that obscure or confuse the Signal;

7. The Receiver – that which receives the Message from the Source. In the example of

videoconferencing, it is the video monitor from the Transmitter.

8. The Destination – the listener/audience who hears/receives the Signal.141

Videoconferencing can be illustrated within the Information Theory of

Communication. The signal (private communications), between the source (defendant) and

the receiver (attorney), is distracted by the transmitter (video camera and microphone), or the

“noise” (poor quality of videoconferencing, or the operator’s lack of training) negatively

affects the defendants’ quality of justice.

Other communication studies have focused on issues (including videoconferencing)

that impact attorney-client communications. Some studies conclude that attorney-client

141 Fougler, supra note 123, at 2-3. The Destination can be either an individual or multiple people in an audience or crowd.

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communications via video have a great deal of ambiguity.142 Another study examined the

influence of closed-circuit television (CCTV) in court and its ability to communicate

effectively and came to an ambiguous conclusion.143 This study explored a fact-finders’

ability to determine (1) deception or non-deception of a child’s testimony via CCTV versus

traditional trial settings, and (2) the influence of viewing deceptive and non-deceptive

testimony on a person’s rating of witness’ credibility and defendant’s guilt.144 Researchers

found that there was no support for the idea that fact-finders reach the truth better from

children who testify in open court as opposed to CCTV.145 Unlike videoconferencing, CCTV

is not interactive – it is a visual medium where a person’s ability to determine deception is

tested.

Low credibility is also associated with videoconferencing, 146 because non-verbal

cues are unavailable or harder to read.147 For videoconferencing to work between an attorney

142 Orcutt et al., supra note 115, at 365-367. This study highlights the problematic issues associated with this technology. Issues of accuracy, believability, consistency, confidence, attractiveness, and intelligence are all detailed in this research. These issues in the context of private communications between an attorney and their client via videoconferencing, underscore the dangers of how such communication can be diminished to the point of failure. 143 Id. Orcutt emphasizes that context is a key element in this research. These issues (accuracy, consistency, confidence, attractiveness, and intelligence) greatly influence results. This relates strongly with videoconferencing and how it is currently being used in courtrooms. Understanding this and making appropriate adjustments to videoconferencing technology is needed. 144 Id. at 368. 145 Id. The use of CCTV is illustrative of the challenges of the use of videoconferencing. Both offer advantages to the court but the disadvantages that are carried by the defendant are little investigated or overlooked in the name of efficiency. 146 Torres, Preskill & Piontek, supra note 17, at 178. 147 Teoh et al., supra note 62, at 313. Participants stated that they were dissatisfied with videoconferencing because it did not provide enough visual information about the people they were conferencing with. They felt that being able to clearly see each other’s’ body language was an essential aspect of face-to-face meetings that were absent in videoconferencing.

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who is physically in court and a defendant in prison, some basic safeguards must be

implemented.

The introduction of videoconferencing should be gradual – allowing time for law

enforcement, judges, attorneys, and court administrators adjust to the new technology and to

implement fair and effective procedures.148 Videoconferencing can have a place in the legal

process, but must be employed so as not to diminish trust between parties.149 Research has

shown that video, interactive or not, can lead to a negative bias.150 It clearly shows that there

are issues with defendants being able to clearly and privately communicate with their

attorneys, which must be established.151

Research also suggests that videoconferencing may be more useful when participants

have a pre-existing relationship.152 With defendants who are represented by public

defenders, this is seldom the case.153 Defense attorneys and their clients need to discuss

important decisions concerning plea bargains, evidence, and basic legal strategy prior to

148 Philibosian et al., supra note 20, at 22. This research admits that there are problems with the technology and its implementation. It recommends that more thinking needs to be done to capitalize on the capabilities of videoconferencing and that all participants must work together to identify the problems and mutually work out solutions. 149 Nguyen & Canny, supra note 78, at 1467 and 1474. As stated earlier (supra see note 132) where research states that the only way to alleviate the negative effects of videoconferencing is to have multiple cameras and multiple viewing monitors, such systems also need: 1) distances of videoconferencing equipment must mimic that of face-to-face meetings, 2) image quality must be good enough for the perception of precise eye contact and, 3) projectors must be placed so they are comfortable for prolonged meetings. 150 Goodman et al., supra note 76, at 170. The use of closed-circuited television (CCTV) was associated with a negative bias. 151 Id. 152 Toeh et al., supra note 64, at 313-314. A videoconferenced hearing is often the first meeting between a client and their attorney, especially a public defender or court appointed attorney. 153 Id. First contact between an attorney and a client is critical to the establishment of trust and cooperation. Trust and cooperation are the cornerstone of a proper attorney-client working relationship and to the adversarial process.

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appearing in court.154 Personal meetings are better for hashing out case strategies, fact

gathering, and basic legal tactics (such as pleas and the ramifications of such decisions).

Studies clearly show that negotiation and intellective tasks are better performed face-to-

face.155 Researchers question some of the basic procedures that happen at many

videoconferenced hearings. In some jurisdictions, it is mandatory that defense attorneys be

physically present with their client during videoconferenced hearings.156 Other studies state

that videoconferencing cannot eliminate the need to transport defendants to the

courthouse.157

Video conferencing is a poor substitute for in-person hearings.158 A courtroom is

more than a mere location. The setting is an important element in the constitutional

conception of American justice, contributing to a dignity essential to the judicial process.159

John Rawls, in A Theory of Justice, maintains that fundamental fairness and procedural

justice rely on rules that are reasonably expected to be to everyone’s advantage.160

Excluding illegally seized evidence in court, for example, is a rule that protects society’s

rights and benefits everyone by declaring government must follow its own rules. If a rule

154 Id. 155 Id. at 314. A client-lawyer communication, especially during initial meetings and pre-trial hearings involve negotiation and intellective interactions between client and lawyer. 156 Philibosian et al., supra note 20, at 20. Indeed, the jurisdiction in question in the article is one where physical presence of a defense attorney is a mandatory condition of the Public Defender’s participation in videoconferencing. 157 Webster, supra note 85, at 6. This evaluation assumed that the defense attorney and the client were both at the jail facility. 158 Grant, supra note 39, at. 5. 159 Davis, supra note 22, at 28. The author states that clients, via videoconferencing, do not behave the same as those participating in person in a courtroom due to the nature of the technology. The author attributes this to a lack of dignity, decorum, and respect of videoconferencing versus a traditional courtroom. 160 John Rawls, A Theory of Justice 110-112 (1971).

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does not benefit everyone, it is likely that the rule is unfair.161 This does not imply that

everyone must benefit equally for a rule to be considered fair, but only that everyone benefits

in some degree. A set of rules, properly followed, make up a process.162 Nowhere are rules

and processes more important than in a legal setting.

The some believe the American criminal court system is a near-perfect example of a

people’s attempt to enact a set of rules that depend upon fundamental fairness and procedural

justice. This process-driven system strives for a desired outcome: that a defendant is found

guilty only if that defendant is found to have committed that crime through strict adherence

to the legal process.163 Strict adherence to the legal process, as well as an expectation of

reliability on the part of the society instituting that process, is necessary to ensure

consistency in all proceedings.164 It is through that consistency that the court system attains

correct outcomes and legitimacy.165

A defendant’s speech has personal, dignitary, and democratic import beyond being

instrumental to a criminal case.166 His or her speech is perhaps the quintessential example of

an individual defending his or her life and liberty against the state.167 Only the government

can bring a criminal case or imprison and execute an individual. This extraordinary power 161 Rawls at 110-112. 162 Id. 163 Id. The legal process (and the strict adherence to procedure) gives legitimacy to the criminal justice system. Without adherence to fair, just rules, the process breaks down distrust of authority breeds through society. Fair and consistent rules are needed to legitimize the system. The danger of videoconferencing is that it has not been researched for its fairness to the defendant. 164 Id. The dignity of the defendant must be maintained as well as being fair and consistent. Human dignity must be an element of the criminal justice system as well as due process and equal protection. When this is lost, it erodes the legitimacy of the system. Videoconferencing has a danger of dehumanizing defendants to an extent that it may further compromise a system that is already viewed with a jaundiced eye. 165 Id. 166 See Natapoff, supra note 4, at 1450. 167 See Id. at 1451.

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calls for strict adherence to legitimate rules. Poor defendants, in addition to their

socioeconomic and educational disadvantage, are often represented by public defenders or

low-paid attorneys who lack the resources to fully interview and interact with their clients –

adding to an often poor client-attorney relationship.168 Proceedings conducted by

videoconferencing raise a number of concerns that have not been fully explored, particularly

in light of the growing body of scientific evidence that shows video-mediated personal

interactions differ significantly from in-person interactions.169

Many legal scholars believe that videoconferencing may cause defendants to

underestimate the importance of the proceedings. Joseph Goodwin, a judge in the southern

district of West Virginia, believes that no video monitor can exert the same psychological

impact as does a person present in the courtroom. A judge in robes presiding on the raised

bench over the proceedings, the witnesses, the attorneys, the families and spectators, the

flags, the seals, and the armed bailiffs are all elements of a courtroom that invest solemnity,

dignity, and seriousness. They are more than mere trappings. These elements are designed

to impel people to reflect on the legal process and their responsibilities to the law and greater

society. Both the form and the process are pillars that support the structure of the criminal

justice system just as ceremony and ritual reinforce religion practices.170

Judge Goodwin further states that videoconferencing may taint the public’s

perception of a criminal court’s integrity. The court’s moral authority, he says, rests on the

168 See Id. at 1453-1454. 169 Haas, supra note 2, at 61. 170 Ashdown & Menzel, supra note 11, at 68 (quoting a letter from Judge Joseph Goodwin, District Court Judge for the Southern District of West Virginia, to Judge Robin J. Cauthron, Chair, Defender Services Committee (Sept. 6, 2001).

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perception that its proceedings are humane, fair, and just.171 The criminal court process

depends on this perception, and should not take this confidence for granted. Any practice

that threatens to demean the dignity of defendants will likely reduce respect for the court and

imperil the criminal justice system. Given the mixed conclusions of the research on

videoconferencing, more research is necessary to determine if the medium has an impact on

effective, private communication between attorney and defendant and whether that affect, if

any, results in the lack of adequate legal representation.

Drawbacks of Videoconferencing

The first drawback of videoconferencing is the lack of access or experience with the

technology.172 Often, court personnel do not have experience with videoconferencing

equipment. The communication problems this creates in turn change the behavior of

participants in the courtroom. It becomes difficult for defendants in detention to see, hear,

and understand what taking place in court is; they may also be impressed or intimidated

about being “on TV,” and they may alter the way they would normally behave.173 Not all

people are comfortable with communicating via videoconferencing.174 One judge noted that

some defendants are so unaccustomed and uncomfortable with videoconferencing or

speaking on camera that they appear to act “like zombies.”175

171 Id. Communication problems compromise the legitimacy of the courtroom. Any impairment can cause mistakes. Videoconferencing is supposed to enhance communication, when it does not it causes problems it is detrimental to the system. 172 Torres, Preskill & Piontek, supra note 17, at 198-199. 173 Binder, supra note 45, at 1. 174 Torres, Preskill & Piontek, supra note 17, at 209. 175 Davis, supra note 22, at 27. Conversations via videoconferencing are difficult and problematic especially in situations that are emotionally charged and filled with anxiety.

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A second drawback is the failure of equipment or technical problems associated with

videoconferencing,176detrimental to effective communication. For example,

videoconferencing systems are notorious for their spatial distortions.177 Many systems are

low quality and offer little or no interaction between client and lawyer, leading to reduced

trust and obvious negative outcomes.178 Inferior, problematic videoconferencing yields

inferior, problematic communication.

A third drawback is videoconferencing’s inability for attorneys and clients to set an

agenda in advance.179 Defense attorneys and clients must be able to meet ahead of time to

discuss and strategize the issues of their case; this is not always the case in busy or

disorganized courts. Sometimes defense counsel is appointed just before the hearing. The

information exchanged before a hearing or trial impacts what happens afterward. The

defendant may, for example, be able to point out errors in the record or provide some

illuminating piece of evidence that will assist his counsel. Often, private communication

must occur immediately (as in a fast-paced bail hearing). In this context, separating the

defendant from counsel via videoconferencing can infringe on the Sixth Amendment right to

counsel.180 In a 2010 study on the effect of videoconferencing on bail hearing outcomes,

researchers found that there were “extremely limited” opportunities for private attorney-

176 Torres, Preskill & Piontek, supra note 17, at 198-199. 177 Nguyen & Canny, supra note 78, at 1465. The authors state that the only way to alleviate the negative effects of videoconferencing is to have multiple cameras and multiple viewing monitors available for all participants. 178 See Corbitt et al., supra note 68, at 6-7. 179 Torres, Preskill & Piontek, supra note 17, at 198-199. 180 Diamond et al., supra note 24, at 881-882. The author highlight that during bail hearings judges are required to make a determination on a defendant’s trustworthiness and character concerning the likelihood of a defendant’s returning for trial if released and that the opportunity to physically observe a defendant would add useful information to a judge in making a determination.

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client communications.181 The study’s results showed that the average bond amounts rose

substantially following the introduction of videoconferencing at bail hearings and that there

was a steady rise in bond levels over time.182

Yet another detriment of videoconferencing is a reduced opportunity for full

participation among all users.183 Communications in the courtroom, whether privately or in

open court, are complex. Studies show that the more complex the communication in court,

the less effective the videoconferencing. Certainly, any medium that inhibits confident and

consistent testimony between attorney and client must be viewed with caution.184 It is clear

that the larger the audience, the more negative issues emerge with videoconferencing.185

Studies show that videoconferencing overloads the cognitive processing of participants

involved in a complex task and biases their perceptions of one another.186

Videoconferencing does not present the same opportunity for mutual understanding

and trust building unique in face-to-face meetings.187 Via videoconferencing, an attorney

may not be able to gauge the emotional state of the client.188 An attorney cannot personally

comfort their client by placing a hand on an arm or shoulder or defend their client by

standing beside them before the court.189 In some jurisdictions, videoconferencing provides

181 Id. at 884-885. 182 Id. at 897-898. 183 Torres, Preskill & Piontek, supra note 17, at 198-199. 184 Goodman et al., supra note 76, at 169. 185 Fetterman, supra note 79, at 25. The more people involved in the videoconferencing process, the more issues that can arise. Multiple people require multiple points of view or a wider angle will result in a diminution of detail in each participant. 186 James H. Watt et al., Asynchronous Videoconferencing: A Hybrid Communication Prototype, Proceedings of the 35th Hawaii International Conference on System Sciences, 3 (2002) (This paper reviews the literature on the costs and benefits of synchronous and asynchronous interactions.). 187 Torres, Preskill & Piontek, supra note 17, at 198-199. 188 Poulin, supra note 12, at 1130. 189 Id.

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no proper opportunity for meaningful, private communication between attorney and

defendant.190 Electronic communication often lacks security and reliability.191 Some courts

provide a separate telephone line for privileged communication between attorney and client,

but then nonverbal cues are eliminated.192 Many attorneys experience videoconferencing by

speaking with the client by phone the day before the court date, with no means for attorney-

client private communication on the day of the hearing.193 Even on a private phone line,

extemporaneous communication between attorney and client via videoconferencing is

difficult.194 If the attorney needs to discuss a private point with the client (speaking from a

remote location) before or during the hearing, everyone in the courtroom would have to

leave.195 Attorney-client confidentiality renders videoconferencing cumbersome and

impractical should the courtroom need to be cleared for every question.196 It is worth noting

that the court deems “private” any attorney-client communication, and so any party could not

190 Davis, supra note 22, at 27. The author highlights four problems of videoconferencing: 1) the authority for defendants to appear via videoconferencing, 2) the Six Amendment right of confrontation, 3) the Sixth Amendment right to effective assistance of counsel and, 4) due process rights under state and federal constitutions. 191 Ratnasingham, supra note 15, at. 313. The author defines trust as “the willingness of a party to be vulnerable to the actions of another party based on the expectation that the other will perform a particular action important to the trustor…” This can be a working definition of the attorney-client relationship where a defendant is vulnerable to the actions of their attorney with an expectation that their defense attorney will effectively represent and inform them throughout the representation. 192 Poulin, supra note 12, at 1129. 193 Binder, supra note 45, at 1. The author details the only way he could privately speak with his client during the hearing was to request that he judge clear the entire courtroom. 194 Poulin, supra note 12, at 1129-1130. The defendant cannot use nonverbal communication to interact with their defense counsel. Similarly, defense counsel will have difficulty giving advice. The loss of non-verbal communication on the attorney/client relationship can be significant. 195 Binder, supra note 45, at 1. Such procedures may lead to a chilling effect on attorney-client communications by making them so cumbersome that attorneys are reluctant to use them for fear of slowing the process down to a point where the other participants (judges, clerks, opposing counsel) become exasperated. 196 Id.

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use the communication in any way or agency, since the security of the transmission was in

question.197

Lastly, users unfamiliar with videoconferencing communicate less effectively and

could harm their cases by projecting themselves in a negative light.198 As noted previously,

child witnesses who testified via Closed-Circuit Television (CCTV) were viewed as less

believable that those children who testified in person, despite the fact that they testified more

accurately on TV.199 Surprisingly, witnesses on video were also viewed as less attractive,

intelligent, accurate, and credible.200 Attorneys may want to limit the use of CCTV due to the

negative biases shown toward witnesses.201 We must apply the lessons we have learned

from the CCTV study when considering the effects of videoconferencing.

Pros of Videoconferencing

Proponents of videoconferencing claim that the medium has no adverse

consequences, citing several studies.202 In one study, doctors delivered cancer or genetic

counseling information by video and had as much success as when they delivered the

information in person. This result was explained because the information was delivered

197 Id. 198 Torres, Preskill & Piontek, supra note 17, at 198-199. 199 Goodman et al., supra note 76, at 199. Any warping of perceptions in communications would detrimentally affect attorney-client communications. 200 Id. 201 Id. 202 See Jordanna Joaquina Coelho et al., An Assessment of the Efficacy of Cancer Genetic Counseling using Real-Time Videoconferencing Technology (Telemedicine) Compared to Face-to-Face Consultations, 41 EUR. J. CANCER 2257, 2259-2260 (2005). (This study concludes that videoconferencing is effective for providing information in a doctor-patient relationship. This type of communication differs from attorney-client communication in the courtroom in obvious ways. The fast pace of the courtroom and the adversarial nature of the proceedings are the more prominent differences.).

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quickly, thus lowering the anxiety of the patient. It does not mean that videoconferencing

produced the same result.

Another study claims that contact between people via videoconferencing builds trust,

in the absence of any other contact at all.203 Certainly, some contact is better that little or

none when it comes to imparting information. Another study states that jurors were able to

predict deception in a child witness on video as often as personal testimony. This study did

not involve interactive video but a one-sided taping of testimony, involved children and not

adults, and involved witnesses and not clients represented by counsel.204

None of these studies cited by proponents of videoconferencing involved or

considered the special relationship between attorney and client.205 Counseling medical

patients is different from an attorney delivering information to a client, where interaction is

necessary to develop an effective trial strategy. A conference between attorney and client

involves two-way communications; as a patient is often in shock over a diagnosis or not at

their best, a doctor delivering a prognosis to a patient is often a one-way communication.206

Attorney-client communications and doctor-patient communications are a different dynamic.

203 See Dominic Thomas and Robert Bostrom, Building Trust and Cooperation through Technology Adaption in Virtual Teams: Empirical Field Evidence, INFO. SYSS. MGMT. 25:45 45, 51-54 (2008). (When traditional face-to-face meetings are not possible due to cost and time required for travel, business people using videoconferencing can regain some of the lost connections and trust through technology adaption and specific management techniques. The technology adaptions included better training and equipment to facilitate the task and the management techniques included a more cooperative model to establish trust and integrity among the participants.). 204 Holly Orcutt supra note 115, at 365-367. This research found participants that observed videoed witnesses were able to discern the truth. But the study also found that videoed witnesses (children in this study) were viewed as less accurate, believable, consistent, confident, attractive, and intelligent. 205 Id. 206 Id.

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CHAPTER FOUR – LEGAL ANALYSIS

Legal Background

Reflecting upon the evolution of the relationship between defense attorney and

defendant is important when assessing the current impact of videoconferencing in the courts.

It is a protracted story of the right for a defendant to an attorney in a criminal case, the

defense attorney is assigned, the attorney-client relationship and communication begins, and

the ideally the relationship is effective. The right to defense counsel is all important, and has

a long history before it emerged in its current, mature form.

That an accused shall have assistance of counsel for his defense was first articulated

in the Sixth Amendment to the Constitution in 1791. At the time it was argued that the

Sixth Amendment guaranteed the right of a person to retain private defense counsel, not the

right to have counsel provided by the government. It was also argued that the Constitution

only applied to the federal courts (i.e., to the states). The right of every citizen, at both state

and federal levels, to have defense counsel was fleshed out over the next two centuries. The

most important developments during this time were the adoption of the Fourteenth

Amendment and several Supreme Court decisions in the middle of the twentieth century,

culminating with the seminal case of Gideon v. Wainwright in 1963.207 These events must be

reviewed for a full understanding of the modern right to counsel.

The Fourteenth Amendment was adopted after the Civil War in 1868, and states in

part, “[n]o State shall … deprive any person of life, liberty, or property without due process 207 J. J. TOMKOVICZ, THE RIGHT TO THE ASSISTANCE OF COUNSEL (2002). “[T]he right of one charged with crime to counsel may not be deemed fundamental and essential in some countries, but it is in ours.” See also Gideon v. Wainwright 372 U.S. 335 (1963). It must be noted that in pretrial procedures the right to counsel, including access to that counsel, is absolutely necessary in preserving the fundamental fairness in legal proceedings, especially criminal proceedings.

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of law.” The guarantee that the states must provide “due process of law” to all citizens

would later be interpreted by the Supreme Court as the rationale for extending the right to

counsel for all defendants accused of crimes in state courts.208

The next significant event that empowered the right to counsel argument is the

Supreme Court decision in Powell v. Alabama in 1932.209 The facts centered on an

altercation between black and white youths traveling by freight train in Alabama.210 Two

white girls on the train were raped, and black youths were arrested and charged.211 The black

youths could not afford private counsel, and a rape conviction potentially carried the death

penalty.212 Public counsel was appointed to the defendants on the same day that the trial

began.213 The trial itself was conducted in a single day, and subsequently all the defendants

were convicted and sentenced to death.214

The Alabama Supreme Court subsequently affirmed the death penalties. On appeal,

the Supreme Court held that the defendants did not receive their constitutionally guaranteed

right to counsel in any meaningful way, were denied their right to due process of law under

the Fourteenth Amendment, and the case was remanded.215 This path-breaking case

established that some defendants in state courts have the right to defense counsel and, if

208 Id. 209 “In light of the . . . ignorance and illiteracy of the defendants, their youth, the circumstances of public hostility, the imprisonment and the close surveillance of the defendants by the military forces , the fact that friends and families were all in other states and communication with them necessarily difficult, and above all that they stood in deadly peril of their lives . . . we think that . . . the failure of the trial court to make an effective appointment of counsel was . . . a denial of due process within the meaning of the Fourth Amendment. Powell v. Alabama 287 U.S. 45, 65 (1932). 210 Id. 211 Id. 212 Id. 213 Id. 214 Id. 215 Id. at 88.

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necessary, to have defense counsel provided by the government.216 Powell helped to evolve

the constitutional right to assistance of counsel.

In 1938, in Johnson v. Zerbst, the Supreme Court expanded the right to counsel to

include indigent federal defendants.217 In this case, two Marine Corps enlistees were charged

with possessing and passing counterfeit money. On the same day the defendants were

notified of the indictments, they were arraigned, tried, convicted, and sentenced to four-and-

a-half years in prison, all without assistance of counsel.218 In overturning this case, the

Supreme Court heavily relied on the reasoning of the Powell case. The Court reasoned that

any defendant in federal court who cannot afford counsel will be granted counsel, grounded

by the Sixth Amendment.219

Four year later, in 1942, the Court again clarified the boundaries of the right to

defense counsel in Betts v. Brady. The defendant, Betts, was indicted for robbery in a

Maryland state court.220 Betts, who could not afford an attorney, requested that the state

216 As far back as 1790 the United States Congress addressed the issue the right to counsel for indigent defendants. The Judiciary Act of 1790 required federal judges to assign counsel for death penalty cases where defendants asked for such representation. 1 Stat. 118 Sec. 29 (1790). See TOMKOVICZ, Supra note 206 at 25. 217 Zerbst relied heavily on the Powell case. It reiterated and strengthened the right to counsel expanding the right. Further this right was enshrined by Congress when it enacted the Criminal Justice Act of 1964, 18 U.S.C.A Sec. 3006A which provided that all indigent defendants in federal courts are entitled to appointed counsel as a matter of fundamental fairness. See Johnson v. Zerbst 304 U.S. 458 (1938). 218 Id. 219 TOMKOVICZ, supra note 206. 220 The Court began to articulate a standard for such cases and circumstances. It is clear that the courts were grappling with this issue and coming to terms with how far such constitutional protections extended before practical considerations such as time and costs would be taken into consideration in the name of efficiency and judicial economy. See Betts v. Brady 316 U.S. 455 (1942).

