During the current COVID-19 pandemic, several different types of criminal court appearances have been conducted remotely: arraignments in state courts, presentments in federal court, detention hearings, guilty pleas, and even sentencing hearings. New Jersey state courts have just begun a “pilot program” to conduct remote grand jury presentations in two counties, and in Texas a jury trial was commenced remotely – only to be abandoned when one of the jurors went “off camera” to answer a phone call during a witness examination.
The criminal defense bar is justifiably concerned about the slippery slope of litigating stages of a criminal prosecution by phone conference, video, or otherwise remotely. There are serious legal objections to the remote conducting of critical stages of criminal proceedings: it deprives defendants of the constitutional right to confront witnesses, raises a barrier to an impartial jury, adversely impacts due process and effective counsel. Legal scholars all over the country are now taking steps to raise those objections.
However, there remains a simple expedient for counsel to avoid sliding into the routine conduct of virtual court proceedings that may devolve into virtual trials.
Just say no.
No, you won’t participate. No, your client will not consent.
The federal courts have taken great pains to provide forms whereby criminal defendants give their written consent, along with counsel, to remote proceedings. Don’t sign the forms. Federal Rules of Criminal Procedure 10 and 43 make clear that the defendant’s presence is required and can only be waived in certain narrow circumstances. The rules acknowledge a defendant's fundamental right to be present at all stages of a criminal proceeding.
In state courts the rules have varied, but where defense counsel stands firm and refuses to participate in remote proceedings, and the client upon advice of counsel does not consent, a court will be hard put to proceed. The appellate issues would seriously concern a trial court. Further, an adamant counsel who may be “ordered” to proceed by a rigid judge can and should petition for a writ of mandamus and a stay of the proceedings. Such push-back often gives pause to a precipitate judge.
The bottom line is that the criminal accused will be irreparably injured if we accede to the pressure of the slippery slope. So dig in your heels, take the heat, and just say no.