Hoping to Appear in Court Via Skype? Not So Fast.

Skype is no longer only for catching up with friends who are traveling around the world or for children who want to show grandma their latest masterpiece.

Now, people can use Skype to speak with a judge. That means instead of potentially spending hours traveling to and from court, or frantically figuring out who is going to take care of your children, or, in some instances, being intimidated by your abuser in court as you request an order of protection, in some places, you can now sit in front of your computer from a remote location and speak with a judge through the screen.

And some judges seem to be embracing the technology — albeit, not without concerns. A 2016 New York City Bar Association report found that about half of New York State judges who oversee criminal cases allowed people to appear by videoconference because they thought it was more efficient.

For example, the City Bar report found that in New York State, criminal court judges use videoconferencing for “routine calendar calls, hospitalized defendants, and post-conviction matters and when a defendant is detained upstate or in another jurisdiction” in addition to arraignments and pretrial conferences. And recently, New York State amended the Family Court Act to allow domestic violence victims to speak with a judge by videoconference for the initial appearance on a temporary order of protection application when traveling to court would create a hardship or be unsafe.

In Missouri, defendants can also appear in court by videoconference in certain proceedings such as their first appearance before a judge, arraignments where the defendant enters a not guilty plea, and any civil proceeding other than a jury trial. And the Vermont Supreme Court allows videoconferencing where the person involved in the proceeding is incarcerated and for certain witnesses.

Although many judges are utilizing videoconferencing, the technology has not expanded to all court proceedings. One of the main reasons lies in the Constitution.

The Constitution provides people involved in a court proceeding with certain rights: the right to due process (fair and equal treatment), the right to counsel (people can be represented by and consult with counsel during trial), the right to be present (people can personally appear in court), and the right to confront a witness (people can look their accuser in the eye). And in the courtroom, the judges are the gatekeepers of those rights. According to a 2016 study of rural and urban state courts by the National Association for Presiding Judges and Court Executive Officers (NAPCO), judges are less likely to allow people to appear by videoconference in circumstances where those rights may be impaired, namely where evidence is being presented and witnesses will be cross-examined. The City Bar report echoed this same apprehension: “[M]any [judges] expressed real concerns about constitutional implications — the right to counsel, due process, and the right to confrontation.”

A recent court case, New Mexico v. Thomas, aptly illustrates this concern. In that case, a New Mexico Supreme Court judge overturned a murder conviction because the use of Skype testimony of a key expert witness violated the Sixth Amendment, which guarantees criminal defendants the right “to be confronted with the witness against him.” The judge stated the use of Skype was not “necessary to further an important public policy” and “inconvenience to the witness is not sufficient reason to dispense with this constitutional right.”

Current laws and court rules safeguard these constitutional rights by not allowing videoconferencing in certain proceedings. Take for example the Vermont Supreme Court. There, videoconferencing is not permitted in certain criminal proceedings such as trials, sentencing hearings, certain contested hearings, and any hearing where a defendant has the right to cross-examine a witness. Likewise, in the Queens Supreme Court, video court appearances are not allowed for hearings, trials, and certain pleas in the criminal division. Similarly, in Missouri, videoconferencing is not allowed in certain criminal proceedings where a witness is going to be cross-examined or in jury trials.

Another concern of some judges, as noted in the City Bar report, is that the technology is “not consistently reliable and [there are] setup challenges.” The NAPCO report also mentioned that videoconferencing needs to be secure and the technology reliable. In addition, social media and technology attorney John Hutchins expressed other fears: how a remote witness is going to appear to a jury when other witnesses are present in court; how the witness is going to appear on video as some people are better than others on video; and the technology’s reliability.

So, what’s the verdict? The jury is still out on whether court appearances by Skype or other videoconferencing technology are going to expand to all court proceedings given the constitutional concerns and how it may impact a case.

Photo: Manhattan Family Court Judge demonstrating Skype Hearing. Photo Credit: Beth Fertig/WNYC News