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appoint him counsel. After the request was denied, Betts defended himself during the trial.221

He was found guilty and sentenced to eight years in prison.222

Betts appealed to the Supreme Court, which upheld his conviction and denied his

right to counsel. 223 The Court’s decision was based on four main points: first, that the states

had more flexibility in defining their own criminal processes than the federal government;

that the right to counsel did not always apply to every state case, particularly simple and

straightforward cases; that courts could identify whether cases were simple and

straightforward in a case-by-case “special circumstances” approach; and fourth, in cases

where a defendant could obtain a fair trial without defense counsel provided by the state, the

appointment of defense counsel would inflict an unnecessary and substantial financial burden

on the state.224

The case of Chandler v. Fretag further defined the right to counsel in 1954.225

Chandler, a middle aged African-American, was charged with housebreaking and larceny in

a Tennessee state court. 226The charges carried a sentence of three to ten years. Chandler

intended to plead guilty and did not ask for or hire a lawyer.227 During the trial, the judge

informed Chandler that he would also be tried as a habitual criminal because of three alleged

221 Id. 222 Id. 223 Id. 224 TOMKOVICZ, Supra note 206. 225 These extreme fact patterns highlight the context in which the court was operating. The speed and lack of legal formalities clearly show the continued need of the court to involve itself in these issues. The need for rules and court rulings to give clarity to evolving technologies, like videoconferencing are needed. See Chandler v. Fretag 348 U.S. 3 (1954). 226 Id. 227 Id. The road to due process sand equal protection has been a long and twisted path. The use of videoconferencing in the courts is the next chapter in this story. Research to inform the courts of its proper use is essential.

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prior felonies; this charge carried a mandatory sentence of life imprisonment with no

possibility of parole.228 Hearing this, Chandler then requested a continuance to obtain

counsel for the habitual criminal charge.229 The judge denied the request, impaneled a jury,

and proceeded with the trial.230 Chandler pleaded guilty to housebreaking and larceny and

was sentenced to three years in prison.231 Immediately after the sentencing, however, the

judge asked the jury for a decision on the habitual criminal charge.232 They found Chandler

guilty and sentenced him to life in prison with no possibility of parole. The entire process

took less than ten minutes.233

Chandler served three years for the housebreaking and larceny convictions but

appealed the habitual criminal conviction.234 The Tennessee Circuit Court and the State

Supreme Court upheld the life sentence.235 Chandler then appealed to the Supreme Court,

which overturned his conviction.236 The Court emphasized that Chandler did not ask for

appointed counsel but had asked for a continuance to obtain one on his own.237 The Court

further stated that regardless of whether Chandler would have been entitled to appointed

228 Id. at 5. 229 Id. When fair and proper procedures are denied the system is unfair. The facts of this case seem completely unreasonable today. Back in the day, they were merely the rules that were reasonably applied. In the future, videoconferencing may be viewed the same way. The rules must be analyzed and applied in a fair and reasonable way. 230 Id. 231 Id. The distinctions that the lower court applied to justify its application of the law to the facts are deemed unreasonable today. It is feared that videoconferencing is being viewed the same way today. The distinction between actual presence and virtual presence is critical. 232 Id. at 6. 233 Id. 234 Id. Videoconferencing may be looked at in the same light. The use of a new technology, without analyzing its effect on defendants, is improper. 235 Id. 236 Id. The testing of the effect of videoconferencing on trust, communication, and decision-making is essential to its proper use in the courtroom. 237 Id.

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counsel, his right to be heard through his own counsel is unqualified.238 Denying any

defendant any opportunity to obtain counsel is a deprivation of due process guaranteed under

the Constitution. Here the Court makes a clear distinction between the right to have

representation and the right to have representation appointed, concluding that every

defendant has the right to retain defense counsel. State courts only have to appoint counsel to

defendants who cannot afford one when the totality of the circumstances established that

defense counsel is necessary for a fair proceeding.239

The most significant decision by the Supreme Court concerning a defendant’s right to

defense counsel is Gideon v. Wainwright (1963).240 This case overruled the Betts case and

established an indigent defendant’s constitutional right to government-provided defense

counsel in state court. In this case, Gideon was charged in a Florida state court with breaking

and entering a pool hall with the intent to commit a misdemeanor therein.241 He requested

that the court appoint counsel, which the judge denied. Gideon was subsequently found

guilty and sentenced to five years in prison.242 He appealed to the Florida Supreme Court,

which also denied his request.243 The U.S. Supreme Court, however, granted his request for

238 Id. 239 TOMKOVICZ, Supra note 206. 240 The court stated that “ . . . any person haled (sic) into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is appointed to him.” Gideon v. Wainwright 372 U.S. 335 (1963). What made this ruling even more important and noteworthy was that it was applied retroactively forcing states to retry or release thousands of defendants. 241 Id. 242 Id. The use of videoconferencing may be a constitutional issue. Civil liberties guaranteed under the 5th and 6th amendments may be at issue. Research and analysis are necessary to make this determination. 243 Id.

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appeal and overturned twenty years of established law, including its own opinion in the Betts

case.244

The Court’s reasoning is clear and straightforward – that the civil liberties guaranteed

in the Bill of Rights are fundamental and essential to a fair trial. It further stated that the

Sixth Amendment guarantee of defense counsel is always essential for a defendant, whether

or not that defendant is charged with a state or a federal crime. In criminal courts, defense

attorneys are necessities – not luxuries – and defendants require trained representatives with

the requisite legal skill and knowledge to defend them against criminal charges.

The court justified its decision to overturn the Betts decision on several grounds.

First, because the “special circumstances” in Betts were vague and difficult to quantify,

offering little guidance for courts to apply the standard.245 In addition, the Gideon case was

decided during the civil rights era of the 1960s, correcting a number of inequities in

American society.246 And lastly, it became apparent that there were a large number of cases

where indigent defendants did not receive a fair trial without government-provided counsel

and that these numbers would to continue to grow.247 The only way to ensure fairness was to

provide defense counsel to all defendants who would face jail time if convicted.248

244 Id. At its hear due process is a guarantee of communication in the courtroom to ensure that the criminal justice system can dispense justice. 245 Id. at 345. 246 Id. Effective assistance of counsel implies proper communication between attorney and client. If videoconferencing gets in between client and counsel, it may be doing more harm than good and may be deemed ineffective assistance of counsel. 247 Id.. 248 TOMKOVICZ, Supra note 206 at 33-34.

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It must be noted that post-Gideon decisions clarify when indigent defendants receive

government-provided defense counsel.249 The Supreme Court cases of Escobedo v. Illinois

(1964) held that a defendant has the right to counsel during police interrogation; In Re Gault

(1967) they held that the right also applies to juvenile cases.250 Later, in 1970, the Court

found in Brady v. U.S. that the right counsel applied during plea bargaining negotiations. In

1972, their decision in Argersinger v. Hamlin held that any defendant charged with

misdemeanors is constitutionally entitled to appointed counsel if their charge carries a jail

sentence.251 In the same year, Morrissey v. Brewer held that it is in the court’s discretion

whether a defendant has the right to counsel at probation hearings.252

Videoconferencing carries the danger of becoming a convenient way of “processing”

defendants through the criminal justice system rather than affording them the time and

procedures necessary. Overworked and underpaid public defenders, working with increasing

numbers of people arrested on drug-related charges, have led to a search for ways to

249 Gideon at 339. 250 In Re Gault, 387 U.S. 1 (1967). It is interesting to note that the actual imprisonment standard creates an issue for judges. Here if an indigent defendant on a misdemeanor charge is denied counsel and found guilty, the judge cannot impose a jail term. If the judge did, a review would result in a finding of a constitutional violation and the conviction would be reversed. In situations like this, a judge is forced to consider a possible sentence before considering the guilt or innocence of a defendant. To avoid this situation many states have promulgated legislation requiring the appointment of counsel in all misdemeanor cases where a jail term is a possibility. 251 Argersinger v. Hamlin 407 U.S. 25 (1972). These cases show that understanding that effective representation is necessary for defendants at pretrial proceedings. Although trial can be deemed the most important stage in the legal process, most cases do not go to trial. Because of this pretrial proceedings are critically important. The right of a defendant to be able to privately speak to their counsel in the courtroom is necessary. 252 “ . . . the process should be flexible enough to consider evidence including letters, affidavits, and other materials that would not be admissible in an adversarial trial.” Morrisey v. Brewer 408 U.S. 471 (1972).

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“process” defendants faster while weakening their rights in the process. The use of plea-

bargaining has risen proportionally.

Plea bargaining, which started as an adjunct to the system, has become a predominant

mechanism for processing defendants. Ninety-four percent (94%) of state convictions are

the result of guilty pleas.253 This large number of defendants taking a deal and pleading

guilty has led to defendants’ not receiving their rights of proper representation and process.

Almost no venue spends enough time screening, defending, and adjudicating average

criminal charges to feel the full cost; in New York City, for example, 2011 statistics show

that fewer than 1 in 500 individuals charged go to trial.254 As videoconferencing becomes

more pervasive and routine, it is feared that statutes and rules will favor efficiency over a

defendant’s rights. Legislatures have drafted criminal statutes broadly and with high

mandatory penalties to give prosecutors the advantage they need to induce guilty pleas.255

Plea bargaining has become a tool that pressures innocent defendants to plead guilty to avoid

the risk of high statutory sentences.256 Critics do not want videoconferencing to be used as a

tool that favors the government at the expense of the accused. Plea-bargaining is often no

longer the “carrot” to lure a defendant to discuss a possible deal; it is the “stick” to scare a

defendant away from exercising their rights to due process and trial. In fact, defendants who

go to trial and lose often receive longer sentences than even the legislature or prosecutor

thinks appropriate, because the longer sentences exist on the books largely for bargaining

253 Missouri v. Frye 132 S. Ct. 1399, 1407 (2012). 254 Jenny Roberts, Gideon at 50: Reassessing the Right to Counsel, 70 WASH & LEE L. REV. 1089, 1093 (2013). 255 Rachael E. Barkow, Separation of Powers and the Law, 58 STAN L. REV. 989, 1033-1034, 61-62 (2006). 256 Id, 1034.

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purposes.257 Individuals who accept a plea bargain receive shorter sentences than less

morally culpable defendants but take a chance and go to trial.”258 Plea-bargaining fails to

serve the interests of the public, as it tends to undermine the legitimacy and accuracy of the

criminal justice system.259

Opponents of videoconferencing view the medium as favoring the prosecution at the

expense of the defendant. The documented issues and problems of videoconferencing, like

plea-bargaining, seem to concern undermining the legitimacy and accuracy of the criminal

justice system. With all its detrimental impact to the defendant, however, plea-bargaining is

now accepted as a mainstay of the system. “To a large extent … horse trading [between

prosecutor and defense counsel] determine who goes to jail and for how long. That is what

plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal

justice system.”260 Critics of videoconferencing do not want to see its negative impacts

institutionalized in a likewise manner and focus on using its efficiency in a way that

preserves defendant rights.

257 Id. There are too many parallels between other controversial processes (like the routine over use plea bargaining) and videoconferencing. Where videoconferencing starts as a help to the criminal justice system (like plea bargaining), it may become, with all its problems and issues, the system. 258 Id. 259 Id. Videoconferencing is growing and soon may be too large and too entrenched to make any easy, meaningful changes. 260 Missouri v. Frye at 1407. (See Scott & Stuntz, Plea Bargaining as a contract, 101 YALE L. J. 1909, 1912 (1992), See also Rachael E. Barkow, Separation of Powers and the Law, 58 STAN L. REV. 989, 1033-1034, 61-62 (2006).

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Examples of Videoconferencing in the Courts

Videoconferencing is most frequently used for a jailed defendant following their

arrest.261 At the onset of a criminal proceeding, the court, counsel, and defendant have

important functions. They must adhere to the rules of criminal procedure and the rules of

evidence, and maintain civil liberties under the Constitution. Communication with defense

counsel defines the parameters of a defense strategy and begins the relationship of trust

necessary for proper representation of counsel. 262 These initial attorney-client interactions

require a delicate feel for the defendant and the case.263 A defendant with information that

changes the dynamics of the case must be able to privately communicate with his attorney as

early as possible.

In many courts, videoconferencing is used to avoid transporting defendants to court

for certain proceedings. Case law on this subject extends back fewer than twenty years, but

sheds light on the use of video in the trial and non-trial stages of the criminal court process.

The following cases detail federal court decisions during the first appearance/arraignment,

testimony, and sentencing. Each stage is unique and has different consequence concerning

the impact of interactive video. During the pretrial phase, the impacts can be especially

important. Because most cases do not go to trial, pretrial procedures are especially impacted

by the determination of whether to reach a plea agreement and what the terms might be.

261 Id. 262 Id. Communication at critical stages in the criminal justice process is necessary for the adversarial system. The non-trial stages in the process are often just as important as the trial. 263 Id.

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Arraignment

In Valenzuela-Gonzalez v. United States District Court for the District of Arizona

(915 F.2d 1276 (9th Cir. 1990)), the court held that arraignments of an accused must take

place in open court, with the accused physically present.264 In this case the court cites the

Federal Rules of Criminal Procedure, Rules 10 and 43, as its basis for ruling. Rule 10 states:

Arraignment shall be conducted in open court and shall consist

of reading the indictment or information to the defendant or

stating to the defendant the substance of the charge and calling

on the defendant to plead thereto. The defendant shall be given

a copy of the indictment or information before being called to

plead.265

Rule 43 states:

(a) Presence Required. The defendant shall be present at the

arraignment, at the time of the plea, at every stage of the

trial including the impaneling of the jury and the return of

the verdict and at the imposition of sentence, except as

otherwise provided in this rule.266

The court did leave room to allow the Federal Rules of Criminal Procedure to be

construed more broadly in future decisions by allowing that “substantial compliance” with

Rule 10 might include interactive video. This allowed for future use of videoconferencing

264 See Valenzuela-Gonzalez v. United States District Court for the District of Arizona 915 F.2d 1276, 1280-1281 (1990). (Videoconferencing was proper absent a showing that the procedure was necessary as opposed to convenient. “Arraignment by closed circuit television constitutes a violation of Federal Rules of Criminal Procedure 10 and 43.” “Absent a determination by Congress that closed circuit television may satisfy the presence requirement of the rules, we are not free to ignore the clear instructions of Rules 10 and 43.”). 265 FED. R. CRIM. P. 10. 266 FED. R. CRIM. P. 43.

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as the technology becomes more prevalent. At present there have been no federal challenges

to alter the court’s stand on video arraignments.

Testimony

In Maryland v. Craig (497 U.S. 836 1990), the court reviewed the question of

whether the confrontation clause categorically prohibits a child witness from testifying

against a defendant in a child abuse case by one-way closed circuit television (CCTV)

separated from the defendant.267 The court found that such testimony did not violate the

confrontation clause as long as the prosecution shows a finding of “necessity” on a case

specific basis. In this situation, the court stated that Sixth Amendment rights must be

interpreted in the context of the necessities of trial and the adversarial process, and that a

defendant’s right to confrontation is not absolute. To deny confrontation, the court

articulated a two-part test that must be met: (1) to further an important public policy (such as

protecting children in a sexual assault case) and (2) where the reliability of the testimony

offered is otherwise assured (the child testimony is consistent and dependable).268 In the

Craig case, the court identified the protection of children as an important state interest. To

satisfy the second requirement of the test, the court stated the testimony was reliable if the

child witness was: (1) deemed competent to testify, (2) under oath, (3) the defendant, the

judge, and the jury were able to view the demeanor of the child witness through a video

267 See Maryland v. Craig 497 U.S. 836, 848, 852 (1990). (The Confrontation Clause reflects a “preference” for face-to-face confrontation at trial and that preference must give way to necessities of the case and public policy considerations. The physical and psychological well-being of child abuse victims at trial can qualify as such a public policy.). 268 Id. at 850. “That the face-to-face requirement is not absolute does not, of course, mean that it may be easily dispensed with.” The majority, in applying their reasoning, believed that it could be dispensed with.

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monitor during testimony and, (4) the defendant retained the opportunity for

contemporaneous cross-examination.269

The five to four decision of Craig sparked a strong dissenting opinion. In the dissent,

the four justices quoted the Constitution’s Sixth Amendment directly: “In all criminal

prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against

him.”270 To these Justices, “to confront” plainly meant to encounter physically, face-to-face.

The Justices also held that if this were judged to be a defect in the Constitution, it should be

amended by proper procedures, not by judicial pronouncement.271

The issue was further explored in Harrell v. Florida (709 So.2d 1364 (Fla. 1998)).272

In Harrell, the court held that the admission of a victim’s testimony via interactive video did

not violate the defendant’s right to confrontation.273 In this case, the victims were tourists

visiting the United States who was assaulted and robbed while on their way to the airport to

return home to Argentina. The court refined the two-part test articulated in the Craig case by

stating that the use of interactive video: (1) must be justified, on a case specific finding,

based on important state interests, public policies, or necessities of the case and (2) must

satisfy the three elements of confrontation, that is, the oath, cross-examination, and the

269 Id.at 844-846. 270 Id. at 861-862. The dissent states that majority indulges in mental gymnastics that make the “impossible plausible” by recharacterizing the Confrontation Clause as an abstraction of observation rather than physical presence. 271 Id. The dissent opined that the text of the Sixth Amendment is clear and meant to protect against, rather than conform to current beliefs that can qualify as a public policy. 272 See Harrell v. Florida 709 So.2d 1364 1998. 273 Id. at 1372. The Court recognized that there are costs associated with technological change and that it is incumbent on the judge to monitor problems that threaten the reliability defendant rights and court proceedings. Further, the Court is confident that, when properly administered, this technology will advance both access to and the efficiency of the justice system.

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observation of the witness’s demeanor.274 The current use of videoconferencing is (1) not on

a case specific bases and (2) the observation demeanor is problematic. The only state or

public policy consideration is of cost saving; there is no major benefit to the defendant.

Observation of demeanor is often hampered by the poor training of personnel using the video

equipment and/or the obsolete or inadequate equipment. In Harrell, the first part of the test

was satisfied in that the victims were home in Argentina, beyond the subpoena power of the

court; they were also in poor health, and their testimony was absolutely essential to the case.

The second part was fulfilled in the interactive video transmission by having the victims

swear of an oath, they were cross examined, and video monitor’s image allowed observation

of the witnesses demeanor. The Harrell case gave further precedent to the use of interactive

video as well as further refining the situations of when it will be allowed.

The case United States v. Gigante (166 F.3d 75 (2nd. Cir 1999)) concerned a violation

of the Racketeer Influenced and Corrupt Organizations Act (RICO), conspiracy, conspiracy

to murder, extortion conspiracy, and a labor payoff conspiracy.275 The court ruled that a

witness’ testimony via two-way, closed-circuit television (CCTV) did not violate the

defendant’s Sixth Amendment right of confrontation.276 The witness was terminally ill and

274 Id. at 1369. The Court stated that there is a strong presumption in favor of face-to-face testimony. Further, the burden would be on the moving party to provide substantial justification for the use of the technology. 275 See United States v. Gigante 166 F.3d 75, 81 1999. (The Court states that this technology should not be considered commonplace substitute for in-court testimony by a witness. Further, that there are intangible elements of the ordeal of testifying in a courtroom that are reduced or eliminated by remote testimony.). 276 Id. Because this technology may provide at least as great protection of confrontation rights and the Court declined to articulate a clear standard. (See United States v. Johnpoll, 739 F.2d 702, 708 (2d Cir. 1984)).

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in the witness protection program.277 The court reasoned that the testimony retained the

salutary effect of in-court testimony and that the remote testimony afforded greater

protection of the defendant’s rights than would been provided by pretrial deposition, which

would have been permissible under the circumstances. The court reiterated that the right to

face-to-face confrontation is not absolute but qualified the statement, stating that face-to-face

confrontation will only be denied under “exceptional circumstances.”278 The exceptional

circumstances requirement was met by the witness.279 Further, the court stated that the

testimony did not have to fulfill the test articulated in Craig because the situation in this case

employed a two-way video system, whereas the video system in Craig was one-way. This

case further defined the use of interactive video in the courts.

In Minnesota v. Sewell (595 N.W.2d 207 (Minn. 1999)) the State Supreme Court of

Minnesota ruled that the testimony of a prosecution witness on interactive television (ITV)

did not violate the defendant’s confrontation rights.280 Here the court found that the use of

ITV was comparable to the use of videotaped deposition testimony, and thus was authorized.

Further, because the witness had recently undergone surgery and his physician informed the

court that the witness would not be able to travel for a minimum of three months, the court 277 Id. 278 See Id. at 81-82. Here the Court embraces a standard the Federal Rules of Evidence 15 for “unavailable” witnesses where the decision to allow such testimony rests with at the discretion of the trial court and will not be disturbed without a clear abuse of discretion. (See United States v. Johnpoll, 739 F.2d 702, 708 (2d Cir. 1984)). 279 Id. 280 See Minnesota v. Sewell 595 N.W.2d 207, 213 1999. (The defense counsel had an unfettered opportunity to cross-examine the witness and did so extensively and effectively. Further, counsel was able to explore the witnesses inconsistent statements confront him with his criminal background, and the jury saw and heard the cross-examination and the witnesses responses. The Appellant countered that he could not use common “body language” confrontational techniques, that the jury was deprived of “demeanor clues” (such as face-flushing, perspiration, breathing, and subtle eye movements), and could not see the whole witness because of the camera angle.).

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ruled that the video testimony was acceptable. This case further clarified some technology

issues inherent in video testimony. The court held that any distortion in the prosecution

witnesses testimony via ITV by occasional transitory and insignificant static-type

interference with the video image and slight time delay between questions and answers did

not preclude an effective cross-examination or interfere with the jury’s assessment of the

witness’s demeanor. Further, the court stated that once the unavailability of a witness and

the necessity of testimony have been demonstrated, the focus of the confrontation clause

analysis shifts to the reliability of the testimony. The reliability of the testimony of an

unavailable witness is ascertained, for the purposes of confrontation clause analysis, by

examining four features: (1) whether the testimony was given under oath, (2) whether there

existed an opportunity for cross-examination, (3) whether the fact-finder has the ability to

observe demeanor evidence, and (4) whether there exists and increased risk that the witness

will wrongfully implicate an innocent defendant when testifying out of his presence.281 Note

that the court used the test introduced in the Craig case and altered the test’s fourth criteria

concerning the reliability of testimony from “the defendant retained the opportunity for

contemporaneous cross-examination” to the risk of wrongfully implicating an innocent

defendant.

Sentencing

In United States v. Navarro (169 F.3d 228 5th Cir. 1999), the federal appeals court

held that sentencing by interactive video violated the rule requiring a defendant’s physical

281 Id. at 212-213. (See United States v. Gigante, 166 F.3d 75, 80 (2nd Cir. 1999).

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presence at sentencing.282 The court in Navarro went to great lengths to establish a legal

basis for this requirement.283 The Court conducted a thorough analysis of Rule 43 of the

Federal Rules of Criminal Procedure that formed the basis of the physical presence

requirement. Further, the court expanded its examination of the definition of “presence” by

invoking its definition in Blacks Law Dictionary, Webster’s Third International Dictionary,

and through the plain, ordinary meaning of the English language.284 The analysis of the

definition focused on the words “in sight” and whether this key part of the definition is

satisfied by videoconferencing. The court definitively concluded that videoconferencing

does not satisfy the requirement of “presence.”285 The court also touched upon the dignity

and ritual of physical presence in court as necessary for the public’s perception of justice:

The very ceremony of trial and presence of the factfinder may

exert a powerful force for truthtelling. The opportunity to judge

the demeanor of a witness face-to-face is accorded great value

in our tradition. Transmission cannot be justified merely by

showing that it is inconvenient for the witness to attend trial.

Sentencing a defendant by video conferencing creates the risk of

a disconnect that can occur because ‘[t]he immediacy of a living

person is lost.’ Stoner v. Sowders 997 F.2d 209, 213 (6th Cir.

1993). “In most important affairs of life, people approach each

282 See United States v. Navarro 169 F.3d 228, 235 1999. (The district court overruled the defendant’s objection to being sentenced by videoconferencing and sentenced him to life in prison.). 283 Id. at 235-237. The analysis is based on Federal Rules of Criminal Procedure 43, the plain language in Black’s and Webster’s Dictionaries, and case law. 284 Blacks Law Dictionary, Webster’s Third International Dictionary. 285 Navarro at 235.

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other in person, and television is no substitute for direct personal

contact.286

The court opined that video conferencing cannot satisfy the presence requirement outside of

extraordinary circumstances as well a concern for the legitimacy of the legal process.

In United States v. Lawrence (248 F.3d 300 (4th Cir. 2001), the court reinforced the

Navarro decision by defining “presence” at sentencing to mean “physical presence”287 and

unequivocally reiterated that Rule 43 of the Federal Rules of Criminal Procedure requires a

defendant to be physically present at the imposition of sentence.288 The case also shed light

on the reasons the court sentenced the defendant by interactive video. At the sentencing

hearing, the defendant was unruly and abusive. He cursed, was sarcastic to the court, and

repeatedly boasted of his intention to continue breaking the law. The defendant, who was six

feet eight inches tall and weighed about three hundred pounds, had to be restrained during

some of his court appearances with a 50,000-volt stun belt. He was incarcerated in a federal

super-maximum security facility and was deemed by the Bureau of Prisons to be “a danger to

transport” and a “very dangerous individual due to his past behavior.” Rule 43 states that a

defendant can be removed only “after being warned by the court that disruptive conduct will

286 997 F.2d 209, 213 (6th Cir. 1993. (“To allow trial by deposition here (whether by video or written) to substitute for regular trial testimony would over time invite trial by deposition in many, perhaps most, criminal cases. Many witnesses would prefer not to testify in a criminal trial and can often find a doctor who will provide a cursory “doctor’s excuse,” a statement that the witness’s physical or mental health “could” be adversely affected by having to appear.”). 287 See United States v. Lawrence 248 F.3d 300, 302 (4th Cir. 2001). (At the sentencing hearing, the defendant was physically located at a federal prison in Colorado while his counsel (with the judge, prosecutor, and other court personnel) was located in the courtroom in South Carolina.). 288 Id. at 304–305. Under FRCP 43 it is necessary that the defendant be sentenced in person unless 1) the defendant knowingly and intelligently waives the right or 2) the defendant is removed from the courtroom for persistent, disruptive conduct after the defendant has been warned that can be removed from the courtroom. Emphasis added.

