Videoconferencing to the Rescue

By: James Trusty

While the recent passage of the “Coronavirus Aid, Relief, and Economic Security (“CARES”) Act is receiving tremendous attention because of its price tag, strategies to keep businesses and families afloat, and its hidden gems for beneficiaries like the Kennedy Center, it also has a component that is important for federal practitioners who handle criminal matters in District Courts around the country. 

Federal courts currently show very little interest in using videoconferencing technology on a routine basis. In most courthouses, the ability to participate by telephone in mundane proceedings like status conferences can be allowed or even promoted, but very little else is done without all parties and the defendant physically present.  The exception is Federal Rule of Criminal Procedure (“FRCrP”) 43(b)(2), which allows defendants charged only with misdemeanors to enter a guilty plea or appear for sentencing through videoconferencing.  But other than that provision, there is a generally supported sentiment that the defendant should be in the same room as the judge controlling his or her fate. Interestingly, many state courts are routinely using videoconferencing for initial appearances/bail reviews. Allowing jailed defendants to appear by video saves transport resources and is safer than bussing a group of defendants from jail to courthouse. Despite the inherent logic of such a procedure, it took CV-19 to introduce some change into the federal technological equation. 

Court TV 

The CARES Act created a procedure where courts can implement videoconferencing in a wide range of time-sensitive criminal matters as long as 1) the President has declared a national emergency and 2) the Judicial Conference of the U.S. Courts finds that the emergency “materially affects the functioning” of U.S. federal courts. Those two things have already happened, which leads to a third step—the Chief Judge (or his or her equivalent if the Chief Judge is unavailable) confirming his or her approval of these procedural changes for their particular district. Practitioners have probably already been on the receiving end of electronic case filings from their practice venues where the Chief Judge orders the implementation of these CARES Act changes. Specifically, when a defendant consents to videoconferencing, it can be used in the following settings: 

• Detention hearings under 18 U.S.C. § 3142.  
• Initial appearances under FRCrP 5. 
• Preliminary hearings under FRCrP 5.1. 
• Waivers of indictment under FRCrP 7(b). 
• Arraignments under FRCrP 10. 
• Probation and supervised release revocation proceedings under FRCrP 32.1. 
• Pretrial release revocation proceedings under 18 U.S.C. § 3148.  
• Appearances under FRCrP 40. 
• Misdemeanor pleas and sentencings as described in FRCrP 43(b)(2), and 
• Juvenile proceedings under chapter 403 of title 18, United States Code (commonly known as the ‘‘Federal Juvenile Delinquency Act’’), except for contested transfer hearings. 

The Remaining Questions 

Applying videoconferencing to felony plea and sentencing proceedings is discouraged but not completely off-limits.  The CARES Act adds an additional, and significant, hurdle to implementation:  the district judge in the particular case must justify use of videoconferencing by finding “specific reasons that the plea or sentencing in that case cannot be further delayed without serious harm to the interests of justice.” (emphasis added).  Of course, the odds are great that the appellate courts will never reach the issue of defining “serious harm” or “interests of justice” in this context, because by definition the defendant is consenting to the procedure.  But even if appeals are unlikely, it seems likely that the district court judge is going to need something more compelling than just assertions that “we really want to do it this way.”  What leaps to mind as a sufficient basis is binding time-served sentencing agreements, where waiting a few months has serious repercussions. 

Trial Run 

Successful use of videoconferencing could provide lasting comfort to courthouses where technological advances are only grudgingly embraced.  Federal courts may become used to the efficiency and comparative security provided by videoconferencing bail reviews, for example.  One pesky drawback that will need attention is cyber-security.  Federal prosecutions rely heavily on cooperating defendants, and the need for safeguarding these cooperators leads to sealed dockets and closed proceedings.  But what happens when (note the use of “when,” not “if”) someone successfully hacks into a federal videoconference proceeding? In federal prosecutions where cooperators are betraying violent gangs, the mafia, or drug cartels, the consequences of a videotaped guilty plea or bail review in which cooperation is evident could be lethal. Over the long haul, then, the CARES Act promotion of videoconferencing may serve as a great trial run for possible expansion across federal courthouses. For now, it will allow the judges to keep up with only the most time-sensitive hearings that would overwhelm the courts and jails if postponed en masse.