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cause the removal of the defendant from the courtroom persists in conduct which is such as

to justify exclusion from the courtroom.”289 The court further stated that the warning was an

integral part of the rule, as well as the constitutional underpinnings of the rule itself.

In Lawrence, the court found that the defendant was not properly notified that his

behavior was disruptive would lead to his being removed from the courtroom. Absent of

such a warning, found the court, the defendant must be sentenced in the physical presence of

the court. The court further stated:

The government maintains that district courts should have the

discretion to permit video teleconferencing when circumstances

warrant it. The rule reflects a firm judgment; however, that

virtual reality is rarely a substitute for actual presence and that,

even in the age of advancing technology, watching an event on

the screen remains less than the complete equivalent of actually

attending it. The Sixth Amendment right of a defendant to be

present at trial best ensures the right to consult with counsel and

confront adverse witnesses. Presence at sentencing serves

additional purposes as well – it gives a defendant one last

chance to physically plead his case. If we were to hold that

video conferencing satisfies the presence requirement of Rule

43, it would permit the government to substitute such

conferences for physical presence for any defendant at anytime

for any reason.290

289 Fed.R.Crim.P.43. 290 248 F.3d 300, 304 2001. See Fed.R.Crim.P.43; see also Fed.R.Crim.P.43 advisory comm.1974 n. (making clear that closed circuit television is not the same as actually being in the courtroom). See Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970).

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The Court’s provocative opinion will likely have far-reaching ramifications for future use of

interactive video technology.

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A Comparison of Videoconferencing and Alternative Courts

Critics of videoconferencing claim that it violates fundamental fairness. Others state

that its impact on due process and the rights of an accused have not been examined, and see

videoconferencing as another example of an experiment that uses the courts as a laboratory

and defendants as guinea pigs. Social science and law must be mixed slowly and carefully.

As interdisciplinary research and learning becomes more commonplace, the dangers of such

experimentation become more acute.

The foundation of many legal concepts and principles, supporting other fields of

learning, is basic equity and fairness. The criminal justice system utilizes contract law for

agreements between the State and a defendant, where the defendant pleads guilty to a crime

in exchange for a reduced sentence or charge. More disciplines are using basic law

principles daily. Health care providers use proxies for health care decisions; land developers

employ the legal principle of the Statute of Frauds to transfer land interests; family services

employ the legal concept of agency to decide how parents must care for their children.

However, legal principles are often misunderstood and misused by these other areas

and create negative outcomes. Neither have these concepts been explored through empirical

analysis or examined systematically. In recent years, the legal system has begun using

specialized courts to deal with specific issues. The main type of specialized court used is the

drug court. These courts push basic legal concepts to new heights. Like proponents of

videoconferencing, proponents of drug courts maintain that while they may bend legal

concepts, they do not break them. Critics charge that legal concepts are broken often, and

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use their trappings to highjack the legitimacy that these legal concepts have earned through

centuries of pedigree.

Proponents of specialized courts believe the judiciary go beyond its traditional role by

combining law and drug treatment as an effective and efficient drug therapy. The courts tend

to favor videoconferencing because it seems to break down formalistic legal barriers in order

to work toward rehabilitation, not punishment. Critics maintain that the mixing of therapy

and law, dubbed “therapeutic jurisprudence,” creates a paradox that cannot be rationalized.

Therapy presupposes that the offender has an illness and cannot exercise free will, and

therefore should be treated, and not punished for having the illness. Criminal law

presupposes free will. Punishment is based on deterrence to alter an individual’s choice.

These two concepts are diametrically opposed.

In a drug court, the law mandates that the defendant be punished when an offender’s

illness cannot be “cured.”291 The defendant’s rights are sacrificed in the name of therapeutic

efficiency. Using videoconferencing, the defendant’s rights are sacrificed in the name of

procedural efficiency. The adversarial model has been abandoned in both cases.

Adversarialism is a cornerstone of the legal process; the system is predicated on this tenet.292

To alter or remove it without creating procedural safeguards will likely create constitutional

problems. Critics state that videoconferencing’s greatest problems can be alleviated by

making its use voluntary and allow defendants the option to use it. Giving the defendant the

291 Hoffman, M.B. Therapeutic Jurisprudence, Neo-Rehabilitationism, and Judicial Collectivism: The Least Dangerous Branch Becomes Most Dangerous. Fordham University School of Law Fordham Urban Law Journal. 29 Fordham Urb. L.J. 2063 (2002) at 2088. Not punishing behavior that has been criminalized by the legislative branch of government by the judiciary is another issue highlighted by Judge Hoffman. 292 Id.

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pros and cons of videoconferencing would be necessary in order for the defendant to make

an informed decision. Allowing the defendant to give “informed consent” to use

videoconferencing would be constitutionally compliant. Perhaps videoconferencing could

only be used in specialized circumstances, such as situations where the defendant favors

efficiency and speed over procedural rights, or where the defendant is going to plead guilty

and wants the pre-trial hearings to move as fast as possible. Exploring the methods and

procedures drug courts use has relevance to the exploration of videoconferencing.

Drug court plea agreements/contracts violate the basic legal principles of plea-

bargaining and contract law and can only be aligned with such principles under limited

circumstances, just as opponents of videoconferencing allege that it may be aligned with

concepts of fairness. Critics of videoconferencing cannot rationalize the drawbacks of

videoconferencing when weighed against its advantages, just as an analysis of drug court

post-plea entry through a framework of contract cannot be rationalized. Videoconferencing

is thrust upon defendants much as drug court defendants are forced to enter into a contract

through the plea bargaining process. The arrangement creates a situation where one party to

the contract (in particular the drug court judge) both interprets the terms of the contract and

enforces its interpretation, leading to a lack or failure of consideration under contract law. A

second concern involves the “point of failure” for drug court defendants when the judge acts

as both a participant in the process and a fact-finder of a defendant’s breach of plea

agreement/drug court contract.

Just as critics claim that videoconferencing processes or “channels” defendants

through the legal system, drug courts generally channel offenders through the criminal

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justice process in two ways: deferred prosecution and post adjudication.293 “Deferred

prosecution drug courts require defendants to waive his rights to a speedy trial and enter

treatment as soon after being charged as possible” … generally without a plea.294 This

focuses on the post-adjudicative, post plea model of drug court entry. Many see the reaching

of a plea agreement problematic, as a condition of gaining entry into a drug court program, in

light of the plea bargaining principles as explained and clarified through the bargained for

exchange rules contract law. A majority of offenders are entering drug courts using this

process, and the number is rising.295

The use of drug courts and the use of videoconferencing both start early in the legal

process. It begins when an offender enters a guilty plea (in some jurisdictions to the highest

offense alleged) at an early stage in the proceedings.296 Offenders “voluntarily” enter the

drug court system after waiving the right to be prosecuted in traditional court.297 “An early

plea is a critical component of most drug court models. A rapid progression from arrest to

treatment facilitates the treatment process, as it stresses the causal connection between drug

293 Miller, Eric, J. Embracing Addiction: Drug Courts and the False Promise of Judicial Intervention, 65 Ohio St. L.J. 1479, 1489. 294 See Miller at 1489. 295 Id at 1489. The post adjudication model is preferred by many drug court proponents because it has a greater coercive effect on the defendant. This coercive effect is necessary for leverage during the rehabilitation process. 296 Quinn, Mae, C. Whose Team am I on Anyway? Musings Of A Public Defender About Drug Treatment, 26 N.Y.U. Rev. L. & Soc. Change 37 (200/2001). Not just pleading guilty, but pleading guilty to the highest alleged crime enhances the coercive effect on the defendant during the rehabilitation process. 297 Casey, T., When Good Intentions are not Enough: Problem Solving Courts and the Impending Crisis of Legitimacy, 57 SMU L. Rev. 1459, 1482 (Fall 2004).

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activity and the consequences of that behavior. In addition, the early plea eases court

congestion and satisfies prosecution concerns about conviction rates and cases loads.”298

How Drug Courts Operate

Unlike traditional drug rehabilitation programs, drug courts do not relinquish control

over their case by outside referral. Rather, drug courts use the coercive effect of the criminal

justice system as a central element of handling an offender. The primary players are

traditional criminal justice professionals (judge, prosecutor, defense counsel, etc.) in non-

traditional roles as part of a “treatment team.”299 These non-traditional roles are designed to

help rehabilitate, not punish, the offender. The drug court is also designed to move offenders

quickly into treatment. Critics maintain that the basic legal axioms of fairness in plea

bargaining and due process concerns are violated by the offender’s speed of transfer into the

drug court arena. Drug court advocates maintain that in drug cases, time delays have severe

consequences for an offenders’ chance of rehabilitation. Such delays may protect legal

rights, but may have terrible repercussions on behavior modification.300

298 See Casey at 1482. The rapid succession that is favored by proponents of the drug court model is often criticized by its opponents. The speed in which the defendant enters the system is often seen as a red flag with concern to constitutional issues. 299 Marlowe, Douglas B. New Voices in the War on Drugs: Effective Strategies for Intervening with Drug Abusing Offenders. Villanova Law Review. 47 Vill. L. Rev. 989. (2002). The non-traditional roles of the judge and defense attorney are often cited examples by opponents of problems. These non-traditional roles can cause confusion for the defendant as to what can be expected from the key players in this “court” system. 300 Id at 989.

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Entry into Drug Court through a Post-Plea Agreement

Often a plea agreement is the basis of a “drug court contract” that explains the terms

and responsibilities of the parties.301 This contract specifies the rights and duties of each

party and the penalties for breach. Drug court advocates argue that a behavioral contract is

the basis for the protection of constitutional rights, and that the defendant’s signing of the

contract is a proper waiving of rights. 302 Once the offender successfully completes the

treatment program, the court will expunge his/her record or allow the offender to “re-plea” to

an already specified lesser offense.303

The waiving of an offender’s rights should not be minimized. The offender also

waives constitutional rights to counsel, trial, self-incrimination, and unreasonable searches

and seizures.304 Mae Quinn, a staff attorney at the Bronx Defenders Office, writes

specifically about the difficulties of counseling defendants in post-plea jurisdictions. Quinn

considers a scenario where a drug court judge calls aside a defense attorney for arguing too

vehemently against a sanction or termination for a client failing to comply with a drug court

program. Does the “team” approach permit a defense attorney to abandon strong advocacy

efforts? When does zealous representation create a situation where the defense attorney is no

longer a “therapeutic team member”? Such a scenario highlights the defense attorney’s

301Taxman, F.S. Graduated Sanctions: Stepping into Accountable Systems and Offenders. Prison Journal. 79(2): 182-205. (1999). The plea agreement is often the drug court contract. The drug court contract is signed by the defendant, the prosecutor, and the drug court judge (among others) as parties to the contract and subject it its terms. 302 See Taxman at 187. The use of a “contract” is used to bind the defendant as well as detail the rights the defendant is forgoing. 303 See Casey at 1481. Opponents of drug courts take issue with the judicial branch of government taking a defendant, who has pled guilty to conduct criminalized by the legislative branch of government, and expunging his record after completion of treatment. 304 See Quinn at 55.

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paradox of protecting a defendant’s liberty interests against protecting a defendant’s

sobriety.305

In drug courts, a defendant waives constitutional rights, the rights under the Rules of

Evidence and the Rules of Criminal Procedure. For therapeutic jurisprudence advocates, the

exchange of rights for treatment seems not only rational and justified but also ideal.306 The

problems start when the offender “fails” treatment. “If the defendant fails to complete the

treatment process, the original plea of guilty is enforced, and the defendant is, in most cases,

sentenced to a long period of incarceration.”307

Under traditional contract law, one party having the power to both interpret and

enforce an agreement is unlikely. If such a situation arose, the claiming party would have an

unbiased forum (a neutral, detached fact-finder who is not a party to the agreement) review

the properly recorded facts and evidence. Moreover, if the claiming party were not satisfied

with the forum that reviewed the facts and evidence, the claiming party could have such

procedures reviewed by an appellate court.

Defendants do not have a choice of whether they use videoconferencing, just as drug

court defendants often gain entry into the process through plea bargaining, where more than

fifty percent of offenders may be subject to a mandatory plea to gain entry. Further, there is

an allegation that when the State, represented by the drug court judge, enters into a contract

with a defendant through plea bargaining, this creates a situation where one party to the

305 Id at 155. The occasion for such conflicts of interest can arise all too often. Placing the defense attorney in the position of having to choose between safeguarding a defendant’s rights or health. 306 See Casey at 1483. 307 Id at 1484. Like drug courts, the use of videoconferencing is subject to abuse. Proper rules and procedures are necessary to ensure fair proceedings.

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contract (as before) interprets the terms and enforces its interpretation, leading to a lack or

failure of consideration under contract law.

Videoconferencing, Drug Court Plea Agreements, and Traditional Plea Agreements

There is a parallel between plea bargaining and the use of videoconferencing in the

courts. While there has been some analysis of traditional face-to-face interactions in the

courtroom, there has been more research on the differences between drug court plea

agreements and traditional plea agreements. The main difference is that in a traditional court

plea agreement, the defendant always obtains the “benefit of the bargain,” whereas a

defendant in a drug court plea agreement may or may not obtain such benefit depending on a

drug court judge’s subjective interpretation of the defendant’s conduct.

In United States v. Moscahlaidis, the court held that a plea bargain is a contract with

the State and therefore is to be analyzed under contract law.308 This position was reinforced

in United States v. Bernard where the court found that although a plea agreement occurs in

the criminal context, it remains contractual in nature and is to be analyzed under contract-law

standards. Further, “… that when “[p]roperly administered, they [plea bargains] can benefit

all concerned.”309 “Since plea agreements are viewed as contracts, the precise wording of an

308 868 F.2d 1357, 1361 (3d Cir. 1989). The court held that if the government breaches a plea agreement, under the standards of contract law, the agreement is void and the guilty plea withdrawn. In the drug court context, applying this standard would necessitate that drug court contract being void and any guilty plea withdrawn. 309 F.d, 2004 WL 144388, 5 (3d Cir. 2004). Here representations by the defendant that the plea agreement was possibly made through such factors of misunderstanding, duress, or misrepresentation rendered the plea agreement constitutionally inadequate as a basis for imprisonment. A defendant operating under a drug court contract might employ these factors to void an agreement. See Blackledge v. Allison, 431 U.S. 63, 71, (1977).

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agreement is critical to its enforceability.” 310 Drug court contracts (through plea bargains)

are subject to the basic tenets of contract law. Critics of videoconferencing maintain that he

“pluses” outweigh the “minuses” in that defendants subjected to videoconferencing do not

receive the benefit of the bargain when videoconferencing is used.

In general, contract law requires that both parties show mutual assent as the first

prerequisite of a contract. This manifestation of mutual assent is often called “the meeting of

the minds.”311 Such assent can be written, spoken, or inferred to by act or failure to act. For

a meeting of the minds (mutual assent) to take place, it must be shown that: (1) the parties

intended to engage in the conduct showing assent, and (2) knew or had reason to know that

the other party might infer such assent from the conduct.312 In a typical plea bargaining

process, the assent is manifested by a spoken, straightforward statement from either party to

begin plea bargaining negotiations.313

There is a body of law that allows the prosecutor far-flung discretion to determine

whether a defendant has sufficiently cooperated with the State and has fulfilled his/her

obligations under a plea agreement. When a defendant states that he/she is cooperating in

the prosecution of another defendant/case as part of the duties under a plea agreement, the

prosecutor has great latitude to determine whether such cooperation was sufficient to satisfy

the defendant’s duty under the plea agreement. Courts rarely find that the government’s

non-performance for lowering a sentence or reduction in charges constitutes a breach of the

310 Bender 2002, Sec. 6.05. 311 Restatement, Contracts 2d Sec 24. 312 Restatement, Contracts 2d Sec 24. 313Id. Violations of a defendants rights through the use of videoconferencing, like plea bargaining, is often not identified due to the discretion of the rules.

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plea agreement.314 In Re Sealed Case, the defendant entered into a plea agreement

containing language that stated the defendant was to “cooperate truthfully, completely and

forthrightly.”315 “After the plea was signed and the defendant pled guilty, the government

asked the defendant to cooperate on two cases; the defendant cooperated fully on one of the

two cases and partially on the second.”316 The prosecutor stated that the defendant violated

the plea agreement because of their partial cooperation in the second case. The court

concluded that since the plea agreement gave sole and complete discretion to the prosecutor

to define “cooperation,” and there was no objective way to determine whether the

defendant’s cooperation was sufficient, it allowed the prosecutor’s interpretation of the

plea.317

Applying this reasoning and body of law to a defendant’s plea agreement in drug

court suggests that the State, either through the drug court judge or other state representative,

can terminate a plea agreement with no prior review. Defendants who participate in

videoconferencing have little choice. Drug court plea agreements, and drug court behavioral

contracts, tend to be written in a manner that gives the State broad discretion in defining

“cooperation” or “compliance.” Such language can be considered “boiler-plate.” In

videoconferencing, its use is deemed part of the process to which the defendant must

comply.

314 Bender 2002, sec. 6:08[2]. 315 Bender 2002, sec. 6:08[2] In Re Sealed Case 244 F.3d 961 (D.C. 2001). 316 In Re Sealed Case at 964 (2001). 317 244 F.3d 961, 964 - 966 (2001). Critics claim the application of these rules amounts to experimentation on defendants. Either in the drug court or videoconferencing context the use of these procedures must be analyzed and studied.

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A drug court defendant’s situation, however, can be distinguished from the traditional

plea bargaining defendant. The above case involves a defendant cooperating in other cases

the prosecutor is pursuing, not in the defendant’s own. This distinction brings it more in line

with the traditional drug court scenario, where the defendant’s cooperation in his/her own

case is mandated and not in cases others prosecute. In United States v. Truman,318 the court

held that because the defendant’s “cooperation” did not involve the investigation or

prosecution of another person, the authority was subject to review by a neutral judge to

determine whether the defendant “cooperated.” Here the prosecutor’s discretion was

limited, and an independent judge ruled on whether the defendant violated the agreement and

could be discharged from the program. Only after an independent review can a

determination be made whether the State breached the agreement and (1) the defendant can

return to the program or (2) whether the agreement failed due to failure of consideration and

the plea agreement is vacated.

In the videoconferencing situation, traditional plea bargaining offers no give and take.

A defendant has little to no choice as to whether to be subjected to videoconferencing. It has

been deemed to be part of the legal process with little challenge or regard for the

ramifications.

Consideration

Critics of the making the plea-bargaining process a prerequisite to entry into drug

court present two arguments: (1) that the plea bargain contract is flawed and creates no 318 304 F.3d 586 (6th Cir. 2002). Videoconferencing and drug court procedures rely heavily on the discretion of the court and its court officers. Formalized rules and procedures would remove a good deal of the discretion exercised and allow defendants to object to the process. In the event the process moves forward despite an objection, the defendant may still influence how the process is conducted minimizing the more harmful effects of videoconferencing.

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enforceable contract, or (2) in the alternative, that there is a void plea bargain contract.319 If

no contract exists, the plea bargain contract is said to have never been formed for “lack of

consideration.” 320 If the plea bargain contact does exist, then the agreement is said to be void

for failure of consideration.321 Either way, critics maintain that reliance on a plea bargain as

the vehicle for entry into a drug court does not pass legal muster and, in its present form,

cannot be used for such a purpose.322

Lack of Consideration

When there is a “lack of consideration,” no contract is formed.323 When lack of

consideration is found, neither party may rely on the contract or enforce any rights derived

from the contract. Several circumstances result in a proposed contact not being formed for

lack of consideration. These include, but are not limited to: (1) an illusory promise, (2) a

unilateral right to terminate, and (3) a unilateral option to cancel.

319 See Casey at 1483. 320 Id. at 1484. 321 Id. The rules that are used to gain entry to drug court as well as the interpretation of the drug court contract are subject to too much discretion. The same analysis can be applied to videoconferencing. Challenges to videoconferencing should be part of its analysis. 322 Id. 323 McCraw v. Llewellyn, 256 N.C. 213, 123 S.E.2d 575 (1962) reinforcing the basics of the definition of consideration. See Am Jur. 2d. Contracts Sec. 11-13, 1-5. See also ss 102 to 167 concerning consideration. Basic definitions of law are the cornerstone of the legal process. Standardized rules and definitions are necessary for the ordered justice. Ad hoc procedures for videoconferencing and drug courts create situations where defendants do not know or understand the procedures they are a part of minimizing their role in the process.

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Barron’s Law Dictionary defines an illusory promise as “a promise so indefinite that

it cannot be enforced or which, by virtue of provisions or conditions contained in the promise

itself, is one whose fulfillment is optional or entirely discretionary on the part of the

promisor.324 Since such a promise does not constitute legal consideration, it is not sufficient

as consideration for a reciprocal promise and thus cannot be a valid contract.325 In drug

court, it can be argued that a post-plea entry can be viewed as illusory. In this situation, the

state is both a party to a plea agreement/drug court contract and the interpreter of the

agreement with the power to enforce its interpretation.326 An agreement that grants

overwhelming power (including the power to interpret what promise, if any, is given) to one

side of an agreement might invalidate the promise as consideration. In the post-plea, the

State’s power to impose a one-sided interpretation of an agreement may render the contract

void for lack of consideration.

If the contract allows one or both parties the “Right to Terminate” the agreement, this

right might make the promise illusory and the contract unenforceable. If the agreement

allows one party to terminate simply by merely giving notice, the view of traditional

common law is that the party with the termination right has not furnished consideration. The

modern trend holds that as long as the terminating party has the obligation to give notice, this

duty of notice itself furnishes consideration. In drug court, it may be argued that the

324 Where the court held that promise by the insurance company to pay Respondent a renewal bonus that was voluntary and could be withheld with or without notice rendered the promise to pay illusory and unenforceable. In the drug court contract situation, the promise by the judge court judge (who is also a party and signatory to the drug court contract) is similarly illusory where the judge is a party to the contract and the sole arbiter of the contracts meaning and enforcement. See Spooner v. Reserve Life Insurance Company 287 P.2d 735 (1955). 325 See Am Jur. 2d. Contracts Sec. 1-5, 11-13. 326 Id.

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traditional, common law view of a right to terminate is more applicable. Often different

defendants enter into plea agreement/drug court contracts with the same terms. Yet, even

with identical agreements, the drug court judge can treat different drug court defendants

differently in imposing sanctions, including termination from the program.

One of the main goals of written contracts is to provide consistency to terms and

expectations to each contracting party. However, the state has such overwhelming power of

interpretation that the drug court defendant may not be provided with such consistency.

Since the written terms are more fluid in a drug court situation, it may be argued that such

terms do not give proper notice under the agreement as they would in a traditional court,

where neither party has the absolute power to impose its interpretation of an agreement on

the other party. Given that different defendants, with identical plea agreement/drug court

contracts, can be treated differently for the same infraction may negate the more

contemporary view, which holds that notice may furnish consideration for a right to

terminate.

An “Option-to-Cancel” Clause reserves the right of a party to cancel or withdraw

from a contract at any time, but it can be an illusory promise. Nevertheless, like the right to

terminate mentioned above, if the right is restricted (such as by requiring thirty days’ notice),

that may be construed as consideration. In the post-plea drug court context, a similar

argument may apply as in the right to terminate situation. Granting the state the option to

cancel the plea agreement/drug court contract may create a situation where the state can treat

different drug court defendants differently even though each defendant has signed identical

plea agreement/drug court contracts with the state.

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As with videoconferencing, the defendant is subjected to a process over which he has

little control. The measurable benefits of videoconferencing (like saving time and money)

go to the court and prosecution (the State), while the good or bad effects on the defendant

have not been analyzed. This in spite of the warnings critics have issued on the many

ramifications of videoconferencing.

Failure of Consideration

When there is a failure of consideration, a contract that is valid when formed becomes

unenforceable because the performance bargained for has not been rendered (Franklin v.

Carpenter, 244 N.W.2d. 492 (Minn. 1976).327 Barron’s Law Dictionary defines “breach of

contract” as “a party’s failure to perform some contracted –for or agreed-upon act, or failure

to comply with a duty imposed by law which is owed to another or society.”328

The term “failure of consideration” applies to all cases where an obligation under a

contract has not been performed regardless of the circumstances or fault of the breaching

party. However, all failures of consideration do not breach contract. A failure to render

performance or promise may not be a breach because of impossibility or the destruction of

the subject matter, but such a failure of consideration does discharge the other party from

327 The Court held there is a “lack of consideration,” no valid contract is ever formed; when there is “failure if consideration,” a contract valid when formed becomes unenforceable because the performance bargained for has not been rendered. In the drug court instance, the performance bargained for (an objective review performance by the defendant) may not have been rendered due to an arbitrary or ill-conceived interpretation of the actions of the defendant with relation to the drug court contract by the drug court judge (a party and signatory to the drug court contract). 1 Williston, Contracts, ss 119A (3rd ed.); 1 Corbin, Contracts, s 133). 328 This section distinguishes between the lack of consideration and failure of consideration in a contract. In either event, in the drug court situation, there may not be a valid contract from the beginning or later when the promised performance by the drug court judge has failed.

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their duty under the contact and creates an obligation to make that party whole (Inches v.

Butcher, 104 N.W.2d 556 (N.D. 1960)).329 When a contract fails for failure of consideration

when a party refuses to perform their part of the bargain, there is a breach of contract. This

defeats the very goal of the contract and releases the non-breaching party from their duties

and obligations under the contract.

If the state is refusing to perform its part of the agreement a plea agreement in a drug

court contract can be said to fail for failure of consideration in. In drug court, the state’s

failure to perform is not due to impossibility or due to destruction of the subject matter, but

because it is enforcing its view of the agreement and is now free not to perform (not provide

the defendant with the benefit of the bargain), with no adverse consequences. Plea

agreement/drug court contracts maintain that sanction/termination can result from relapse,

failure attend treatment, failure to attend drug court, or failure to follow court rules (which

may include a amorphous concepts like “treating others with respect,” or following a dress

code). The judge’s discretion to interpret plea agreement/drug court contract terms is vast.

A drug court judge can be seen to fail a defendant from the program rather than a defendant

can actually fail the program. The parallel with videoconferencing is that critics argue the

legal process has failed the defendant rather than the defendant was failed by the facts and

circumstances of his/her individual case.

The potential failure of consideration issue is an “argument in the alternative”

approach to the post-plea drug court situation where it might be said that a lack of

consideration argument falls short. If the defendant shows that the State breached the plea 329 Here, the defendants promise to render services to the plaintiff were rendered unnecessary because of a death; there was a failure of consideration for the plaintiff’s conveyance. In the drug court context, it is not the mere promise of aiding the defendant under the drug court contract, but the actual help.

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agreement, relief may come from: (1) allowing withdrawal of the plea, (2) altering the

sentence, or (3) ordering specific performance of the agreement. (Bender 2002, sec. 6.08[1]).

The remedy for the state’s reaching of an agreement is dependent upon the specifics of the

case.

Whether the court will order “specific performance” of a plea

agreement depends entirely on the nature of the alleged breach or

failure to satisfy the terms of the agreement, the specific language

of the plea agreement, and the facts surrounding the government’s

determination that the defendant is not entitled to the benefits of

the plea agreement. (Bender 2002, sec. 6.08[2]; see United States

v. Velez Carrero, 77 F.3d 11 (1st Cir. 1996).330

The Velez Carrero case reiterates the case-specific nature of the review of plea

agreement breach cases. Case law makes the main point that the courts will hear these cases

and not leave decisions to the State regarding breach or review. In United States v. Gomez

271 F.3d 779, 782 (8th Cir. 2001)331 the court held that the government should have

withdrawn from the agreement rather than breach at sentencing. (In United States v. Saling

330 Here the Court held that because plea bargaining requires defendants to waive fundamental constitutional rights, prosecutors engaging in plea bargaining are to be held to the most meticulous standards of both promise and performance. As a drug court contract (signed by the defendant, the prosecutor and the drug court judge) is the result of a plea bargain where the defendant gives up these same fundamental constitutional rights, drug court contracts must be held to the same standard. 331 The Court interpreted the plea agreement according to general contract principles and held that in the event of a breach by the defendant the government was required to withdraw from the agreement or keep its promise to the defendant. Under a drug court contract, the government would be required to release the defendant from the contract or move forward keeping its promises under the agreement.

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205 F.3d 764, 768 (5th Cir. 2000)332, the court remanded the case so that the defendant could

be resentenced, allowing the defendant to withdraw his plea cert. Denied, -- U.S. --, 122 S.

Ct. 1374 (2002) if government breaches, the court has the option of ordering specific

performance or withdrawal as a remedy for the defendant).

In drug court, ordering specific performance or altering the sentence are likely not

viable options. Ordering continuation of treatment in drug court, where the service rendered

(treatment) is so specialized, is likely to provide the defendant beneficial treatment.

Furthermore, altering the drug court defendant’s sentence also does not seem to be a viable

option. There have been no provisions for such an event under the plea agreement/drug

court contract and the awarding such a benefit to the defendant could be tantamount to

allowing him/her to benefit from his/her own wrongdoing. The only viable option seems to

be to allow the defendant to withdraw his/her plea and, outside of another option, let the

traditional court system run its course.

An independent judge’s review of a defendant’s termination from a drug court

program is likely to be addressed on due process grounds.333 Recently, courts have held that

defendants must have a meaningful opportunity to rebut allegations of non-compliance and

recommendations of termination.334 Furthermore, to ensure a meaningful appeal, the drug

332 Here the Court opined that when any plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. Under a drug court contract, the promise of help and an objective interpretation of the contract provisions are significant inducements to the defendant. After the defendant is involved in the drug court system, he or she may or may not receive their benefit of the bargain. See Looney v. Oklahoma 49 P.3d 761. 333 A defendant has the right to appeal his termination from a drug court just as he has the right to appeal the acceleration of his deferred sentence. See State v. Valentine 2000 Wash App. LEXIS 866. 334 A defendant’s due process rights were violated when she was terminated from a drug court program without being afforded a meaningful opportunity to respond to the allegations of non-compliance.

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court must give written reasons why the defendant should be terminated. These reasons

must include why the drug court program’s sanctions were inadequate or inappropriate for

the defendant. Many drug courts do not mandate a written record for termination, but

without one there can be no meaningful review. Reasons in writing gives an appellant judge

a proper foundation and record for review.

The Plea Bargaining Process

Critics of videoconferencing claim that not all the parties involved (the court,

prosecution, and especially the defense) understand the impact that this technology has on

the legal process. They insist that understanding videoconferencing and its consequences is

necessary for fairness and justice. In comparison, the plea bargaining process is designed to

ensure that all guilty pleas are entered knowingly and voluntarily, with an understanding of

the consequences. In a drug court’s post-plea phase, the plea agreement is not concluded at

the passage of sentencing but is contingent upon the drug court’s procedures and the

defendant’s behavior. The conclusion, after all parties have fulfilled their respective

obligations under the plea agreement, may not be known for over a year. This significant lag

time is not taken into consideration by “boilerplate” plea agreement questions, which do not

seem to recognize the dual role of the drug court judge as both party to and fact-finder of the

contract. The drug court’s post-plea phase is unique in the American criminal justice

experience to have such a concentration of power. The guidelines and questions asked

during a traditional plea bargain may shortchange the defendant because they presuppose that

a single entity (the judge) cannot be both a party to the contract and act as a neutral fact-

finder. These guidelines presuppose that an objective and independent forum exists to hear

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any claims of breach of the agreement. The “boiler plate” plea agreement colloquies that

regularly proceed traditional plea agreements in the criminal courts may not be anticipated

by the short-circuiting of the appellate process through the terms of the plea agreement/drug

contract, along with the lack of a written record of court proceedings.

In most jurisdictions, negotiating the charge to which the defendant will plead guilty

is a process of give and take. In the plea agreement/drug court contract, the defendant

generally gives up the traditional right of representation. In some jurisdictions, most notably

the Bronx Drug Court program,335it is necessary for the defendant to plead guilty to the

highest alleged charge to gain entry to the drug court program.

In light of these issues it is likely that the traditional plea bargain procedures may

have to be modified for the unique system of drug courts, namely that the drug court judge is

both the sole interpreter of the terms of the plea agreement/drug court contract and the

enforcer of its interpretation.

Interpretation of Plea Agreement/Drug Court Contract Terms

A main concern of videoconferencing opponents regards control over the legal

process. The less control a defendant has over the process, the more the process can be

manipulated by the prosecution or other forces that do not consider the defendants’ rights or

best interests. Drug courts are marked by this manipulation. Proponents argue that drug

court contacts are designed to foster treatment; critics cite the argument that the judge both

interprets the plea agreement/drug court contract and then enforces it.

335 Attorney Quinn cites many instances where the drug court process creates irregularities with a defendants due process rights and may create a legitimacy problem for courts of law in general.

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The city of Buffalo, New York issues a standard drug court contract that maintains, “I

understand and agree that the drug court Judge [sic] alone will determine whether or not I

have complied with or failed any of the terms of this agreement”.336 It may seem to the

defendant that complying with the terms of the plea agreement/drug court contract depends

on the judge’s subjective standards of assessment. The clauses are standard in many plea

agreement/drug court contracts. In Rhode Island, the clause reads, “If the defendant fails to

abide by the drug court conditions and orders, he she may be terminated from the program

by the drug court judge and sentenced as he or she deems appropriate.”337 The failure to

comply, however, is again not fully articulated. The clauses that grant the drug court judge

the power to terminate a defendant for non-compliance are generally predicated upon

cooperation with the program’s rules and procedures. Unfortunately, these rules and

procedures are often left ambiguous in an effort to maintain flexibility in treatment. The

drug court judge’s interpretation of facts or events may leave the defendant with little power

to refute his authority.

For drug court defendants, definitions of expectations and requirements may not

always be clear. Clauses that state “I agree to fully cooperate with all evaluation and

treatment as required by the court and my case manager” are also ambiguous.338 The

definition of terms like “full cooperation” for undefined “evaluations” and required

336 Washousky, R. City Court of Buffalo (New York) Buffalo Drug treatment Court Process Evaluation. Prepared by Recovery Solutions and Training Inc. for the City of Buffalo. 86 (2001). Videoconferencing and drug courts share the issue of subjective standards for their operations. Until these procedures are standardized, there will always be the risk of abuse of discretion. 337 Administrative Order No. 2001-4. State of Rhode Island and Providence Plantations. (2001). 338 See Washousky at 86. There are many specific examples of vague and ambiguous rules and definitions in the drug court context. This same type of analysis must be performed for videoconferencing. Until a systematic analysis is done, no one knows what the ramifications for defendants will be.

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“treatments” at some future date increase the contract’s ambiguity. Drug court advocates say

these clauses allow for treatment flexibility by granting the judge and treatment staff the

ability to change tactics as the defendant’s situation evolves. The defendant may view these

clauses ambiguities that grant the judge the ability to interpret the terms of the agreement

and sanction termination from the program.

In the Plattsburgh, NY drug court program, the drug court handbook states that

defendants must “… respect the opinions and feelings of other people in drug court …” and

“… are required to dress appropriately for all court sessions, probation and treatment

appointments.”339 With the range of behaviors ranging from rudeness to violent felony

offenses, the judge has wide latitude to sanction different defendants in different ways for

similar offenses.

Compliance may be an evolving concept that drug court defendants do not clearly

understand. A contract clause in the drug court of San Diego states, “I agree to cooperate in

an assessment/evaluation for planning an individualized drug treatment program adequate to

my needs. I understand that my treatment plan may be modified by the treatment provider or

Drug Court Team as circumstances arise, and I agree to comply with the requirements of any

such modifications.”340 The ever-changing landscape of drug treatment may confuse

defendants as to the requirements and allow judges to over reach authority when interpreting

issues of compliance.

339 Plattsburgh City Court Drug Court Handbook. Plattsburg, New York. Available online at. www.courts.state.ny.us/courts/4jd/plattsburgh_city/drugcourt handbook p. 11 (2005). These examples highlight that even when written guidelines are promulgated, there is no guarantee that those guidelines will be written in a manner that is fair to all parties involved. What is needed for videoconferencing is a systematic process for the creation of these rules to help ensure they are fair. 340 San Diego Participant Contract. San Diego Superior Court Adult Drug Court Program. Available online at http://dcpi.ncjrs.orgt/pdf/Participant% 20Contract%20-%20San%Diego,%20CAA.doc p. 1-2 (2005).

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In some jurisdictions, defendant behavior that merits sanctions and/or termination is

reduced to written guidelines. These guidelines are designed to lend consistency to the

sanctioning process. Often, disclaimers that negate their authority accompany such

guidelines. “There is a sanctions/incentives guideline that is a guide to the court for its

decisions,” states the drug court of Mecklenburg County, Charlotte, North Carolina. “The

court is not obligated by the guideline. The judge has discretion but usually follows the

guideline.”341

Changes in the Legal Process

The legal process is a cornerstone of the American criminal justice system, a system

of adjudication and punishment designed to respect the rights and dignities of the individual

and society at large and using incarceration as a severe method of punishment. Incarceration

is regarded as proper for a criminal who has been justly tried and found guilty. “Punishment

is regarded as containing the criminal’s right and hence by being punished he is honored as a

rational being. He does not receive this due of honor unless the concept and measure of his

punishment are derived from his own act. Still less does he receive it if he is treated either as

a harmful animal who has to be made harmless, or with a view to deterring and reforming

him.”342 Hoffman states this assumption is the cornerstone of the American criminal justice

system.

341 Mecklenburg County Drug Court Overview. Supervision, Treatment, Education, and Prevention (S.T.E.P.) Program. Charlotte, North Carolina. P. 3 (2003). 342 Hoffman at 5. The rules necessary for the creation of a fair process for videoconferencing can be divided into the same basic phases as the court system. Pre-trial, trial, and post-trial phases have different goals and different standards. Each can be fashioned to achieve the goals of each phase while eliminating or minimizing any detriment to the defendant.

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The criminal justice process, from a legal perspective, can be divided into three

phases: (1) arrest and pre-trial, (2) adjudication, and (3) sentencing.343 Normally, an arrest

triggers criminal proceedings against the accused. If no plea is bargained, or if the

prosecution does not drop the charges, the process enters the formalized arena of the

courtroom for adjudication (trial). Adjudication triggers rigorous procedures involving the

rules of evidence, the rules of criminal procedure, and both the federal and state

Constitutions. Finally, if found guilty, the accused is sentenced. Under proper conditions,

the accused may appeal the conviction and/or the sentence. While this provides the

framework for the American criminal justice system, notable deviations have been noted

throughout American history. The first deviation was the creation of juvenile court.

Juvenile courts arose during a time of intense industrialization in the United States

encompassing the late 1890s through the 1930s.344 The philosophy behind juvenile court

reflected a belief that, for children, there was the possibility of rehabilitation.

The intention of the framers of the juvenile court system was

admirable. They sought to remove the juvenile from ‘the

apparent rigidities, technicalities, and harshness … observed in

both substantive and procedural criminal law.’ The model was

shifted from punishment to treatment: ‘The child was to be treated

and rehabilitated, and the procedures, from apprehension through

institutionalization, were to be clinical rather than punitive.345

343 Id. 344 Casey at 1483. The goal of drug courts is the treatment of drug offenders with therapeutic treatment rather than punishment. The goal of videoconferencing is to create an effective and efficient system of adjudication in the courts. In either case, without input from both sides, weighing the pros and cons, it is unlikely that a system that is acceptable to both sides will be created. 345 Id at 1482.

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This theory set the stage for the passage of new legislation that created a “new” court system

separating juvenile and adult offenders, and embraced a rehabilitative ideal.346 Accordingly,

judges were permitted to exercise greater freedom in fashioning individual processes and

remedies consistent with the treatment goals and the achievement of greater efficiency.347

Often the need for efficiency was manifested in the power of coercion exercised as part of

the role as “judge.”

The freedom to fashion individual processes and remedies led juvenile court judges to

a capricious exercise of power. The wrongful exercise of power became the critical issue.

“Alteration of procedural process and diffusion of judicial power led to challenges to the

legitimacy of the juvenile courts.”348 The ability of juvenile courts to detain or incarcerate

juveniles was called into question. The intrusion into “the family” was also seen as

unconstitutional. Critics of the juvenile rehabilitative ideal began to express concerns about

a governmental regime that simultaneously treated and punished defendants.349

In the late 1960s through the 1970s, the Supreme Court held that juveniles had the

right to due process, right to counsel, right to confrontation and cross examination, and the

346 Id at 1484. Drug courts are based on a rehabilitative ideal. Videoconferencing seems to be based on efficiency, altruism in the former and economical in the later. Sins can be committed in either case. Review of both procedures are needed for fundamental fairness and due process. 347 Id at 1483. The rationale in drug courts for discretion is that flexibility is needed to fashion a rehabilitation plan and to modify it as needed during treatment. No such rationale has been put forward for videoconferencing. Since no rationale has been articulated for videoconferencing, it only strengthens the argument that formalized rules and processes are needed. 348 Casey at 1483. 349 Hoffman at 6. Legitimacy is a common criticism of drug courts. The same criticism could be made of videoconferencing. Without fair rules, courts become susceptible to criticism that they merely process defendants charged with crimes rather than adjudicates then.

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right against self-incrimination. In the case of In Re Gault, the Court found that juvenile

delinquency proceedings that may lead to being committed in a state institution must

measure up to the essentials of due process and fair treatment.350 The Court held that these

essentials of due process must include:

(1) written notice of the specific charge or factual allegations,

given to the child and his parents or guardian sufficiently in

advance of the hearing to permit preparation; (2) notification to

the child and his parents of the child’s right to be represented by

counsel retained by them, or if unable to afford counsel, that

counsel will be appointed to represent the child, (3) application of

the constitutional privilege against incrimination, and (4) absent a

valid confession, a determination of delinquency and an order of

commitment based only on sworn testimony subjected to the

opportunity for cross-examination in accordance with

constitutional requirements.351

The Court based its ruling on its view that the juvenile court was punishing rather

than rehabilitating the defendant. 352 The Court rejected the rehabilitative or therapeutic

principle of the juvenile courts, “describing the concept as murky and of dubious historical

relevance”353 “The Court concluded that the handling of Gault’s case violated the due

process clause of the Fourteenth Amendment: “Juvenile court history has again

350 387 U.S. 1 This case become a cornerstone for due process arguments in situations where the rights of the defendant were called into question. The ramifications of the expansion of due process rights were far reaching into other areas of the legal process. 351 Id. 352 Id. 353 Id. p 6. The journey from juvenile cases to drug courts to videoconferencing is one that critics of videoconferencing will likely make.

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demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor

substitute for principle and procedure.”354

In the case of In re Winship, a twelve-year-old boy was charged with the theft of

$112.00 from a woman’s purse in a store. A store employee allegedly saw the boy running

from the store after the theft; other witnesses stated that the employee himself was not in the

position to have witnessed the theft.355 The New York juvenile courts operated under a

“preponderance of the evidence” standard rather than “beyond a reasonable doubt”356 and the

boy was declared delinquent and sent to a training school for delinquent youth.

Based on its review the Court held the following:

(1) the due process clause protected an accused in a criminal

prosecution against conviction except upon proof beyond a

reasonable doubt, (2) although the fourteenth amendment did not

require that a juvenile delinquency hearing conform with all the

requirements of a criminal trial, nevertheless, the due process

clause required application during the juvenile hearing of

essentials of due process and fair treatment, and (3) thus

juveniles, like adults, were constitutionally entitled to proof

beyond a reasonable doubt during the adjudicatory stage when the

juvenile was charged with an act which would constitute a crime

if committed by an adult.357

Critics argue that the imposition of procedural requirements on the discretionary

decisions of juvenile court judges, as with drug courts or videoconferencing, removed many 354 Id. p. 9. 355 NCJRS 1999. 356 Id. 357 397 U.S. 358. The procedures that are used at pre-trial hearings, as well as at trial, are used to determine guilty beyond a reasonable doubt. Any substandard rule or procedure that does not aid the trier of fact in making that determination must be subject to review.

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elements that distinguished juvenile courts from criminal courts, and foreclosed forever a

return to the pure rehabilitative ideal.358

Civil Commitment and Coerced Treatment

Civilly committing drug offenders to drug treatment was implemented in the 1930s

and again in the 1960s with relatively poor results. In the 1930s, the federal Public Health

Service established “narcotics farms” in Lexington, Kentucky and Fort Worth, Texas.

Ninety percent of all patients relapsed within one to two years.359 Although the results were

lean, the data did suggest that patients who were involuntarily enrolled in the program and

subject to legal coercion during treatment tended to remain in treatment longer and had better

outcomes than did voluntary patients who left treatment prematurely.360

In the 1960s, the federal government, under the Narcotic Addict Rehabilitation Act

(NARA), and the states of New York and California implemented civil commitment

programs for drug users. In 1963, the California Supreme Court heard the case of In Re

David La O, where the petitioner was charged in a criminal complaint with misdemeanor

drug violation.361 The defendant waived jury trial and was found guilty. The judge

suspended the imposition of sentence and removed the petitioner to the superior court for

evaluation to determine if the petitioner was addicted to drugs and, if so, eligible for

358 Casey at 1482. 359 Marlowe at 989. Standards of proof become a main focus of critics of procedures like drug courts or videoconferencing. The higher the standard, the more scrutiny these procedures are likely to receive. This is why many critics are more comfortable with videoconferencing in the civil rather than criminal context. 360 Id. 361 59 C2d 128 (1963). There are question on whether videoconferencing could be used in misdemeanor cases and not felony cases. The lesser penalties, rather than lesser standards of proof, could be used as a rationale for videoconferencing’s use in minor criminal cases.

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treatment at the California Rehabilitation Center. The petitioner was confined in the

California Rehabilitation Center for narcotic addiction under an order of commitment

pursuant to the California Penal Code. The petitioner challenged the state, through a writ of

habeas corpus, to show cause for his commitment. The Court held, on procedural grounds,

that the petitioner did not have the right to a “standard” appeal because the superior court’s

order of commitment was a non-appealable interlocutory order. The court further held that

the writ of habeas corpus did not apply, as the petitioner has an avenue of appeal through a

“special proceeding.” Extraordinary use of a habeas petition cannot be used until all other

remedies have been exhausted. In Re David La O affirmed the court’s use of civil

commitment as a means of treating drug addicted offenders and the coercive use of state

power in facilitating treatment.362

The New York program was the least effective of the three programs offenders were

not provided with sufficient supervision. Many program participants were rearrested shortly

after fleeing the program.363 Marlowe attributes this failure to the lack of proper legal

coercion. The NARA program showed similar results but for different reasons. The NARA

program failed, according to Marlowe, because “… an unwieldy administrative procedure in

which clients’ movement in and out of the program as well as through all phases of treatment

required new court hearings. The burdens and time delays associated with holding multiple

court hearings reduced the program’s ability to provide meaningful consequences for clients

dropping out of treatment and also greatly increased the costs of the program.”364

362 Id. Civil commitment hearings have a standard that is in between a criminal and a civil case. The standard is known as “clear and convincing.” 363 Marlowe at 991. 364 Id. at 992.

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The California Civil Addict Program (CAP) was more successful than either the New

York or NARA programs. CAP diverted addicts out of the criminal justice system and

committed them to a seven-year civil commitment program. CAP included a substantial

period of incarceration at a minimum security treatment facility followed by an aftercare

program that involved parole supervision.365 CAP reduced criminal activity by

approximately twelve percent and reduced drug use by approximately fifteen percent.366

Despite these results, in the 1970s the program was significantly reduced in scope because of

the high cost of maintenance.367

Despite the successes of CAP, the Civil Commitment model has been abandoned.

Intense supervision over long periods of the recovery process were too expensive. CAP

however, did establish that legally coerced treatment could be effective with appropriate

supervision and adequate lengths of treatment.368

Is Coerced Treatment Effective?

The civil commitment process attempted to use the civil law to coerce drug addicts

into treatment; abandoning civil commitment led to an increased use of criminal law as a

vehicle for coerced treatment. Advocates of coerced treatment maintain that coercion does

365 Id. Success it drug treatment has been through many programs. These programs were evaluated as to their effectiveness as well as their adherence to proper procedures and civil liberties. Videoconferencing must undergo the same analysis. 366 Id. at 994. 367 Id. Effective drug treatment, like effective videoconferencing, is predicated on effective communication and adherence to civil liberties. 368 Id. at 993.

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not undermine a treatment’s effectiveness. In fact, they maintain that legal coercion

increases admission rates in treatment programs and promotes retention.369 Some researchers

support the belief that drug defendants benefit from coerced treatment. Few drug defendants

would participate in treatment without some sort of external provocation, they argue, and that

judicial coercion is a justified vehicle. Critics argue against coerced treatment based on the

rationale that any treatment is only effective when a drug defendant freely submits to

treatment.370

Researchers have studied the question of whether coercive treatment is effective and

complementary to therapeutic results.371 They have found that coercion (punitive sanctions)

and therapy are too contradictory to be used together.372 The research rests on two

completely different ideas, they conclude, and their success or failure depends on different

factors, so they are unlikely to work together. 373 Some researchers even challenge the

conclusion that drug treatment is effective. “Research consistently indicates that comparison

groups that either receive no treatment or drop out of programs tend to improve. Also

puzzling is the finding that programs with contradictory philosophies seem to produce

similar results.”374 Finally, Norland’s review of the research does not indicate that coerced

clients stay in treatment longer than voluntary ones.

369 NCADI 2005. 370 Id. Coercion and drug treatment is problematic at best. The coerced use of videoconferencing is similarly problematic. 371 Norland (2003). 372 Id. Many critics of videoconferencing state that it should be voluntary rather than coerced (mandatory) by the court. Making the use of videoconferencing voluntary, it eliminates the compromised nature of the communication between defendant and attorney as well as any civil liberties issues. 373 Id. 374 Id. at 506.

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Advocates of coercive treatment argue that coercion brings about

longer stays. This presumably relates to success, in turn, because

increasing length of stay should bring clients closer to therapeutic

objectives. But studies do not always show that forced clients

stay longer, and data further suggests that length of stay does not

necessarily result in more success.375

Critics cite many reasons to oppose coerced treatment. Others note:

Some researchers have argued that little benefit can be derived

when a drug user is forced into treatment by the criminal justice

system. Some oppose coerced treatment on philosophical

grounds or constitutional grounds. Others argue against coerced

treatment on clinical grounds, maintaining that treatment can be

effective only if the person is truly motivated to change; a

variation on the position is that addicts must “hit bottom” before

they are able to benefit from treatment, a circumstance that is not

true of most coerced clients. According to this view, it is a poor

investment to devote resources to individuals who are unlikely to

change because they have little or no motivation to change.

Furthermore, in situations where treatment slots are limited, it

may also violate notions of distributive justice to provide

treatment to addicts who don’t really want it – even if they might

benefit from it – ahead of (or instead of) those who do desire

treatment. 376

375 Id. The success of any hearing or trial is contingent upon a working attorney-client relationship. Videoconferencing may be in to way of this relationship. This compromises the system and constitutional protections. 376 Anglin at 3.

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Critics state that such research addresses two long-standing dilemmas: the lack of

interest among offenders in seeking drug assistance, and their strong likelihood of dropping

out of such a program. “Key ideas are that a recalcitrant drug user can be forced to become a

patient and kept there until success takes place. An assumption here is that legally coerced

people tend to remain in treatment longer than voluntary admissions.”377

The courts have answered some of the issues concerning “illness,” “crime” and “civil

commitment” for drug addiction. In Robinson v. California, the U.S. Supreme Court heard

how a police officer arrested Robinson, who displayed needle marks on his arm consistent

with drug abuse, on the misdemeanor charge of “being addicted to the use of narcotics.”

Robinson was convicted and sentenced to ninety days in prison. The Court ruled that

California law violated the cruel and unusual punishment clause of the Eighth Amendment to

the Constitution. To be addicted to narcotics “is apparently an illness,” said the Court, and

that because the State cannot punish people for an illness, a conviction must be for a specific

act.378

The Court further held that if an accused is properly deemed ill, such person can be

involuntary committed for treatment. As Justice Douglas states in Robinson,

The addict is a sick person. He may, of course, be confided for treatment or for the protection of society. Cruel and unusual punishment results not from confinement, but from convicting the addict of a crime. The purpose is not to cure, but to penalize. A prosecution for addition, with its resulting stigma and irreparable damage to the good name of the accused, cannot be justified as a

377 Norland at 505. The constitutional violations of drug courts and drug treatments through the courts are similar to the issues of videoconferencing. 378 370 U.S. 660 1962.

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means of protecting society, where civil commitment would do as well.379

Despite some concerns, there is considerable evidence to substantiate the supposition

that coerced drug treatment can constitute effective drug treatment.380 Advocates of coercion

believe that waiting for addicts to “hit bottom” or have some other catharsis while they do

harm to others may not be the best solution. Others argue that an outside motivation

(coercion) is necessary for greater numbers of addicts to enter and remain in treatment.381

This argument is extended to the State because drug abuse is a burden to society, and the

criminal justice system is obligated to force offenders into treatment to safeguard society as a

whole.

More recently, a study evaluated the effectiveness of the Dade County, Florida drug

court. Their research supports the supposition that coercion works. Of the 245 participants

studied, 40% had unfavorable outcomes (dropping out, disappearance, or termination) and

60% had favorable outcomes (graduated from the program). Participants in the favorable

outcome group showed lower re-arrest rates as well as longer time periods before re-arrest.382

The growing belief that coercing drug users into treatment can be an effective

approach to the drug problem has resulted in more offenders being directed towards this

route. “Criminal justice referrals constitute a substantial proportion of the publicly funded

379 Id. at 607. The safeguarding of the system is a safeguard to society. By ensuring that proper procedures are followed (for both drug treatment and videoconferencing) , both defendants’ rights and society is protected. 380 Norland at 506. 381 Anglin at 4. 382 Id. Just as drug courts have been deemed as efficient to the criminal justice system, the widespread use of videoconferencing is being pushed upon the system to take care of overburdened dockets rather than for the benefit of the defendant.

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drug treatment population in the United States. According to recent data, the criminal justice

system is responsible for 40 to 50 percent of referrals to community-based treatment

programs.”383

Treatment Alternatives to Street Crime Programs

In the 1970s, programs emerged called Treatment Alternatives to Street Crime – now

renamed Treatment Accountability and Safer Communities – (TASC). TASC programs are

based on a linkage model and place less emphasis on expensive treatment programs and

more emphasis on the surveillance of offenders to monitor compliance. They are designed

to bridge the gap between the criminal justice and drug treatment systems to help a drug

offender receive treatment. These programs are designed to provide additional monitoring

by probation/parole, treatment staff, and the community, and target young, nonviolent, high-

risk drug offenders. TASC’s main goal is to lower the probation/parole failure rate due to

drug offenses and drug-related behavior. Many TASC programs aim to interrupt the cycle of

addiction, arrest, prosecution, conviction, incarceration, release, re-addition, and re-arrest.384

Federal guidelines for TASC programs include the objectives (1) Identification, (2)

Assessment, (3) Referral, and (4) Case Management/Monitoring.385 In the Identification

phase, a probation/parole officer identifies an offender who qualifies for the program.

Qualified offenders are identified by their age and past history of violence, drug offense, and

criminal activity. In the Assessment phase, the probation/parole officer evaluates and

383 Anglin at 3. Public funding of programs often mandates standardized rules and procedures. As it stands now, videoconferencing is often funded at the court level and is not subject to any standardized rules or procedures. 384 Prouty 1993. 385 Id. Federal guidelines for drug programs offer protection. Similar protections through mandated guidelines would ensure protections fro videoconferencing.

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identifies the type of treatment an offender may receive based on availability, need, and

assessment of effective treatment. In the Referral phase, the probation/parole officer uses

Assessment information and a list of available treatment options to match the offender to an

appropriate treatment intervention program. Finally, offenders are closely monitored for

relapse, criminal behavior, and general demeanor related to drug abuse during the Case

Management/Monitoring phase. Monitoring can include direct contact with the offender,

family members, employers, and treatment personnel on a regular basis. Frequent drug

testing is also a part of the monitoring phase to ensure compliance with the program.386

TASC programs still exist in some cities, but their support and popularity has fallen

considerably since the late 1970s and early 1980s. Their goals and ideas seem to have

evolved into more supervision models than a treatment models.

TASC programs have operated differently across jurisdictions, making it difficult to

assess their effectiveness. Under the pretrial TASC model, early evaluations concluded that

TASC was effective in identifying drug offenders and making appropriate treatment

referrals.387 Further, pretrial TASC offenders tended to remain in treatment longer than

unsupervised offenders.388 In 2001, the ONDCP and the National Institute of Justice

sponsored a program called “Breaking the Cycle” (BTC) in four cities. These programs

operated as an extension of TASC, providing additional resources for drug testing and case

management services for pretrial offenders. Data for the Birmingham, Alabama program

indicates the BTC program produced statistically significant reductions in re-arrest rates, 386 Id. The evaluation of these programs resulted in more effective treatment as well as more protections for individual defendants. Videoconferencing would benefit from evaluations that would research effectiveness and outcomes. 387 Marlowe at 991. 388 Id.

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self-reporting drug use, and criminal activity among pretrial offenders.389 Results were

expressed in “predicted probabilities” (projections) rather than quantitative measurement

based on actual numbers, making it difficult to precisely measure the effects. The results

can, however, be interpreted to say that community–based monitoring of treatment

compliance by offenders tends to reduce recidivism.390

Drug courts lessen the strain on the criminal justice system by offering drug offenders

an opportunity to rehabilitate under intense supervision without the high costs of

incarceration. Videoconferencing is likewise supposed to lessen the strains on the legal

system. It can be argued that videoconferencing and drug courts constitute a new and

evolving institution that adapts as new issues and circumstances arise.

Critics question the legitimacy of these new processes on many levels. Drug courts

treat the plea agreement/drug court contract as binding, but the contract may not satisfy the

basic tenets of contract law and may fail as a entry to drug court, rendering the plea

agreement/drug court contract invalid. A traditional courtroom has all the trappings, but

drug courts often lack constitutional protections, do not apply the rules of criminal

procedure, and do not use the rules of evidence. The drug court judge is essentially a

traditional judge, but is an active party to the plea agreement/drug court contract and

proceedings, making the their discretion overarching. A drug court defense attorney is often

present for the defendant, but does not zealously represent the rights and liberties of the

defendant as does a traditional attorney; attorneys are instead part of the “therapeutic

389 Id. 390 Id. The drug court judge, like a videoconferencing judge, has a great deal of discretion in the use and operation of the program. The overarching discretion in both cases compromises the process and may render any benefits moot.

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treatment team” more concerned with the defendant’s treatment than their constitutional

rights. These issues raise concerns about drug courts and the unbridled consequences that

may result outside of the proper safeguards employed by traditional courts.

Drug courts and videoconferencing are both here to stay. Nevertheless, legal and

empirical analysis has shown that there are issues, and accommodations must be found to

make them fairer and legally compliant. A possible solution to the predicament of the drug

court judge as both party and fact-finder of the plea agreement/drug court contract may be

simply to have the judge not be a signatory to the agreement. The drug court judge’s role

can continue be the more traditional of a neutral, detached, fact-finder, while another

member of the therapeutic treatment team can facilitate the plea agreement/drug court

contract. Eliminating the judge as a signatory removes the dual, conflicting roles under

which the drug court judge currently operates.

Another possible solution is to re-write plea agreement/drug court contracts so that

the drug court judge is not granted such overarching powers as part of the agreement.

Altering the language may negate the power of the judge as both party and fact-finder of the

contract. Toning down the language that grants the judge “sole discretion” to determine

whether the defendant has complied with the contract would provide a viable solution.

Allowing the judge to unilaterally modify plea agreement/drug court contracts (and

essentially changing the “deal” to which the defendant initially assented) would help

alleviate the concerns raised by the judge being both signatory and fact-finder.

The plea agreement/drug court contract issue, where consideration may not be valid

because the State is both a party to the agreement as well as the fact-finder, must be

overcome to make the contract binding. Removing the drug court judge’s ability to render

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the consideration illusory is necessary. In the drug court context, the judge has such a high

degree of discretion in interpreting and enforcing the court contract that such discretion

creates a unilateral right to terminate or an option contract. Affirmative language to limit the

judge’s right to take such actions may be another way of avoiding a failure of consideration.

A more radical solution would be to remove the drug court process from the judiciary

of the criminal justice system to the corrections segment. The drug court judge would not be

a signatory to the agreement, just as a probation-hearing officer is not a signatory to a

defendant’s probation conditions. The drug court could be run more like a probation hearing

and utilize drug court procedures. Further, moving drug courts from the judicial branch to

the executive branch of government allows for a probation-like appeal. Probation hearings

have a lower due process requirement than court hearings and this would facilitate the speed

that drug court defendants require for proper therapeutic treatment.

Videoconferencing and drug courts are expanding at a rapid rate throughout the

United States. Their use is problematic, but the dialog concerning their use is not. The

conversation and examination will guide the use of videoconferencing, drug courts, and all

other innovations towards fairness. It is imperative to review their procedures and practices

empirically to ensure they are consistent with proper legal doctrine and constitutional

principles.

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CHAPTER FIVE – RESULTS OF SECONDARY ANALYSIS OF NCSC STUDY

Method and Data

The National Center for State Courts (NCSC) collected the data in 2010, supported by

the State Justice Institute. One hundred and sixty four state court administrators from every

state in the nation responded. In the first study of its kind, this research focused on courts

that use videoconferencing when the attorney is in the courtroom and the defendant is at a

remote location, such as prison. The study employed social scientific techniques to explore

the assumptions of both proponents and critics on the use of videoconferencing. Using a

non-partisan analysis of the data, 111 responses were gathered from across the nation to shed

light on the realities of videoconferencing. The data and results aim to provide guidelines to

courts and policy-makers on the use of videoconferencing and how to move forward with

this technology in the future. Of the 164 responses, 53 of the courts surveyed indicated that

they did not use videoconferencing, and were removed. See Figure 1.

Quantitative Results FIGURE 1.

SURVEYED COURTS USING VIDEOCONFERENCING WHEN ATTORNEY IS IN THE COURTROOM

TOTAL REPONSES

164

N = 111

RESPONSES INDICATING NO VIDEOCONFERENCING

35

DID NOT INDICATE

18

TOTAL USED

111

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Of the 111 courts surveyed in this research, 41 courts (36.9%) indicated that there is

no provision for private communication between attorney and client when attorney is in the

courtroom and the client is at a remote location. Of these, 41, 25 courts indicated that there

is no provision for private communications without any explanation; 16 provided an

explanation. These explanations included “cannot ensure” or “don’t know” when it came to

issues of privacy. See Figure 2.

Examining the Data

FIGURE 2.

BREAKDOWN OF SURVEYED COURTS USING VIDEOCONFERENCING WHEN ATTORNEY IS IN THE COURTROOM

NO PRIVACY IN VIDEOCONFERENCING

DESCRIBED

25

N = 111

NO PRIVACY

16

PRIVACY IN VIDEOCONFERENCING

70

TOTAL RESPONSES

111

Analysis of the data indicates trends that suggest critics may have valid concerns. Of

the 111 videoconferencing programs observed, 41 (36.94%) have no provisions for private

communications between attorney and defendant. If a client cannot communicate with their

attorney during a hearing or trial, the quality of legal representation will likely be diminished.

Because such a large percentage of programs enable no private communication between

attorney and client, analyzing the quality of communications in such circumstances is moot.

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B. The Results The data indicates that courts that use videoconferencing experience privacy issues

between attorneys in the courtroom and clients located at a remote facility such as a jail or

prison.

The great majority of cases (79.3%) are criminal cases. Of those criminal cases,

28.8% indicate privacy issues between a defense attorney and their client when they

communicate via videoconferencing. This means that more than one in four defendants

cannot have a private conversation with their defense attorneys in open court, and that these

state courts have made no provisions for private communication. While the survey does not

answer why these courts have failed to provide channels for private communication, the

attorneys who were interviewed in the next section (infra) indicate that many clerks and

judges merely have failed to consider such communication, or believe that private

conversation between defendant and attorney in open court is unnecessary. In criminal

cases, the importance of private communication between attorney and client cannot be

minimized.391 The diminution of private communication can only result in less favorable

outcomes (i.e. higher bail amounts, negative results for pretrial hearings, guilty verdicts) for

defendants. See Figure 3.

391 The research shows that the data for the use of videoconferencing for criminal cases is no better than for other cases. In a realm of the law where the ramifications of error are greater and the standards of proof higher, videoconferencing in criminal cases has the same problems and issues as in other cases. Videoconferencing in criminal cases must have higher standards and rules than in civil cases to ensure the rights of defendants are not negatively impacted.

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FIGURE 3.

CRIMINAL CASES AND PRIVATE COMMUNICATIONS VIA VIDEOCONFERENCING BETWEEN ATTORNEY AND CLIENT

WHEN ATTORNEY IS IN THE COURTROOM

PRIVACY NO PRIVACY TOTAL CRIMINAL CASES 56 32 88 NON-CRIMINAL CASES 12 11 23 TOTAL 68 43 111 N = 111 The survey shows that more than a third of videoconferencing systems (36.9%)

experience equipment failure with physical components on a regular basis. These failures

concern issues with wiring, electricity, basic structural features, or combinations thereof;

other failures include problems with emphasis on bandwidth, aging equipment, and power

issues. Equipment failures can only result in delays in hearings, in little or no

communication between attorneys and defendants, and increased costs. See Figure 4.

FIGURE 4.

COURTS USING VIDEOCONFERENCING THAT HAVE EXPERIENCED EQUIPMENT FAILURES WITH PHYSICAL COMPONENTS

WIRING FAILURES

18

N = 111

ELECTRICAL FAILURES

6

STRUCTURAL FAILURES

4

OTHER TOTAL FAILURES

13

FAILURES

41

Other studies reflect these conclusions. “Many observers regularly witnessed

attorneys and clients becoming frustrated because they had no privacy,” said one court

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administrator.392 “The use of videoconferencing is marked by persistent problems with

equipment, presentation of evidence, access to counsel, interpretation, and assessment of

credibility,” reported another.393 Problems related to accessing counsel took place in one in

six hearings (119pprox.. 17%).394 Problems experienced during a videoconferenced hearing

(access to counsel, evidentiary/testimonial, interpretation, equipment/technological) is

44.5%.395

In a separate section, the data indicated other widespread and chronic problems,

accounting for 22.5% of the issues. These problems highlight operator issues including

“buy in” (by judges, clerks, and attorneys), equipment operator training, operator error, and

scheduling. See Figure 5.

FIGURE 5.

COURTS USING VIDEOCONFERENCING THAT HAVE EXPERIENCED OTHER COMMON PROBLEMS

COMMON PROBLEMS 25

N = 111

TOTAL RESPONSES 111

Properly training court personnel to use videoconferencing equipment effectively

would go a long way in remedying many issues. A major contributing factor to the problems

with videoconferencing is the lack of experience many courts have with the technology.

Further, budget constraints often leave courts with dated and inferior equipment.

392 Grant supra note 39, at 40. 393 Id. at 51. 394 Id. at 6. 395 Id. at 36.

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Videoconferencing equipment vendors, and social scientists with experience and training on

the proper use of the equipment, offer the best help in minimizing many of the negative

issues of videoconferencing. Court personnel use the equipment itself and control the

manner in which it is used. Some studies have shown that a number of users expressed

frustration with the ineffective technology because of an inability to set an agenda in

advance. It has been further observed that videoconferencing may not be suited for users

unfamiliar with electronic communications.396 Trained court personnel who control and

maintain the videoconference equipment can then inform attorneys and clients of simple

ways to make videoconferencing communication more effective (looking into the camera,

the placement of equipment, allowing for lag times, etc.).

Proponents often claim that better technology397will minimize or eliminate any

problems concerning videoconferencing. And yet, sub-par technology is remedied most

easily. Video technology is currently available that offers clear, synchronous

communication. Private communication between defendants and attorneys on a secure line

can be offered with little technical difficulty. The problem associated with installing or

upgrading suitable technology is more fiscal than technological. Tight budgets are more of

an impediment to remedying this issue than any other.

396 Torres, Preskill & Piontek, supra note 17, at 198-199. 397 There is an assumption among proponents that as time goes on that the issues and problems with videoconferencing will be worked out. Unfortunately, the data does not support this assumption. Procedures used by court personnel become entrenched and are not changed. Further, due to budgetary restrictions and limitations, the videoconferencing technology is not updated as often as necessary. As such, videoconferencing issues and problems become imbedded and are not alleviated over time. Worse still, the newer programs are often patterned on older programs adopting their older procedures and technologies perpetuating the negative aspects videoconferencing.

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The claim is that newer video technologies provide clearer, true-to-life images to

enable a client and attorney to establish a trusting, working relationship. The data does not

bear this out. The study shows there is little difference between the newer and older

technologies. The percentage of videoconferencing programs (0-10 years old) that offer no

secure private communication is 39.1%. The percentage of programs 10 to 20 plus years old

offer 32.4% private communication. Not only is there no trend in the newer programs

offering a greater percentage of private communications, to the contrary, there are fewer

newer programs offering such communications. While privacy issues do not seem to have

much to do with equipment quality, opponents of video conferencing see it all as another part

of the problematic use of videoconferencing. For critics, this is a disheartening trend to say

the least. See Figure 6.

FIGURE 6.

AGE OF VIDEOCONFERENCING SYSTEM AND PRIVATE COMMUNICATIONS

VIA VIDEOCONFERENCING BETWEEN ATTORNEY AND CLIENT WHEN ATTORNEY IS IN THE COURTROOM

AGE OF SYSTEM 0 TO 10 YEARS 10 TO 20+ YEARS TOTAL PRIVACY 43 23 66 NO PRIVACY 27 11 38 TOTAL 70 34 104 N = 104 The NCSC data provides a window into the use of videoconferencing in the

courtroom. The analysis done in this dissertation shows some of the challenges of its use and

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will offer some solutions to those problems. Nevertheless, the NCSC data analysis only

gives limited view of these challenges. This dissertation further provides an assessment of

the use of videoconferencing by interviewing defense attorneys about its use. These

interviews are designed to provide (1) context to the NCSC data analysis and (2) check the

accuracy of the data’s conclusions concerning the areas analyzed. Giving context to the data

provides a framework to the interviews through the two theories of Information Integration

Theory and Emergent Meaning Theory. Further, interviewing helps check the data’s

conclusions by digging a bit more and allowing individuals involved in the process (defense

attorneys) to expand upon the analysis of the NCSC data. While interviewing all persons

involved in videoconferencing (judges, clerks, prosecutors, IT people, and defendants) would

be exceptional, defense attorneys offer an ideal first step in this initial research.

The data from the NCSC highlighted by court administrators presents the problematic

issues of videoconferencing, among them attorney-client privacy concerns, equipment

failures, poor user training, and substandard equipment. Attorneys were interviewed and

recorded to flesh out their views on these issues.

Interviews are necessary to study this often-subtle phenomenon. They allow an in-

depth look behind the NCSC numbers in the examination of videoconferencing. They focus

on questions the NCSC data does not answer. These questions focus on whether

videoconferencing significantly affects the dynamic of the legal process and the attorney-

client relationship. The attorneys’ answers supplement the NCSC data and center around

two contrasting theories: the Emergent Meaning Theory, which states that videoconferencing

would significantly impact the legal process; and Information Integration Theory, which cites

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little or no impact. The questions and answers were collected and grouped around common

themes presented in the next section.

Qualitative Study of the Issues Raised by NCSC

Methods

Twenty Massachusetts attorneys were interviewed for the qualitative data. The

attorneys were recruited through a snowball sample. At the end of each interview, each

interviewee was asked to provide the names of other attorneys who might be interested in

participating in the sample. These additional attorneys were then contacted and asked to

participate (see addendum A). New attorneys who participated in turn referred more

attorneys and thus built the sample. Of the thirty-one attorneys contacted, twenty agreed to

participate.

At the time of the interview, these eleven male and nine female attorneys were

between the ages of 31 and 70. Twelve of them self-identified as Caucasian, one as African

American, one as Asian, four as Hispanics/non-Whites and two as Other. These attorneys

worked for 14 criminal practices and six civil practices. Some attorneys had recently passed

the Massachusetts Bar Exam and some have been practicing for over thirty years. (The

breakdown: three attorneys with 1–4 years of practice; four attorneys with 5–9 years of

practice; four attorneys with 10–14 years of practice; two attorneys with 15–19 years of

practice; two attorneys with 20–24 years of practice; one attorney with 25–29 years of

practice; and four attorneys with 30+ years of practice). Of their ages, three attorneys were

between 25–34 years of age; six attorneys were between 35–44 years of age; three attorneys

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were between 45–54 years of age; four attorneys were between 55–64 years of age; and four

attorneys were between 65–74 years of age.

The questions were designed to give context to the NCSC data and viewed through

the prism of Emergent Meaning Theory and Information Integration Theory (see addendum

D). Specific questions concerning the elements of each theory were asked to illuminate the

strengths and weaknesses of each theory in relation to videoconferencing.

Establishing trust with attorneys concerning their anonymity can be difficult. They

are trained to look past the plain meanings of questions for inferences that are often not there.

Their trust was established by assuring them that their identities would not be revealed,

explaining that procedures of anonymity would be maintained, and having them sign an

Informed Consent to Participate Agreement. It became clearly obvious from the earliest

interviews that recordings of any kind had a chilling effect, with many attorneys declining to

have their interviews recorded. Giving them specific assurances of human subject

protections were explained and went a long way towards putting them at ease. They were

informed that human research was protected by federal regulations, and some asked for the

citation. They were also informed that Northeastern University has extensive protocols for

research and all materials had been vetted beforehand. As attorneys, they understood their

legal rights and were clear that that they did not have to answer all questions. All the

interviewees were over twenty-one years of age and competent to answer questions.

All the interviewed attorneys allowed notes to be taken during the interviews, which

added to a sense of trust and comfort. Aside from the specific questions on basic information

(age, years of practice, etc.), questions were open-ended to allow more detailed answers.

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The participants were asked follow-up questions to clarify responses or to gain more specific

information.

Based on the answers to the questions, attorneys were sorted into two categories

depending on whether their answers shed light primarily on the Emergent Meaning Theory

or the Information Integration Theory. Placing the attorneys into each category was based

on several gauges. First, I reviewed the detail and length of their answers on the series of

questions based on the individual theories. The review identified as to whether the answer

focused on the Emergent Meaning Theory or Information Integration Theory, respectively.

Emergent Meaning Theory: 1. What, if anything, does videoconferencing (the technology) make better (enhance) in

the attorney-client dynamic in the courtroom? What does videoconferencing amplify or intensify?

2. What does videoconferencing (it) change or replace in the attorney-client dynamic in

the courtroom (make obsolete)? What the medium drives out of prominence. 3. What does videoconferencing bring back from the past that may have been missing

from the attorney-client dynamic in the courtroom (What does it retrieve)? (i.e. a closer, more personal relationship. More frequent contact between attorney and client, etc.).What the medium recovers which was previously lost.

4. What do you see videoconferencing in the future with respect to the attorney-client

dynamic in the courtroom (becoming does it become when pushed to extremes)? What the medium does when pushed to its limits.

Information Integration Theory: 1. Variable that may make a difference in videoconferencing with respect to: Type of Charge. 2. Variable that may make a difference in videoconferencing with respect to: Prior convictions.

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3. Variable that may make a difference in videoconferencing with respect to: Ties to the community. 4. Variable that may make a difference in videoconferencing with respect to: Theory of case/Recommendation of the Prosecutor. 5. Variable that may make a difference in videoconferencing with respect to: Theory of case/Recommendation of the Defense.

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Qualitative Results

Emergent Meaning Theory: Trust in the Attorney-Client Relationship

Videoconferencing can have a chilling effect on the attorney-client relationship. Abel, a fifty-two year old defense attorney, maintains that trust is the cornerstone of a

working relationship. Videoconferencing removes vital elements of that trust and makes it

harder to establish a relationship. Emergent Meaning Theory states that the same message

will be altered when transmitted through a different medium. Abel believes that

videoconferencing could lose or misinterpret all the traditional devices used to establish and

maintain trust with a defendant and be detrimental to the effectiveness of legal

representation.

Abel believes that videoconferencing intensifies the aspects of human interaction that

stunt the creation of trust. Further, he is certain that videoconferencing limits or eliminates

characteristics that aid in creating trust – visual cues, body language, and eye contact. Abel

states that open communication between client and attorney is not always verbal. A look, a

cough, or a touch on the shoulder or arm can be needed in the courtroom. These things only

have meaning if the attorney and client trust each other, and can only take place with

physical presence. Abel’s views address the importance of the attorney-client relationship,

especially in court.

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Videoconferencing can hinder the building of a trusting relationship between attorney and client. Barbara, a twenty-nine year-old immigration attorney, said that because attorney and

a client only spend a short but critical amount of time together (often because of the nature

between a public defender/assigned counsel and a defendant), videoconferencing might delay

the formation of trust. A medium that could possibly interfere with that trust is an

impediment to the necessary communication between attorney and client. She states that

trust is more necessary in an immigration context than in other situations. Her clients are

often bewildered and overwhelmed, and rely on the guidance of their attorney.

The medium of videoconferencing makes it difficult for attorneys and clients to connect. They can’t read each other. Abel notes that attorneys and clients typically “size each other up” during the

preliminary phases of the relationship. Reading visual/verbal/body language cues is more

difficult or impossible when people are not physically present with each other. It may

amplify the uncertainty that hampers the formation of trust. The early phases of the

relationship can develop during private conversations and preparations, but often the first

time an attorney and a client meet is in the courtroom. Many times public defenders and

contract attorneys do not have the luxury of preliminary private communication with their

client, and first meet their clients at an initial hearing. Videoconferencing limits the

opportunity for building trust.

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In a videoconferenced hearing, there is sometimes a lag time between speaking and hearing. Videoconferencing can throw off the give and take between a client and the courtroom. Barbara elaborates by saying that any glitch in videoconferencing technology often

impedes the flow of communication between attorney and client. This working relationship

is often started under stressful circumstances and with little time to accomplish significant

legal strategy. The imperfection of the technology (compared to face-to-face interactions)

often makes a difficult process more challenging and hinders the formation of trust. In cases

of language and cultural barriers, videoconferencing also makes a difficult process harder.

Videoconferencing creates trust issues between attorney and client. Charles, an attorney between sixty-four and seventy-five years old, believes that

important things are done in person. Important news, ceremonies, and confrontations are

shared face-to-face. Videoconferencing can trivialize the attorney-client relationship and

make the defendant feel less important to the attorney than the clients whom the attorney

meets with in person.

Here the medium contributes to the defendant’s perceived trivialization as compared

to other defendants. This would intensify any feelings of insecurity or powerlessness that the

defendant might feel in the courtroom and create issues with the attorney. “Creating trust is

hard enough without making it harder using videoconferencing,” Charles states. He admits

videoconferencing has its uses, but should be used at the discretion of the attorney and client.

Videoconferencing creates a negative attorney-client relationship. Charles further voices frustration that technological issues or perceived issues of trust

could hamper the attorney–client relationship over the life of the representation. Because

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counsel is often assigned to a defendant (through the public defender program or through

contract counsel), the attorney and the defendant are often “stuck” with each other. When

Charles feels forced to use videoconferencing, he feels he must counteract the frustration and

negative perceptions video technology creates.

Videoconferencing creates distance between parties. Donna, a defense attorney between thirty-five and forty-four, stresses the importance

of attorney and defendant establishing a good working relationship as soon as possible.

Anything that limits or hampers that formation is detrimental. Videoconferencing puts a

perceived and literal distance between attorney and defendant that only lessens the

effectiveness of the representation. Videoconferencing intensifies that distance and lessens

the opportunity for client and attorney to form trust.

What inhibits an establishment of trust and perception of justice negatively impacts the attorney-client relationship. Erik, a defense attorney between forty-five and fifty-five years old, cites the real

danger in the perception that videoconferencing creates a two-tiered justice system. In such

a scenario, poor and indigent defendants are forced through a system that uses

videoconferencing, while people of means are afforded more effective face-to-face justice.

The perception of inequality in the justice system can only impede the formation of trust

between attorney and client and the system as a whole. Erik hopes that this technology will

not be carried out to its logical conclusion and becomes the rule at trial, while human

presence becomes the exception.

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Some drawbacks of videoconferencing (the lack of eye contact, for example) make accessing the truth and building trust between attorney and client more difficult. Francis, a defense attorney between fifty-five and sixty-four years old, notes the well-

established truism that eye contact helps people assess trustworthiness. Poets say that a

person’s eyes are a reflection of their soul; social scientists support this observation.

Limitations in videoconferencing technology (static, video and picture quality) may impede

eye contact. Further, maintaining eye contact while considering camera angles and video

monitors is a learned skill. Hollywood has made equipment placement a science, and actors

study how to show that a character is trustworthy or not.

Face-to-face representation is always more effective for the client. Representing clients via video makes it harder to build trusting relationships. Videoconferencing is more than just getting through the process; it lacks respect for the client or the process. Gary, a thirty-one year old immigration attorney, points out that videoconferencing’s

main goal is to streamline the legal process. The technology has been instituted by the state

for the sake of efficiency, but with little regard for its consequences past the phase of the

justice process (like a hearing) in which it is used. The state has no data or research to back

up this claim that there is no detrimental effect on the defendant. Videoconferencing should

not be widely used until it can be proven that its negative aspects will not hamper or

exacerbate the formation of the trust necessary between attorney and client.

Videoconferencing has a chilling effect on the attorney-client relationship. Harriet, a defense attorney between forty-five and fifty-four years old, states that

videoconferencing literally places a medium between attorney and client, which impacts that

relationship. Whether that impact is minimal or significant is a real concern for many of the

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defense counsel interviewed. These counselors feel that, with videoconferencing, they are

less effective in representing clients and were constantly struggling to compensate for the

negative effects of videoconferencing on establishing trust, as well as effecting issues of

interviewing and representation in a courtroom.

Less Communication Communicating with clients is not just visual or verbal; a gesture or touch can be just as important. Abel relates that attorneys often communicate with their clients with a physical touch

or gesture. The touch could be reassuring or cautionary, depending on the circumstances.

Other subtle gestures, such as a raised eyebrow or facial expression, are often used to

question a statement, show surprise, or indicate a lack of trust or belief. Videoconferencing

can hinder or eliminate this interaction between attorney and client.

I don’t want to replace human interaction in the courts because too much is lost. Harriet states that because so much communication is conducted in person, many

attorneys are fearful of losing this ability to communicate effectively with their client.

Interaction is three-dimensional, not two-dimensional. The three dimensions of human

contact conveys more information than the two dimensional aspect of videoconferencing.

The information lost by videoconferencing negatively impacts attorney-client

communication, especially private communication in the courtroom.

Videoconferencing allows for no touch, sidelong glances, or small human interactions necessary for effective courtroom communication. Ivan, an attorney between fifty-five and sixty-four years old, states that

communicating with a defendant is more of a holistic experience that goes beyond speaking

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and listening. This is especially true early in the attorney-client relationship, when

communication is most important – not only is communication about the case being

exchanged, but the type of people they are and their strategies and goals are established.

While videoconferencing technology offers the chance for more contact, it offers less communication. Donna relates that although videoconferencing makes it often more convenient to

speak to clients (especially incarcerated clients), the quality of communication is inferior to a

face-to-face meeting. Given a choice, attorneys prefer face-to-face communication.

Technology has dumbed down our communication temperament. Donna also adds that technology tends to degrade quality communication. She

believes that although technology creates more opportunities for communication (Skype,

iPhone, etc.) and has become ubiquitous, the quality of these technologies erodes our sense

of valuable communication. Low quality technology is so prevalent it demonstrates people’s

acceptance of low-grade communication. This may be acceptable for more pedestrian

communication, but not interactions between attorney and client.

More communication, no matter the quality, can be a plus. Videoconferencing could offer the client an opportunity for greater involvement. Erik notes that proponents focus more on the quantity of communication, rather than

the quality. Supporters see more opportunities for communication as an aggregate “win,”

rather than a liability. The plusses, they say, outweigh the minuses.

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Videoconferencing could offer the chance for more communication if used properly. Erik further adds that videoconferencing could have a proper role in the criminal

justice system so long as it is used effectively. Proponents see videoconferencing as a new

technology with great potential; as time goes on, it could become a great asset to an

overburdened system.

Any medium other than face-to-face interaction should assist the defendant, not take things away from the courtroom experience. Harriet elaborates that proponents videoconferencing often view the technology as

helpful to the criminal court system. Proponents see it as a replacement for traditional face-

to-face interactions, while critics see it as a supplement to the same (much like the telephone,

e-mail, etc.). Critics maintain that videoconferencing has a negative impact on the attorney-

client relationship, especially on private communication in the courtroom. Emergent

Meaning Theory maintains that the medium impacts the message.

Videoconferencing loses the intangibles: a defendant’s tattoos (gang affiliations), their physical size (especially in comparison to the victim), or their subtle reactions to comments and procedures in the courtroom can be obscured or eliminated. Jennifer knows that some prosecutors are not proponents of videoconferencing. She

feels that some defendants could “hide” behind videoconferencing so that a judge or a jury

could not properly assess them. Communication is always transacted in the context of the

medium in which they are conveyed. Legal communication between attorney and client is

subtle and complex. The communication becomes less effective as the intangible qualities

get lost.

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Private Communication between Attorney and Client Videoconferencing offers no private communication between attorney and client in the courtroom. Kyle, an immigration attorney between the age of fifty-five and sixty-four, relates that

a major issue with videoconferencing is that it does not allow private communication

between defendant and attorney in a significant percentage of state courts. The technology

was designed for open communication, but does not differentiate between public and private

interaction.

With videoconferencing, the judge had to clear the courtroom so I could speak privately to my client. After a while this practice had a chilling effect on that communication. You can only ask for that allowance so many times. Linda, a thirty-five to forty-four year old defense attorney, understands that many

courts recognize the lack of opportunity for private communication between attorney and

client. Unfortunately, the ad hoc remedies are often inadequate. In many cases, the court-

proposed “solutions” create new problems for a defendant and attorney. She touched on

issues with lighting, volume, and comprehension.

Videoconferencing is too distant. It does not allow for a whisper or a touch. Charles holds that “private communication” does not only mean formal speaking in a

private room with the door closed. Attorneys state that private communication often

involves just a whisper or a touch. The physical separation videoconferencing creates does

not allow for private communication, which creates an inferior dynamic.

Defense attorneys cannot counsel clients without private communication.

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Francis reiterates that private communication between defendants and attorneys is

critical. Without it, legal assistance is limited. Many of the defense attorneys interviewed

indicated that the limitations videoconferencing introduces is significant enough to impair

representation.

Videoconferencing could help the attorney-client courtroom communication if standardized rules were adopted regulating the medium. Abel thinks that standardized rules are necessary to help alleviate videoconferencing’s

detrimental effects. These rules should be specifically aimed at creating a friendlier

environment for private communication between criminal defendant and counsel.

People in the courtroom often don’t understand the impact of videoconferencing in the courtroom. Michael, a defense attorney between thirty-five and forty-four years old, believes that

most people in the courtroom do not understand the impact that videoconferencing has on

private communication between attorneys and defendants in the same room. People often

equate videoconferencing like using Skype in a business meeting context without thinking of

a courtroom’s complex dynamic and the necessity of both private communication and open-

court comments.

People don’t understand how image technology distorts. Donna further supposes that the technology distorts the way people communicate.

Either these distortions must be compensated, or the diminished quality of communication

must be accepted. Private communication between defendant and attorney in the courtroom

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cannot be accepted without acknowledging that the representation of criminal defendants is

inferior to that of people who meet face-to-face.

Technical Problems Technical problems can frustrate judges, magistrates, attorneys, and clients. Delays between audio and visual are annoying. Cameras cause difficulties. People act differently in front of a camera. It’s easy to create a bad first impression, which is hard to overcome. Low quality videoconferenced hearings can have a detrimental effect. Gary adds that the technical problems in videoconferencing can interfere with

communication in the courtroom. Poor audio and video quality creates confusion.

Asynchronous audio and video feeds can be a distraction. Problems with the equipment

often increase frustration among all courtroom actors. The problems and frustrations of the

medium take away from the communication in the courtroom and can lead to frustration with

the process. This frustration in turn can lead to detrimental outcomes for the defendants who

use videoconferencing.

Attorneys clearly believe there can be negative effects of videoconferencing based on

the medium itself. When frustrated, people act differently and are less apt to try to make the

medium work. When communication problems become so prevalent, people feel

exasperated.

Videoconferencing will become more effective as technology improves. Francis maintains that while all the interviewed attorneys expressed some reservations

about the technical problems of videoconferencing, some attorneys believe that these issues

will lessen as videoconferencing improves.

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Perceptions of Justice Having greater access to videoconferencing will help clients and attorneys use the technology more effectively and minimize its negative effects. Abel believes that videoconferencing’s problems can be alleviated as the technology

is assessed. One issue that was raised was that videoconferencing may be becoming more

widespread, but assessment of the technology is lacking. Defense attorneys and defendants

may perceive that they are being used as “guinea pigs” during this process and that their

rights are being ignored, with possible negative outcomes.

Videoconferencing may make a defendant feel alone and disassociated from the proceedings. Harriet believes that videoconferencing adds another layer of separation between the

defendant and the proceedings. This feeling may disassociate or alienate the defendant from

their attorney and the court system. The attorney is the defendant’s one link to the

proceedings. If the defendant can only reach his attorney through a videoconferencing

monitor, where they cannot even be spoken to in private, the danger of isolating the

defendant grows.

This technology disregards human elements; it flattens and disregards the human feel. Donna holds that court proceedings have an atmosphere/tone. Part of this tone comes

from the serious adherence to the legal rules of the Constitution, the Rules of Evidence, and

the Rules of Criminal Procedure. There is also a weighty human feel. Appropriate dress is

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required, hats are removed, and people speak in hushed tones. The emphasis is on the

importance of the proceedings and their significance. Videoconferencing, some attorneys

fear, “short-circuits” and minimizes this effect.

A drawback of videoconferencing could be that it gives the appearance of justice without actual justice. People can fool themselves that the human element is unnecessary. An impulse to dehumanize could cause a client to lose their sense of justice. Erik worries that videoconferencing will dehumanize court proceedings until it

becomes more about processing paperwork than ensuring a defendant their rights. Many

attorneys believe already that the court system is already too much about processing people

than serving due process. Some see videoconferencing as a continuation of this negative

trend, pushed to the limit of the technology.

Videoconferencing might cause defendants to perceive that the courts are part of the corrections system. Erik also foresees that because defendants often remain incarcerated while their

image is beamed into the courtroom, where their attorney and all the other court players

proceed, the defendant may come to believe that the court itself is not separate from the

prison, but an extension of it. To incarcerated defendants, court proceedings will seem more

like administrative prison hearings, where the rules of evidence and criminal procedure do

not apply.

Videoconferencing disassociates the defendant from the proceedings. Jennifer believes videoconferencing presents the danger of disassociation. Many

defendants already feel alienated from the legal proceedings, and further separating them

from their defense attorney and the courtroom interactions only make it worse.

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Videoconferencing is cost effective, efficient, and offers a defendant faster justice. Erik does see benefits of videoconferencing that should be considered. He maintains

that videoconferencing offers a quicker entry into the courtroom and faster access to justice.

Even virtual access via videoconferencing creates an impression of importance in the mind

of the defendant. This would help alleviate any feelings that videoconferencing minimizes

the significance of the defendants’ rights.

Other Comments Concerning Videoconferencing Further study is required before videoconferencing is adopted or expanded in the court system. Abel voices a common concern on the dangers of videoconferencing as it is being

adopted and expanded across the country with little study on its effects on constitutional

rights, court procedures, and judicial outcomes. Many attorneys note that the small amount

of research that has been done indicates that videoconferencing’s negative aspects lead to

adverse outcomes for defendants.

Videoconferencing does not enhance courtroom communications. Linda believes that participants communicate in a traditional courtroom to ensure the

enforcement of all rules of evidence and criminal procedure and that the defendant is

afforded their rights. If videoconferencing does not enhance this communication or if it

possibly makes communication less effective, it should not be used and contradict a core

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reason for people to meet in a courtroom. A medium that interferes with the court’s main

mission should be eliminated.

Defense attorneys should always be with their clients. Michael relates a common belief among defense attorneys who have experience with

videoconferencing in the courtroom – an attorney should always be with their clients.

Videoconferencing physically separates the defense team, making it less effective. Defense

attorneys and clients physically standing together is necessary for the attorney-client

relationship to function properly.

Trials should never use videoconferencing; it would change the dynamic of the trial. Most attorneys, like Karl, believe that videoconferencing should be limited to pre-trial

hearings and left out of trials. Videoconferencing would alter the nature of a trial and create

issues that would be detrimental to the process.

All parties may act better via videoconferencing. However, Karl favors videoconferencing in other court matters. He opines that

people often act differently on video than they do in person. Critics believe that people on

video act in a way that renders communication less effective, while proponents believe that

people on video are more focused on communication and the proceedings.

With videoconferencing, there is too much disconnect between judges and defendants. Nina, a defense attorney between the ages of thirty-five and forty-five, believes that

videoconferencing creates a disconnect between the defendant and everyone on the other side

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of the technology. The judge, jury, and defense counsel particularly, are disconnected from

the defendant because of the nature of the medium and its inherent issues.

Videoconferencing may make it less likely for people to sympathize with the defendant. Jennifer maintains that one issue of videoconferencing is that during the judicial

process, which relies in part on the firm establishment of the attorney-client relationship,

people assess each other and determine trust and credibility. If decisions about people are

based on a limited number of criteria, then the impact of videoconferencing is limited and

may be irrelevant. But if decisions about people are based on criteria that are more than a

finite set of variables and are much wider and fluid, then anything that might limit those

variables, like videoconferencing, can negatively impact the defendant.

Videoconferencing has too many technical problems. One time people in the courtroom could not hear the defendant, so when he spoke up it seemed as if he were yelling, angry, and disrespectful. Critics fear that the negative issues of videoconferencing will cause the participants to

overcompensate and create new problems that inhibit communication. Gary extrapolates that

overcompensation will create even greater problems than the ones they are trying to solve.

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Information Integration Theory: Distractions Videoconferencing offers less information with which to make decisions. Kyle believes that videoconferencing offers less information in terms of visual cues,

body language, eye contact, etc. than face-to-face interactions. Without this personal

information, a person trying to assess and determine truth, sincerity, and/or the emotional

state of an individual is more difficult. These distractions make the establishment of trust

and decision-making more difficult.

Clients don’t know how to effectively communicate with videoconferencing in the same way that they would in traditional face-to-face interactions in the courtroom. To communicate effectively through videoconferencing is a learned skill that most

defendants do not possess. Kyle, an attorney and also a trained actor, states that the lack of

necessary skills can inhibit the communication and relationship necessary for an effective

defense. Actors spend years learning how to communicate effectively on video. It is clear

that learning these skills “on the fly” during judicial hearings can negatively impact the

attorney-client relationship as well as judicial outcomes.

Videoconferencing adds unnecessary difficulties to an already complex process. Harriet elaborates that establishing a trusting connection to communicate the complex

ideas of a criminal defense is difficult, and communicating via videoconferencing only

makes it harder. Many attorneys believe that videoconferencing should be suspended until

these unnecessary difficulties are minimized or eliminated.

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Videoconferencing offers less information for decision-making when people are distracted. The inherent distractions of videoconferencing offer less personal information to

make decisions. Harriet believes that without all available information, making decisions is

not only more difficult, but worse, those decisions will be inaccurate.

Videoconferencing is fine in the courts as long it is used correctly. Many interviewees express the recurring theme that they are not against

videoconferencing, only its adverse effects. Linda thinks that adopting rules of procedure

governing the use of videoconferencing is the path towards wide-spread acceptance of the

medium.

Videoconferencing needs to be reliable and regularized to be accepted. The formalization of rules of procedure is necessary for videoconferencing to be

accepted. Today, videoconferencing is used on an ad hoc basis with no official rules and

standards. Charles said formalizing the rules will help to minimize any distractions or

extraneous influences.

Videoconferencing does not enhance the courtroom. Charles believes that the courtroom is a dynamic place where complex rules govern

how information is communicated. Videoconferencing is a new dynamic that may interfere

with the transmission of information. If this is true, videoconferencing in its present form

does not improve the courtroom experience and may inhibit its mission.

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Face-to-face interactions in the courtroom appear more sympathetic. When the defendant is present in the courtroom, the judge usually asks him more direct questions. The judge sees human defendants when they are face-to-face. It’s easier to deny people via video. Some attorneys believe that more information is transmitted in face-to-face

encounters than via videoconferencing. Gary maintains that the exchange of information can

also be more in-depth. People are more engaged and the connection between people is

perceived to be stronger in person, which makes for better communication and relationships.

Videoconferencing technology will force attorneys to prepare in advance. Ivan believes that videoconferencing’s shortcomings will force attorneys to

compensate by preparing in advance. In cases where no private communication between

attorney and client in the courtroom is possible, attorneys would need to prepare all possible

issues and their outcomes in advance of any courtroom interaction. This is extremely

problematic because they cannot have any private communication during the proceedings to

clarify or correct inaccurate or misleading information concerning the case. The necessity

for such complete preparation further implies that videoconferencing is inherently inferior

than face-to-face encounters.

Videoconferencing changes the judge or magistrate’s job and makes more demands on them. Not being able to understand the technology’s subtlety is masked by its ease of use. Donna maintains that videoconferencing changes the nature of courtroom

relationships. Videoconferencing is not merely pointing the camera and watching the

monitor. Judges and magistrates who believe that there is nothing more to the technology

than “point and shoot” may not get all the information they need to make the best judgments.

Clerks have one more thing to do or fix.

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Donna notes that court clerks must perform additional duties to either use and

maintain videoconferencing equipment, or to supervise an informational technology (IT)

person in that role. In a system already overly burdened where clerks are asked to do even

more, videoconferencing may not be used in the most efficient and effective manner.

Videoconferencing cuts down on the baloney; it focuses attention on the facts and the law. Karl believes that the courtroom dynamic is enhanced by videoconferencing’s ability

to lessen or eliminate information. Some lawyers feel that less attention should be paid to

the defendant’s physical cues (i.e. body language, eye contact, facial expressions, etc.) and

more to the law and the facts of a case provided by the attorney and defendant.

Relevancy The prosecution and defense attorneys are the most important actors of most courtroom interactions. A defendant’s input is often minimal. Abel claims that defendants have little input in most judicial hearings so the

impairment of communication between attorney and client has little relevancy. Some

lawyers believe that the lack of private communication is not a major variable in determining

the effectiveness of a criminal defense or of judicial outcomes.

Personal interaction is just one small factor in the courtroom experience. They are a far more holistic experience. Both Abel and Barbara say there are a limited number of relevant factors in judicial

hearings in the courtroom experience. Personal interaction, especially between attorneys and

clients, is a small part. In many instances, private communication is not one of the relevant

factors that can be counted on one hand.

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A strong file is more important than court interaction. Barbara maintains that a strong file is the most important factor in most judicial

hearings. The variables listed in the file determine the judicial interactions and outcomes

more than anything else. Hence, personal interaction and communication add little to the

courtroom experience because the file provides the relevant information.

The attorneys are the central influence in the courtroom. Some supporters of videoconferencing state that attorneys are the most important

variable in judicial hearings. Abel maintains that attorneys shape the file’s contents, and it is

their job to present the facts and the laws most favorable to the side they are advocating.

Private communication between attorney and client offer little to the courtroom dynamic.

As long as the defense attorney is in the courtroom, there is little difference between videoconferencing and face-to-face communication. Abel further adds that the issue regarding the lack of private communication in many

courtrooms is of small importance to supporters of videoconferencing. For them, the pluses

outweigh the minuses. The efficiency and effectiveness gained by moving defendants

through the judicial process using videoconferencing outweighs the possible detrimental

effects resulting from the loss of private communication between attorney and client.

For videoconferencing to be successful, attorneys require meeting and preparing clients in advance.

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Ivan maintains that because private communication is impossible in many courtrooms

that use videoconferencing, the solution may be to have defense counsel and client meet in

advance to prepare for all possible situations. Private communication would then not be as

necessary in the courtroom. A major criticism of videoconferencing would be eliminated if

all possible issues and their permutations had been covered ahead of time. Everything

cannot be discussed and strategized ahead of time. This attorney stated that ‘no plan survives

contact with the enemy.’

Training Court personnel (judges, clerks, attorneys, etc.) need special training to help minimize the negative effects of videoconferencing for the medium to be successful. Both supporters and critics of videoconferencing brought up the issue of training.

Even supporters recognize that videoconferencing can be better and that problems (both real

and perceived) can be minimized. Training must include all court personnel, says Linda,

because each member has particular needs. Clerks need training to operate the

videoconferencing equipment; judges need to be aware of how defendants are perceived via

video. Defense attorneys, especially, must establish the trust needed to build a proper

attorney-client relationship, and must contend with the lack of private communication in a

significant percentage of courtrooms.

Judges need special training to understand how videoconferencing can effect communication. Linda elaborates that judges need to understand that a defendant’s body language, eye

contact, and/or speech may be markedly different via video than it is in person. On video,

body language and eye contact is often awkward; speech may be louder or strained due to

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volume, quality, or poor connections. Formal training could help dissipate the perception

that “strange” behavior on video must be based on dishonesty or hostility.

It is critical that clerks achieve the technical expertise to operate videoconferencing equipment. Clerks need special training to use videoconferencing in their courts. Courtroom clerks, who are often the ones in charge of videoconferencing equipment,

must be aware that the placement and quality of cameras, speakers, and lighting all affect

how defendants are perceived, sometimes detrimentally. Both Linda and Michael believe

that training clerks to be aware of these issues could help minimize negative impact.

Special training is needed to prevent and solve technical issues. Negative technical issues frequently plague videoconferencing equipment. Charles

opines that problems with audio and video connections and other issues cause members of

the court a lot of frustration, particularly the defendant and the judge. This outward show of

frustration can then be perceived as a breakdown of communication that creates hostility or

worse, dishonesty.

Clerks and attorneys require special training. Nina believes that training clerks and attorneys is especially important to minimize

the negative effects of videoconferencing. Coordinating efforts between clerks and defense

attorneys can help. Defense attorneys can suggest how videoconferencing can be used in

each hearing, and clerks can reasonably accommodate those needs with their own technical

input and experience.

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Videoconferencing training should be part of advocacy classes in law school. As videoconferencing grows and expands in courtrooms across the nation, some

attorneys interviewed state that law schools should teach students about the proper use of

videoconferencing in the courtroom and the concerning issues. Gary believes that making

new attorneys aware of these issues will help alleviate consequences in the future.

Older attorneys especially need to be educated and trained about videoconferencing issues. Some attorneys interviewed specifically mentioned older attorneys as needing

videoconferencing education and training. Charles maintains that older attorneys may be

less familiar with the use of videoconferencing and technology generally than younger

attorneys who often use technology in more areas of life.

All court participants need videoconferencing training. Interviewed attorneys state the need for special training on the use and issues of

videoconferencing for all parties in the courtroom. Donna maintains that all courtroom

personnel must understand each other’s unique issues and concerns, and these concerns need

to be addressed holistically.

Clerks should not be burdened by videoconferencing training; an Information Technician with AV training is needed. Some attorneys maintain that because videoconferencing is important and complex, it

warrants a specialized IT to run and maintain the videoconferencing equipment. Both

Francis and Karl state that an IT specialist should be trained on all equipment and be aware

of the endemic needs and concerns to minimize negative impact. An IT position would

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minimize and troubleshoot any technical issues, lowering the frustration of all courtroom

personnel.

Attorneys also need training on coaching clients. Having attorneys coach defendants on how videoconferencing works and how best to

use the technology would be benefit all involved. Erik states that attorneys, for example,

could cue defendants about looking into the camera and not the monitor when speaking .

Defendants could be coached not to yell or get angry when audio problems arise. Attorneys

could warn clients of any technical glitches that might occur and to remain patient, so as not

to let their frustration taint the proceedings. Lastly, attorneys must make their clients aware

that private communication may not be possible between them in the courtroom and, if

possible, explore other accommodations.

Standardize Rules Videoconferencing standards and rules need to be defined and adopted across jurisdictions. Linda and Karl state that standardized rules are needed for the use of

videoconferencing in the courts. Debating these rules would likely minimize or eliminate

many or all of the issues associated with the medium. Specific, comprehensive standards

could be covered under the rules of criminal/civil procedure and/or the rules of evidence.

Attorneys need a clear road map of standardized rules to guide how and when to use the

technology, and provide a common “language” for challenging or defending its use.

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Psychologists should be consulted in setting videoconferencing standards and rules. The technology should be on par with face-to-face interaction as much as possible. Linda states that professionals in the fields of human interaction should help

formalize rules concerning videoconferencing in the courts. Psychologists can alert attorneys

of videoconferencing’s limitations and minimize their effects. Because the effects of

videoconferencing can be negative and subtle, the input of experts in the field would be

immensely valuable.

Rules need to be established. Negative variables need to be minimized. Human nature needs to be considered. Any standardized rules concerning videoconferencing in the courts need to consider

human nature. People often perceive the lack of eye contact, stilted body language, and/or

nervousness as evidence of deception or blatant lying. Because of the nature of

videoconferencing, these behaviors are accentuated. Gary states that experts could explain

that the medium, and not the defendant, can create these perceptions.

Standardized rules, training, and issues are necessary. As the rules of videoconferencing become standardized, training should also be

standardized to ensure that videoconferencing is used properly and effectively. Ivan believes

that standardized rules and training for the technology’s use in the courtroom will eliminate

much of the controversy surrounding the medium.

A designated IT person is needed in each courtroom. Clerks should have the same videoconferencing rules, as like in the FRCP (Federal Rules of Civil or Criminal Procedure). Donna states that technology (not just the use of videoconferencing) in the courtroom

has reached the level that requires a designated IT to implement and maintain. The IT

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should be trained in the technical aspects of the technology and further should have a

background in the legal issues surrounding its use.

Standardizing videoconferencing rules is not possible; courtrooms are too different. Francis maintains that standardizing rules for videoconferencing is impossible; there

are too many courtrooms, and what works well in one would not work in another.

Courtrooms are different sizes, configurations, and constructions, and videoconferencing

may be radically different in set up from place to place. In addition, diverse jurisdictions

have varying budgets for implementing the technology and training of personnel.

Civil/Criminal Actions Videoconferencing should be used for civil matters, not criminal cases. Francis believes that videoconferencing should be limited to civil cases but that

criminal cases should use it sparingly if at all. Criminal cases, he says, normally have higher

standards than civil trials. Higher standards of proof, rules of evidence, and rules of

procedure are instituted in criminal cases because they carry higher penalties than civil cases.

Criminal cases involve a loss of liberty (jail time) or life, whereas civil cases mainly involve

compensation for harm done by one party to another.

Videoconferencing should be used more in civil cases because defendants and witnesses do not need to be physically confronted. Karl considers a participant’s physical presence in the courtroom more important for

criminal cases than civil cases. Because the penalties are so much higher in criminal cases

than civil ones, due process rules governing the courtroom are more stringent. This logic

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applies to videoconferencing, where the negative aspects of the technology have detrimental

outcomes for defendants.

Training is needed for videoconferencing to be effective. The technology should be limited to procedural hearings, should not be used for plea bargains, and in all cases only with the defendant’s consent. Donna believes videoconferencing should be limited to mere procedural hearings and

housekeeping matters. Some interviewees went further, stating that videoconferencing

should be contingent upon the defendant’s consent. One attorney states that

videoconferencing should not be used for plea bargains. Because plea bargains account for

virtually all of the disposition of criminal cases (90-95%), it is the judicial method of settling

cases in the criminal justice system and should be covered under videoconferencing rules.

Administrative Hearings Videoconferencing should only be used for purely procedural matters. For anything else, the client should be brought in to the courtroom. Some attorneys interviewed maintain that videoconferencing should only be used in

the courtroom for procedural matters because a defendant’s input is minimal in these types of

hearings. For more substantive matters, Erik and Gary state that videoconferencing should

be optional or eliminated where a defendant’s participation is more important to the process.

Little or no communication is necessary between attorney and client at most administrative hearings. Paperwork is the most important element. Administrative hearings are based on procedures that require little input from the

defendant. Barbara believes that an attorney’s court filings and communication are central to

their proper functioning. Videoconferencing would likely be deemed proper in these

contexts.

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Videoconferencing is more appropriate for pre-trial hearings. Pre-trial hearings that are more procedural and less substantive are a more proper

venue for videoconferencing. Jennifer holds that private communication between attorney

and client is less necessary at many pre-trial hearings, which minimize any detrimental

effects of videoconferencing on such communication.

The file is most important at pretrial hearings; videoconferencing or face-to-face interaction makes little difference. Videoconferencing supporters state that the court papers and the case file propel

many administrative hearings, and the defendant’s presence has little relevance. Abel

maintains that a small number of factors influence the direction of pretrial hearings,

including the recommendations of the prosecutor and defense attorney, and any relevant

information contained in the court files.

The information in the files is paramount. Videoconferencing could aid an unsympathetic client who looks good on paper but not in person. Barbara further states that videoconferencing might help an unsympathetic defendant.

The same logic that critics apply to the negative aspects of videoconferencing would favor a

“hard” or “indifferent” defendant. A defendant who exhibits tattoos (especially gang-related

tattoos), scowls, and/or manifestations of unresponsiveness could be considered

unsympathetic. As an immigration attorney, Barbara tries to be conscious of cultural

differences and perceptions. If she must use videoconferencing for a hearing with a client

who might appear unsympathetic to an “American” eye, she focuses more on the file rather

than the video image of her client. “Sometimes videoconferencing can be used to ‘hide’ a

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client,” she says. If she is forced to use videoconferencing in certain circumstances, Barbara

looks for any advantage.

Videoconferencing is fine for many pretrial hearings, which are administrative. Trials are a different story, where attorney-client communication is necessary. Proponents and critics of videoconferencing agree that even when videoconferencing

is used at pre-trial hearings it should not be used at trials. Trials are too dynamic, Abel

states, and require close, private communication between attorney and client through the

entire process. Communication must allow the free flow of confidential information and

ensure a defendant the proper representation in the courtroom.

Summary Statements

Based on the interviews, female attorneys leaned slightly more towards the Emergent

Meaning Theory and males towards the Information Integration Theory. One notable

exception was Linda, a defense attorney, who gravitated heavily towards the Information

Integration Theory. Videoconferencing was deemed to hinder the creation of trust necessary

for effective communication, rendering the attorney-client relationship less effective. This

perceived lack or loss of trust was exacerbated by the lack of private communication that

many courts reported through the NCSC data. Further, videoconferencing made

communication less effective because verbal and visual cues were more easily missed or

misinterpreted. Missed or misinterpreted cues could be the result of the nature of the

videoconferencing medium or through technical problems. In either case, communication

was less effective because of the medium of videoconferencing.

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White and non-white attorneys seemed to share the same views concerning

videoconferencing.

Some older attorneys gravitated towards the Emergent Meaning Theory. Many of the

older attorneys did not immediately attend law school after attaining their undergraduate

degree. They had other goals or careers earlier in their lives before practicing law. It

appears that these older attorneys, while less experienced in the profession, brought more

life experience to the law and the use of videoconferencing in the courtroom. Contrast this

with more experienced attorneys who were more inclined towards the Information

Integration Theory. These attorneys often view videoconferencing as another tool, the

effectiveness of which depends on the skill of the user. Videoconferencing training and

experience will overcome its shortcomings, and rules governing its use will minimize or

eliminate its more ominous deficiencies. This line or reasoning seemed to go along with a

greater acceptance of rules, such as the Rules of Evidence or the Rules of Criminal

Procedure, and that rules must be obeyed rather than questioned.

It was clear to a majority of attorneys that videoconferencing is not going to be

eliminated and that its use is likely to expand. Given this expectation, three common issues

raised by interviewed attorneys were: 1) the need for a hearing to request a face-to-face

hearing if circumstances warrant such, 2) the need for training of court administrators and

attorneys in the use of videoconferencing, and 3) the necessity for private courtroom

communication between attorney and client during videoconferencing.

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Figure 7.

Attorneys that believed videoconferencing created trust issues: 70%

Attorneys that saw the need for training of court administrators and attorneys: 80%

The necessity for a mechanism for private communications in the courtroom: 90%

Trust in the Attorney-Client Relationship

All attorneys interviewed made clear that a trusting relationship is necessary for

effective representation. Regular contact, especially personal contact when both attorney and

defendant stand together in court, was deemed very important in establishing trust. Building

trust is created by personal contact between attorney and client, but also by establishing a

defendant’s faith in the legal system overall. Often a defendant’s skepticism of the legal

system could be overcome by a good relationship with the attorney. Even if a defendant

does not trust the legal system to deliver justice, trust can still be built with an attorney

through personal contact.

Less Communication

Many attorneys state that videoconferencing is marked by less communication and

not more. Videoconferencing does not permit attorneys to sit with the defendant before

pretrial hearings, exchange a few words in court before formal proceedings begin, or offer

private words immediately after the hearing. Such communication was not possible or, even

if possible, were not private given the public nature of videoconferencing. Many attorneys

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interviewed see the irony that videoconferencing’s rationale is to increase communication

but actually diminishes it because it hinders privacy between attorney and client.

Private Communication in the Attorney-Client Relationship

Most attorneys voiced the necessity of private communication to the attorney-client

relationship, at all times, specifically in the courtroom. Private communication is the

cornerstone of the relationship; as such, communication is covered under the privilege of

communication between attorney and client. Trial strategy, often an evolving and complex

set of issues based on pretrial hearings and evidence, becomes less effective if private

communication is not achieved. This basic issue is a huge problem with the use of

videoconferencing.

Technical Problems

Most attorneys have experienced technical problems with videoconferencing.

Defense attorneys believe that these problems occur to the detriment of their clients.

Attorneys believe that defendants become frustrated and demoralized by technical problems,

which makes their jobs of representations much harder. Further, technical problems

inhibited the communication between attorney and defendant, hampering the attorney’s

ability to counsel and/or comfort clients while the technical problems were being resolved.

Perceptions of Justice

Some interviewees feel very strongly about the defendant’s perception that they were

not getting justice. Defendants believe that videoconferencing is an unjust part of an unjust

system, and that the benefits go to the court (in terms of efficiency) rather than in the

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protection of their rights. Videoconferencing is an attempt to fix a broken system, but the

cure only added to the problem.

The defendant’s perception of injustice added to the attorney’s inability to build trust

with their clients. The perception is that the legal system is two-tiered; a traditional (face-to-

face) set of rules for one strata of society, and a poorer, more streamlined process for the

other strata.

Other Comments

Other comments focus on the negative aspects of videoconferencing. These

comments express a theme that videoconferencing was a more complex process than “just

point the camera and shoot the action.” There is a vague but persistent belief that people act

differently when being videotaped, and the audience perceives them differently on video as

opposed to their personal presence. This leads interviewees to infer that to one degree or

another, “the medium was the message” and the cues that decision-makers made between

media are different.

Distractions

Some interviewees believed that videoconferencing distracts from the more relevant

facts of the case. In many pretrial hearings, the file offers more necessary information

necessary to render a decision than does testimony or information offered by the attorney

through the defendant. In these instances, the novelty of videoconferencing did more harm

than good. Attorneys who made this observation limited their view to more basic pretrial

hearings such as arraignments or bail review hearings. These attorneys were not as hostile to

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videoconferencing in these instances as others. They differentiated the use of

videoconferencing depending on the type and importance of the hearing.

Relevancy

A minority of attorneys interviewed did not see the relevance of videoconferencing in

a select group of pretrial hearings. They saw little or no need for the defendant’s presence,

either in person or via video. These attorneys tended to be older or more experienced and

had resigned themselves to the system. One attorney described himself as jaded, and viewed

the legal system as a means of processing people rather than a process that safeguarded

constitutional rights. Other interviewees took the opposite view. They believe that

videoconferencing, while here to stay, needs to be limited and regulated to ensure that it is

used as an effective and efficient tool.

Training

Attorneys expressed the universal view that training is required for clerks (or IT

people) who administer videoconferencing. The prevalent view is that the administrators

must be trained to properly operate the technology as well as troubleshoot technical

problems.

Some attorneys also strongly suggest that judges and attorneys should be trained in

the proper use of videoconferencing to ensure that the technology does not favor one side or

the other. Some attorneys believe that training should begin in law school, to inform law

students of the pros and cons of the technology and how to use it in accurately presenting

evidence and testimony. Attorneys who are informed of the use of videoconferencing could

coach their clients on the best way to present themselves via the medium.

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Standardized Rules

Another universal view is that videoconferencing needs standardized rules.

Standardized rules would present a more regularized procedure and remove the ad hoc

administration of the medium. Most interviewees state that these standardized rules could

fall under the Rules of Evidence and give all parties involved in the process a greater sense

of control. It would create a process and grounds for objecting unfairness in the use of

videoconferencing and help quell the critics.

Civil/Criminal Actions

Many attorneys opine that videoconferencing is better suited for civil rather than

criminal actions. They cite the legal standard in decision-making (in a criminal case –

beyond a reasonable doubt and in a civil case by a preponderance of the evidence) as the

main reason for the difference. Criminal actions have a higher burden of proof, more

stringent rules of procedure, and greater stakes in the outcomes/punishments. With so much

more on the line, the attorneys interviewed distinguished between the two types of actions.

Administrative Hearings

Most attorneys state that videoconferencing is admissible for administrative hearings.

Most administrative hearings are appealable to formal courts of law and the interviewees

believe that any irregularities concerning videoconferencing could be cured through appeal.

Immigration attorneys were the one group who had issues with videoconferencing at

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administrative hearings. They believe that videoconferencing could result in a negative

outcome for their clients, resulting in deportation. The negative aspects of

videoconferencing for their clients could not be cured later and as such, they are against its

use.

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CHAPTER SIX – DISCUSSION AND POLICY RECOMMENDATIONS

Someone looking for possible solutions for videoconferencing’s drawbacks could

take a page from drug courts. Entry into a drug court necessitates a waiver of rights. An

informed consent procedure could help videoconferencing in terms of protecting procedural

rights as well as perceptions of justice. Informing the defendant of the pros and cons of

videoconferencing would also serve a reminder for all participants (administrators, judges,

and attorneys) that videoconferencing is fundamentally different from traditional face-to-face

contact and has different procedures. Videoconferencing, one attorney states, creates a

disconnect between the defendant and everyone with whom they communicate. The

defendant is especially disconnected from the judge, jury, and defense counsel because of the

medium’s nature and its inherent issues.

Moreover, videoconferencing may be best suited for specialized circumstances. Just

as drug courts are used only for specific drug cases, videoconferencing could be limited to

civil cases, routine procedural pre-trial hearings, or administrative cases (such as issues

before the Food and Drug Administration, or the Federal Communication Commission).

What is imperative is that fundamental fairness and procedure is maintained. The legal

system is already burdened with issues of bias and to further unbalance the system is

unwarranted.

Some attorneys interviewed believe that videoconferencing should not be used under

any circumstances. They feel it is fundamentally flawed as a process in terms of courtroom

use.

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Videoconferencing does have a place in the legal system. The challenge is not to

exclude it but to use it responsibly. Proponents state that drug courts have helped thousands

of defendants with their drug issues and have benefited society in inestimable ways.

Videoconferencing can have the such results, but certain highlighted issues must be

addressed as this paper will address supra.

It is clear that videoconferencing has its issues in court, especially as it relates to

attorney-client privileged communication. It is also clear that many of these issues can be

alleviated or remedied. Part of the solution lies in installing and upgrading technology,

training court personnel, and educating all users concerning the strategies for building trust

and understanding. These steps are necessary to enable the fairest and most effective use of

videoconferencing when the defendant is at a remote location and their attorney is in the

courtroom.

There should be reasonable rules concerning the availability of private

communication between attorney and client in the courtroom. A separate camera with a

hidden monitor screen that only the attorney and client can see must be available. This

would ensure that courtroom interactions take place in the courtroom in real time; attorney

and client can communicate privately to help ensure effective representation. Less optimal

would be a private phone line between the attorney in the courtroom and the client at a

remote location. This would help safeguard private communication but would eliminate the

visual picture between attorney and client. Visual aspects are important to building an

effective and trusting attorney-client relationship. Judges could clear the courtroom of all

personnel (including himself/herself and the defense attorney) for the attorney to privately

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converse with the remote defendant via videoconferencing and, when finished, call everyone

back into the courtroom. For this to be done every time private communication is needed

between defense attorney and defendant could be cumbersome, burdensome, and slow.

Critics maintain that this would have a chilling effect on its use. Lastly, some attorneys

suggest that attorney and defendant meet ahead of time to discuss every anticipated question,

concept, or piece of evidence. This would reduce the need for any private communication

between attorney and defendant during a courtroom hearing.

Further, standardized rules should govern videoconferencing through the Rules of

Evidence and Rules of Criminal and Civil Procedure. Standardized rules will likely enshrine

procedures that will minimize the technology’s detrimental effects, especially if the rules are

formulated with input from psychology and the media experts. Standardized rules will afford

the defense the ability to anticipate what will come and formulate strategies to overcome any

communication difficulties. It will give the defense the ability to object to any irregularities

in the proceedings that deviate from the established rules.

Limiting videoconferencing to pre-trial matters, especially administrative matters,

will minimize its negative aspects while preserving useful aspects, notably its efficiency.

Administrative matters are almost exclusively procedural with little input from the defendant.

The case file provides most of the information needed for an administrative hearing, with the

attorneys adding any needed facts.

Some attorneys would go further and limit the use of videoconferencing to civil rather

than criminal matters. Criminal matters are fundamentally different from civil matters in the

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penalties that may be imposed. In civil matters, generally a person’s money or assets are

impacted, while in criminal matters a person’s liberty or life is at issue. Because of the

severity of criminal penalties, criminal actions have a higher standard of proof, more

stringent rules or evidence and procedure, and other protections that benefit the defendant.

Because of these higher standards and rules, many attorneys believe that videoconferencing

should not be used in criminal proceedings without the express consent of the defendant.

Another recommendation to alleviating the negative effects of videoconferencing is to

educate attorneys, judges, clerks, and law students on the effects of the medium. Attorneys

need to be aware of its negative aspects and the strategies that minimize such effects. Judges

must be made aware of the differences in the dynamic of communication between

videoconferencing and traditional face-to-face interactions. Clerks, who likely administer or

oversee videoconferencing procedures and equipment, need to be educated in its use in the

most fair and effective way. Moreover, as it is likely videoconferencing will continue to be

part of the legal process, law students need to be taught how to use videoconferencing

effectively in advocacy and procedure classes.

Formal training for law clerks and IT personnel is necessary to ensure its proper use.

This training should be conducted by professionals with a background in videoconferencing

and its effects on communication. Making clerks aware of the technology’s shortcomings

will help administrators safeguard attorney-client communication.

Having reliable videoconferencing equipment is another recommendation.

Communication via video is difficult and requires different strategies to be effective. If the

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underlying equipment is inadequate, antiquated, or improperly handled, it only exacerbates

such difficulties. Reliable, updated technology will lessen or eliminate technical difficulties

such as asymmetrical video and audio, time lags in audio communications, poor audio or

visuals, and intermittent or “dropped” connections.

Allowing users to set an agenda in advance would also alleviate another common

problem – the lack of time for attorneys and clients to build trust. A trusting working

attorney-client relationship requires more time to develop via video than it does face-to-

face.398 Allowing more private videoconferencing time between attorney and client would

improve communication and lessen the technology’s negative impact. Further, allowing

attorneys and clients more time to become accustomed and comfortable with

videoconferencing before being forced to use it in the courtroom would help lessen the belief

among many users that they do not have much opportunity to speak or fully participate in the

proceedings.

398 Id.

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Figure 8.

Suggestions for Improving the Use of Videoconferencing in the Courts

1. Installing/Upgrading Videoconferencing Equipment. 2. Training of Administrators and Attorneys. 3. Education in the Understanding of Videoconferencing and its Use in Trust Building. 4. Prioritizing Procedures for Private Communications Between Attorneys and Defendants. 5. Standardizing Rules of Procedure for the Use of Videoconferencing. 6. Possibly Limiting the Use of Videoconferencing to Administrative and/or Civil Actions.

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CHAPTER SEVEN – CONCLUSION

Many critics cite the main objection of videoconferencing is that it is currently used

with little knowledge of its impact on fundamental fairness. There have been a minimal

number of empirical studies on videoconferencing’s effect on the due process rights of

defendants in the legal system. Opponents of videoconferencing view it as adding yet

another unfair process that processes people through the court system, rather than protect

their rights. They see the overuse of plea-bargaining, the abuses of specialized courts, and

now the use of videoconferencing as another example of fundamental unfairness. Opponents

err on the side of caution with new processes, where the unknown impact must be adequately

studied before it is used. Without such study, critics believe videoconferencing must be

assumed as a negative until it is proven a positive.

It is unknown whether the medium would disparately impact the poor and minority

classes. It seems that it could. Most videoconferencing is being used in criminal cases,

where the vast majority of defendants are poor or minorities. This population is the most

vulnerable and the least able to protect itself.

With “only” poor and minority populations at risk, it seems that the courts are

experimenting with these defendants to gage the effectiveness of videoconferencing. Where

it is implied that an outcome would be assessed and appropriate changes made, and

regardless of whether videoconferencing harms the rights of defendants, courts continue to

use it because it is useful in moving vast numbers of people through the legal system.

Critics view this as a “perfect storm” for unstudied experimentation: a vulnerable

population, an overburdened legal system, and a tight fiscal environment all culminate in a

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circumstance where people are more willing to overlook a possible diminution in a

defendants’ rights where the other articulated problems are alleviated. It is viewed a step too

far. Until videoconferencing is properly studied, and those studies analyzed and replicated to

the satisfaction of the social science and legal communities, its use should be limited.

Limiting videoconferencing’s use was another reoccurring theme in this study. One

way to limit its use is to remove it from criminal actions and confine it to civil actions. The

higher burden of proof in a criminal case beyond a reasonable doubt requires much more

than in a civil case by a preponderance of the evidence as well as more stringent rules of

procedure. Nevertheless, the main reason for limiting videoconferencing to civil actions is

the greater stake in the outcomes/punishments in criminal actions versus civil ones. This

goes back to basic fairness and due process. The greater the risk of error, the more formal

process is due a defendant. Because criminal matter a carry greater penalties (jail time or

even death), versus civil actions were generally only money or property can be lost, more

formal process is due. More formal process to many means traditional face-to-face

interactions.

Even critics understand that the use of videoconferencing in the courts will continue

into the future. It is a cost-efficient way to facilitate the courtroom process. Critics claim

that while its efficiency is clear, its effectiveness is in question, specifically the impact on

attorney-client communication. The goal of this research was to better understand this

impact. An important assumption is that attorney-client communication in the courtroom

may be assisted by the physical presence of the attorney and the client in the same location

(the courtroom), and that videoconferencing’s separation of physical presence has a

detrimental impact on the relationship. From this perspective, the framework of Information

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Integration Theory, the Emergent Meaning Theory, and the open-ended interviews conducted

with Massachusetts attorneys offer insight on the use of videoconferencing in the

Commonwealth.

In many courtrooms there is clearly little or no private communication between

defendant and counsel, which affects their relationship and representation. The results from

this first, large-scale empirical study clearly show there is a problem. Videoconferencing

creates a Hobson’s choice for defense attorneys: either they can appear at the remote site to

freely confer with their client but have reduced access to the court; or they can appear in

court, where they will have greater access to the judge, clerk, and file but less access to their

client.399 The separation of attorney and client will continue to create problems of marginal

or inadequate representation.400 Jurisdictions across the country use videoconferencing, and

while most agree on the benefits of the technology, critics maintain that there is a negative

effect on attorney-client communication where substandard or no provisions are made for

private communication between the two. These conclusions are consistent with the legal

literature/analysis, the quantitative and qualitative data. Understanding these issues will aid

policy-makers in improving how videoconferencing is used and minimize its negative

effects.

Decisions made concerning videoconferencing will have wider implications as other

technologies are introduced into the courts. Videoconferencing is a gateway to other

technologies gaining a foothold. Technology offers greater speed and efficiency in

processing defendants through the courts and save costs. Saving money is a popular idea in

399 Id. at 56. 400 Poulin, supra note 12, at 1129.

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times of shrinking court budgets, but the impact of new technologies in the courtroom on

constitutional rights and civil liberties need to be accessed. While the court gains from cost

savings and administrative productivity, the new technology may alienate and dehumanize

defendants. Paraphrasing Justice Brennan in Bruton v. U.S.: if we secure greater speed,

economy, and convenience in the administration of the law at the price of fundamental

principles of constitutional liberty, the price is too high.401 Videoconferencing in the

courtroom can be remedied to protect attorney-client communication by instituting proper

procedures to ensure free flow of these private communications, safeguarding the ability of

counsel to provide adequate assistance.

401 391 U.S. 123, 135 (1968).

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Appendix A:

Recruiting E-mail Template

Dear (Name of Potential Interviewee):

My name is Eric Bellone, a doctoral candidate in Law and Public Policy at Northeastern University. I was given your name by (prior interviewee in the snowball sample) as someone who would likely speak to me. I am conducting a study of the impact of videoconferencing on attorney-client communication. The goal of this study is to understand how this technology impacts attorney-client relationships, interactions, and communications in the courtroom. I would like to interview you about your thoughts, impressions, and experiences with videoconferencing. The interview will likely last 30 minutes. I am willing to meet with you at a time and place of your convenience. Please let me know if you are interested in meeting with me by contacting me at the e-mail or phone number below. I look forward to hearing from you soon. Eric Bellone, Esq. Doctoral Candidate Northeastern University ebellone@suffolk.edu (978) 799-0997

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Phone Script Hello, my name is Eric Bellone, a doctoral candidate in Law and Public Policy at Northeastern University. I was given your name by (prior interviewee in the snowball sample) as someone who would likely speak to me. I am conducting a study of the impact of videoconferencing on attorney-client communication. The goal of the study is to understand how this technology impacts attorney-client relationships, interactions, and communications in the courtroom. I would like to interview you about your thoughts, impressions, and experiences with videoconferencing. The interview will likely last 30 minutes. I am willing to meet with you at a time and place of your convenience. [answer any questions] [set up date, time, and place for interview] Thank you for your help. I look forward to meeting with you.

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Appendix B:

For NU IRB use:

Date Received: NU IRB No.

Review Category: Approval Date

A P P L I C A T I O N F O R A P P R O V A L F O R U S E O F H U M A N

P A R T I C I P A N T S I N R E S E A R C H

Before completing this application, please read the Application Instructions and Policies and Procedures for Human Research Protections to understand the responsibilities for which you are accountable as an investigator in conducting research with human participants. The document, Application Instructions, provides additional assistance in preparing this submission. Incomplete applications will be returned to the investigator. You may complete this application online and save it as a Word document.

If this research is related to a grant, contract proposal or dissertation, a copy of the full grant/contract proposal/dissertation must accompany this application. Please carefully edit and proof read before submitting the application. Applications that are not filled out completely and/or have any missing or incorrect information will be returned to the Principal Investigator.

REQUIRED TRAINING FOR RESEARCH INVOLVING HUMAN SUBJECTS

Under the direction of the Office of the Vice Provost for Research, Northeastern University is now requiring completion of the NIH Office of Extramural Research training for all human subject research, regardless of whether or not investigators have received funding to support their project. The online course titled “Protecting Human Research Participants” can be accessed at the following url: http://phrp.nihtraining.com/users/login.php. This requirement will be effective as of November 15, 2008 for all new protocols. Principal Investigators, student researchers and key personnel (participants who contribute substantively to the scientific development or execution of a project) must include a copy of their certificate of completion for this web-based tutorial with the protocol submission.

□ Certificate(s) Attached X Certificate(s) submitted previously – on file with the NU’s Office of Human Subject Research Protection

A. Investigator Information

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Principal Investigator (PI cannot be a student) Professor Thomas Koenig

Investigator is: NU Faculty _X_ NU Staff___ Other ______

College Arts and Sciences

Department Department of Sociology and Anthropology

Address

Telephone Email t.koeng@neu.edu

Is this student research? YES_X_ NO___ If yes, please provide the following information:

Student Name Eric Bellone ___ Undergrad ___ MA/MS ___ PhD _X_

Mailing Address 1 Cobbler Road, Westford, MA 01886 Anticipated graduation date 9/2012

Telephone 781-799-0997 Primary Email ebellone@suffolk.edu

Cell phone Secondary Email

B. Protocol Information

Title Videoconferencing in the Courts: An Exploratory Study of Videoconferencing Impact on the Attorney-Client Relationship in Massachusetts

Projected # subjects N = 177pprox.. 50_

178

Approx. begin date of project 7, 1, 2012 Approx. end date 9, 30, 2012 month, day, year month, day, year

It is the policy of Northeastern University that no activity involving human subjects be undertaken until those activities have been reviewed and approved by the University’s

Institutional Review Board (IRB).

• Anticipated funding source for project (or none) none _____

Has/will this proposal been/be submitted through:

§ NU’s Office of Research Administration and Finance (RAF) ___n/a____ § Provost __n/a____ § Corp & Foundations __n/a____

C. Will Participants Be: Yes No Does the Project Involve: Yes No

Children (<18) x Blood Removal? X

Northeastern University Students? X Investigational

drug/device? X

Institutionalized persons? X Audiotapes/videotapes? X

Prisoners? X

Cognitively Impaired Persons? X

Non or Limited English Speaking Persons?

X

People Living outside the USA? X

Pregnant Women/Fetuses? X

Other? (Please provide detail) x

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Please answer each of the following questions using non-technical language. Missing or incomplete answers will delay your review while we request the information.

D. What are the goals of this research? Please state your research question(s) and related hypotheses. The goal of this research is to examine the impact of in court videoconferencing on the attorney-client relationship. This research will study the effect of selected independent variables on related outputs of attorney-client communications. The independent variables generate their own hypothesis and research questions, which we have arranged in the semi-structured interviewing protocol (see attached). E. Provide a brief summary of the purpose of the research in non-technical language.

Courts are experimenting with new technologies in response to increasingly crowded dockets. Specifically, the use of videoconferencing is spreading through the federal and state court systems to streamline legal proceedings and provide the accused greater access to justice. This is an exploratory study, the goal of which is to gain a better understanding of the structure and context of videoconferencing in the Massachusetts courts. There are two components to this project: an analysis of an existing data set and semi-structured interviews. The existing data yields an overview of information on videoconferencing. It presents descriptives and frequencies on videoconferencing from state courts across the country from the National Center for State Courts in 2010. This existing data set shows some of the characteristics and relevance of videoconferencing. The interviews will pose questions to explore attitudes, behaviors, and experiences of individuals who have or will be impacted by videoconferencing in the courts. These interviews will focus on the interviewee’s impressions of the effects that videoconferencing has on attorney-client communications. It will conclude with a discussion of how the negative aspects of videoconferencing can be lessened, avoided, and/or remedied.

F. Identify study personnel on this project. Include name, credentials, role, and organization affiliation.

The student researcher is Eric Bellone, a Ph.D. candidate in Law and Public Policy. The Principal Investigator is Thomas Koenig, Ph.D. – Professor of Sociology and Law and Public Policy. Mr. Bellone will conduct all interviews.

180

G. Identify other organizations or institutions that are involved. Attach current Institutional Review Board (IRB) approvals or letters of permission as necessary.

Some interviews may be conducted at Suffolk University. If so, permission from Suffolk University will be forwarded to Nan Regina.

H. Recruitment Procedures Describe the participants you intend to recruit. Provide all inclusion and exclusion criteria. Include age range, number of subjects, gender, ethnicity/race, socio-economic level, literacy level and health (as applicable) and reasons for exempting any groups. Describe how/when/by whom inclusion/exclusion criteria will be determined.

The data collection process will target attorneys who have an interest in the use of videoconferencing in the courts as it relates to attorney-client communications. These participants are defense attorneys (and a few prosecutors, and magistrates/judges) in Massachusetts. The ages of participants will range from approximately twenty-six to sixty-five years of age. The inclusion is based on the participants being attorneys in Massachusetts that have experience or an opinion on the use of videoconferencing in the courts and its impact on attorney-client communications.

Describe the procedures that you will use to recruit these participants. Be specific. How will potential subjects be identified? Who will ask for participation? If you intend to recruit using letters, posters, fliers, ads, website, email etc., copies must be included as attachments for stamped approval. Include scripts for intended telephone recruitment.

We will identify participants using a purposefully targeted, snowball sampling approach. We will use the attached materials to solicit their participation. We will explain the purpose of this study and their role. If they are interested, we will have them sign an informed consent letter (attached). Interviews will not proceed until a participant signs the informed consent letter or gives verbal consent.

What remuneration, if any, is offered?

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None.

I. Consent Process Describe the process of obtaining informed consent*. Be specific. How will the project and the participants’ role be presented to potential participants? By whom? When? Where? Having the participant read and sign a consent statement is done only after the researcher provides a detailed oral explanation and answers all questions. Please attach a copy of that you intend to use, if applicable.

If your study population includes non-English speaking people, translations of consent information are necessary. Describe how information will be translated and by whom. You may wait until the consent is approved in English before having it translated.

The goal of the consent process is to ensure participants understand their role in this study. After the study is explained, we will have the participants sign an informed consent letter. As all of the participants are attorneys and understand their rights, we avoid many concerns of undue pressure to participate or ignorance or their rights. We will read the informed consent letter together to ensure agreement on the terms of their participation. We will always seek signed letters, but will move forward with participants that are willing to move forward but choose not to sign the consent letter.

If your population includes children, prisoners, people with limited mental capacity, language barriers, problems with reading or understanding, or other issues that may make them vulnerable or limit their ability to understand and provide consent, describe special procedures that you will institute to obtain consent appropriately. If participants are potentially decisionally impaired, how will you determine competency?

N/A

*If incomplete disclosure during the initial consent process is essential to carrying out the proposed research, please provide a detailed description of the debriefing process.

182

Be specific. When will full disclosure of the research goals be presented to subjects (e.g., immediately after the subject has completed the research task(s) or held off until the completion of the study’s data collection)? By whom? Please attach a copy of the written debriefing statement that will be given to subjects.

N/A

J. Study Procedures Provide a detailed description of all activities the participant will be asked to do and what will be done to the participants. Include the location, number of sessions, time for each session, and total time period anticipated for each participant, including long term follow up.

We will inform the participants what is expected of them in the study (answering questions) and that their participation will likely take approximately 30 minutes. The questions will start with basic descriptive questions and move on to more specific questions about their views on the use of videoconferencing in Massachusetts courts, with a focus on attorney-client communications. The semi-structured interview protocol will facilitate this process. Mr. Bellone will interview the participants in a location mutually agreed upon. If necessary, Mr. Bellone will arrange a second interview with follow-up questions. Notes will be taken during the interviews.

Who will conduct the experimental procedures, questionnaires, etc? Where will this be done? Attach copies of all questionnaires, interview questions, tests, survey instruments, links to online surveys, etc.

Mr. Bellone will conduct all interviews. The interviews will likely be conducted in the offices of the participants, unless a suitable alternate location is agreed upon. All locations will be selected to ensure confidentiality and anonymity.

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K. Risks Identify possible risks to the participant as a result of the research. Consider possible psychological harm, loss of confidentiality, financial, social, or legal damages as well as physical risks. What is the seriousness of these risks and what is the likelihood that they may occur?

We expect no serious risks to the participants in this study. This is a study of the opinions of attorneys and court officials (not defendants that may be or have been the subject of videoconferencing). As all of the participants will be attorneys and court officials they have a thorough understanding of their rights. There are two minor risks. First, participants may inadvertently reveal information that identifies a specific defendant in relating information or an opinion about videoconferencing. Second, participants may reveal information that may allow close associates to identify them compromising their anonymity. We have safeguards in place to protect against both these instances (see below).

Describe in detail the safeguards that will be implemented to minimize risks. What follow-up procedures are in place if harm occurs? What special precautions will be instituted for vulnerable populations?

The main strategy for minimizing risks in the communication between the researchers and participants of these concerns is being upfront about what they are, mainly through the informed consent form. This ensures that participants understand the research and their role. As part of this process, reminding all involved about revealing sensitive information. If such information is revealed, the researchers will not include it in their notes. Further, all interviews will be conducted in private settings. Most interviews will be conducted in private offices.

L. Confidentiality Describe in detail the procedures that will be used to maintain anonymity or confidentiality during collection and entry of data. Who will have access to data? How will the data be used, now and in the future?

184

Interviews will be conducted in private places (such as private offices) to ensure confidentiality and anonymity. This will protect identities and information. Also, it will prevent eavesdropping.

Further, the researchers will use pseudonyms to protect participant identities. This will be known to the participants to give them a level of comfort about the process.

How and where will data be stored? When will data, including audiotapes and videotapes, be destroyed? If data is to be retained, explain why. Will identifiers or links to identification be destroyed? When? Signed consent documents must be retained for 3 years following the end of the study. Where and how will they be maintained?

The information from the interviews will be taken in notes. This is because many of these attorneys practice in a system that uses videoconferencing and that being identified as having concerns about the technology may be viewed negatively by decision-makers in the system (judges, magistrates, clerks, etc.) with possible deleterious effects on their practices. It is likely attorneys will decline to be interviewed if the interviews were recorded. It will have a chilling effect on the ability to gather data. Because of interviewee concerns about such deleterious effects, notes were taken at all interviews rather than recorded.

These notes will be typed up immediately after the interviews to ensure accuracy. The interviews will be stored on an internal hard drive, a transportable thumb drive, and will be backed up on an external hard drive. All of these devices are password protected. All notes, typed transcripts, and lists will be stored in a locked filing cabinet at Mr. Bellone’s home or office. When these papers are in transit, they will be on his person. Although we do not foresee additional safeguards as necessary, if more are needed they will be instituted. All materials will be kept for three years for Mr. Bellone to complete his dissertation.

M. If your research is HIPAA-protected, please complete the following; Individual Access to PHI

Describe the procedure that will be used for allowing individuals to access their PHI or, alternatively, advising them that they must wait until the end of the study to review their PHI.

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N/A

N. Benefits What benefits can the participant reasonably expect from his/her involvement in the research? If none, state that. What are potential benefits to others?

No direct benefits to participants. The study will allow participants the opportunity to use their opinions expressed in this study to impact the development of an important legal process. It will also inform policy makers and add to the larger knowledge of videoconferencing in the Massachusetts courts and its impact on attorney-client communications.

O. Attachments

Identify attachments that have been included and those that are not applicable (n/a). X Copy of fliers, ads, posters, emails, web pages, letters for recruitment *

Scripts of intended telephone conversations*

Copies of IRB approvals or letters of permission from other sites

X Informed Consent or Informed Consent and Health Information Use and Disclosure Authorization*

Debriefing Statement*

X Copies of all instruments, surveys, focus group or interview questions, tests, etc.

X Signed Assurance of Principal Investigator Form (required)

NIH Human Subject Training Certificate(s) (required if not already on file at HSRP)

*(Approved forms must be stamped by the IRB before use) P. Health Care Provision During Study

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Please check the applicable line:

__X_ _ I have read the description of HIPAA “health care” within Section 3.0 of the Policies & Procedures for Human Research Protection. I am not a HIPAA-covered health care provider and no health care will be provided in connection with this study.

______ I am a HIPAA-covered health care provider or I will provide health care in connection with this study as described in Section 3.0 of the Policies & Procedures for Human Research Protection. This health care is described above under “Study Procedures,” and the Informed Consent and Health Information Use and Disclosure Authorization form will be used with all prospective study participants.

If you have any questions about whether you are a HIPAA-covered health care provider, please contact Nan C. Regina, Director, Human Subject Research Protection at n.regina@neu.edu or (617) 373-4588.

Please return the completed application to: Nan C. Regina, Director Human Subject Research Protection 960 Renaissance Park Northeastern University Boston, MA 02115-5000 Tel: 617.373.7570; Fax: 617.373.4595 n.regina@neu.edu

The application and accompanying materials may be sent as email attachments or in hard copy. A signed Assurance of Principal Investigator Form may be sent via fax or in hard copy.

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Appendix C:

Sample Interview Script

I will like to ask you a series of questions. First, I will ask you about your background. Please remember, you identify will not be disclosed. Then, I will ask you questions regarding your impressions and/or experiences with videoconferencing in the courtroom. Please feel free to elaborate on any of these questions.

Background Questions:

w How old are you? (25-34, 35-44, 45-54, 55-64, 65-74). w Please describe your race/ethnicity. (Afro-American/Black, Asian, Latin

American/Hispanic, Native American, White/Caucasian, Other). w How long have you been practicing law? (1-4yrs, 5-9yrs, 10-14yrs, 15-19yrs, 20-

24yrs, 25-29yrs, 30+yrs). w Where do you live? w How much (ball park) do you make? $0-$25,000.00, $25,001.00-$50,000.00,

$50,001.00-$75,000.00, $75,001.00-$100,00.00, $100,000.01-$125,000.00, $150,000.00-$175,000.00, $175,000.01-$200,000.00, 200,000.01+)

w Do you primarily practice Criminal Law?

General Questions:

w Type of defendant – urban/suburban/rural. o Male/Female o Race/Ethnicity o Type of Crime o Age o Type of Charge o First offense/Other Offenses

w Describe the type of law you practice. Criminal, Civil (type), Immigration, Other w What are your beliefs/impressions of videoconferencing in the courts? w i.e. Physical contact, body language, eye contact, private communications,

other. w Describe your beliefs/impressions of videoconferencing in comparison to traditional

face-to-face interactions in the courtroom. w Describe the benefits of videoconferencing in the courtroom. w Describe the drawbacks of videoconferencing in the courtroom. w How does it impact the role/job of the Judge/Magistrate? w How does it impact the role/job of the Clerk?

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w How does it impact the role/job of the Prosecutor? w How does it impact the defendant? w How many times have you had an experience with videoconferencing in the courts? w What type of courtroom interaction was it? w Where was the court? w Tell me about the interaction. Please describe. Context. w What are your perceptions of videoconferencing? w Have you discussed this issue with other attorneys?

Targeted Questions (Emergent Meaning Theory):

What does videoconferencing (the technology) make better (enhance) in the attorney-client dynamic in the courtroom? What does videoconferencing (it) change or replace in the attorney-client dynamic in the courtroom (make obsolete)? What does videoconferencing bring back from the past that may have been missing from the attorney-client dynamic in the courtroom (it retrieve)? (i.e. a closer, more personal relationship. More frequent contact between attorney and client, etc.) What do you see videoconferencing in the future with respect to the attorney-client dynamic in the courtroom (becoming does it become when pushed to extremes)?

Targeted Questions (Information Integration Theory):

Variable that may make a difference with respect to videoconferencing.

With respect to – Type of charge.

With respect to – Prior convictions.

With respect to – Ties to the community.

With respect to – Theory of case/Recommendation of the Prosecutor.

With respect to – Theory of case/Recommendation of the Defense.

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Appendix D:

Questions and Purposes of Questions

Question Purpose

How old are you? Classification and identification.

Please describe your race/ethnicity. Classification and identification.

How long have you been practicing law? Familiarity with the legal process issues.

Where do you live? Classification and identification.

What is your socio-economic status? Classification and identification.

How much (ball park) do you make? Classification and identification.

Describe the type of law you practice. Classification and identification.

What are your beliefs/impressions of videoconferencing Perceptions of relationship in the courts? between videoconferencing and the legal process. Describe your beliefs/impressions of videoconferencing Perceptions of relationship in comparison to traditional face-to-face interactions between videoconferencing in the courtroom and legal interactions. . Describe your beliefs/impressions of videoconferencing Perceptions of relationship in comparison to traditional face-to-face interactions between videoconferencing in the courtroom between attorney and client. and attorney-client communications/relationship.

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Describe the benefits of videoconferencing in the Perceptions about courtroom. videoconferencing in general (positive). Describe the drawbacks of videoconferencing in Perceptions about the courtroom. videoconferencing in general (negative). How does it impact the role/job of the Perceptions of relationship Judge/Magistrate? between videoconferencing and the other actors in the process. How does it impact the role/job of the Clerk? Perceptions of relationship between videoconferencing and the other actors in the process.

How does it impact the role/job of the Prosecutor? Perceptions of relationship between videoconferencing and the other actors in the process. How does it impact the defendant? Perceptions of relationship between videoconferencing and the other actors in the process. How many times have you had an experience with Description of videoconferencing in the courts? videoconferencing from the attorney’s perspective. What type of courtroom interaction was it? Description of videoconferencing from the attorney’s perspective.

Where was the court? Description of videoconferencing from the attorney’s perspective.

Tell me about the interaction. Description of videoconferencing

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from the attorney’s perspective.

Type of defendant - urban/suburban/rural. Classification and identification.

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Theory Perspectives

Emergent Meaning Theory:

What does videoconferencing (the technology) make Measurement for Emergent better (enhance) in the attorney-client dynamic in the Meaning Theory. courtroom? What the medium amplifies or intensifies. What does videoconferencing (it) change or replace in Measurement for Emergent the attorney-client dynamic in the courtroom Meaning Theory. What the medium drives out of prominence. (make obsolete)? What does videoconferencing bring back from the past Measurement for Emergent that may have been missing from the attorney-client Meaning Theory. dynamic in the courtroom (it retrieve)? (i.e. a closer, What the medium recovers more personal relationship. More frequent contact which was previously lost. between attorney and client, etc.) What do you see videoconferencing in the future Measurement for Emergent with respect to the attorney-client dynamic in the Meaning Theory. courtroom (what does message become when pushed What the medium does extremes)? when pushed to its limits.

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Information Integration Theory

Variable that may make a difference in Measurement for videoconferencing with respect to: Information Integration Type of Charge. Theory. Variable that may make a difference in Measurement for videoconferencing with respect to: Information Integration Prior convictions. Theory. Variable that may make a difference in Measurement for videoconferencing with respect to: Information Integration to Ties the community. Theory. Variable that may make a difference in Measurement for videoconferencing with respect to: Information Integration Theory of case/Recommendation of the Theory. Prosecutor. Variable that may make a difference in Measurement for videoconferencing with respect to: Information Integration Theory of case/Recommendation of the Theory. Defense.

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Appendix E:

Informed Consent to Participate in a Research Study

You are being invited to be part of a research study. This form will inform you about the study. After you have fully read it you can ask any questions you might have. You do not have to participate in this study. If you do decide to participate, please sign this form. A copy will be provided to you. I am conducting a study of the impact of videoconferencing on attorney client communication. The goal of the study is to understand how this technology impacts attorney-client relationship, interactions, and communications in the courtroom. If you take part in this study, you will be asked about your thoughts, impressions, and/or experiences with videoconferencing. Interviews will be conducted at a time and place of your convenience. The interview will likely last 30 to 45 minutes. No names will be used in the presentation of this study and all reasonable efforts will be made to keep all information confidential. The interviews will not be digitally recorded but, with your permission, I will take notes. These notes will be maintained for at least five (5) years in a locked secured location. There will be no direct benefit or compensation for taking part in this study. The information learned in this study will help inform future policy decision regarding the use of videoconferencing in the courtroom. Your participation is completely voluntary. You may refuse to participate in this study. You may refuse to answer any question during the interview and can stop the interview at any time. You may contact me at (781) 799-0997 if you have any questions. If you have any questions about your rights as a participant, you can contact Human Subject Research Protection, Division of Research Integrity at Northeastern University at (617) 373-7570. _____ I agree to be interviewed _____ I agree to be contacted for follow up or clarification _____ I agree to have notes taken during the interview Signature of Participant Date Printed Name

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Eric Bellone, Researcher Date

IRB #

Northeastern University

Institutional Review Board

ASSURANCE OF PRINCIPAL

INVESTIGATOR Investigator(s): Thomas Koenig (PI) and Eric Bellone

Title of Proposal: Videoconferencing in the Courts: An Exploratory Study of Videoconferencing Impact on the Attorney-Client Relationship

To give assurance, please read and initial each statement, then sign below.

X 1. I have read and understand Northeastern University’s Policies and Procedures Concerning the Protection of Human Subjects and the Federal Wide Assurance. I give my assurance that I, and all members of the research team, will adhere to the policies in this research.

X 2. I assure that no participants will be recruited or enrolled, and no data will be collected, without

current, written approval from Northeastern University, and other sites as required.

X 3. I assure that the rights and welfare of all participants will be protected according to the procedures approved for this project by the NU IRB.

X 4. I assure that all risks or discomforts to subjects will be clearly explained, and that I will demonstrate

how risks are outweighed by potential benefits to the subject or by the importance of the knowledge to be gained.

X 5. I assure that the informed consent of all participants will be obtained by methods that meet the requirements of

Northeastern University's policy and assurance procedures.

X 6. I assure that no changes in research activity will be initiated without prior NU IRB review and approval, except where necessary to eliminate apparent immediate hazard to the subjects.

X 7. I assure that I will report any problems involving risks to human subjects or others promptly to the Office of

Human Subject Research Protection.

X 8. I assure that there are no financial or other relationships (e.g., stock ownership, advisory board, speaker’s

bureaus, honoraria) that might be viewed as creating a conflict of interest.

Signature: Date: Principal In

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For student research, the faculty advisor is the principal investigator for the study and is primarily responsible for the ethical conduct of the research. Faculty must review and approve student research prior to submission for NU IRB review. Student investigators must sign this Assurance also.

Signature: Date: Student Inv

DEPARTMENT CHAIR/PROGRAM DIRECTOR SIGNATURE (Required) I am aware that this protocol is being submitted to the Northeastern University IRB. I do not make any assertions about human subject protections for this research project. Signature: Date:

Department Chair or Program Director

Please return completed form to: Human Subject Research Protection

960 Renaissance Park, Northeastern University Boston, MA 02115 Tel: 617.373.7570, Fax: 617.373.4595

NU HSRP - Rev. 4-15-2010