During the COVID-19 pandemic, criminal court systems moved to virtual proceedings to maintain essential court operations while minimizing the spread of COVID-19. To understand more about that transition and the lessons it holds for the future, we surveyed North Carolina trial judges, prosecutors, defenders, and clerks of court about virtual court. Our survey included questions about changes to court proceedings during the pandemic, the benefits of and concerns about virtual court, best practice suggestions for virtual proceedings, support for various virtual proceedings, experiences with using various technology platforms, and other aspects of virtual proceedings. We received responses from 182 people (Figure 1) from all 100 North Carolina counties.

Figure 1. Survey Respondents’ Current Role in the Criminal Justice System

Our full report is available here. In this post we summarize some top line results.

Change in Use of Virtual Proceedings.

According to respondents, virtual first appearances were the most common type of virtual proceeding, both before and during the pandemic. Before the pandemic, relatively small numbers of respondents had participated in virtual guilty plea proceedings, bond motion hearings, counsel advisements, probation violation hearings, capacity hearings or search warrant proceedings. During the pandemic, some of those numbers changed considerably (Table 1).

 Table 1. Proceedings Conducted Virtually Before and During the Pandemic

*Other than at first appearance

Virtual Proceedings–Overall Advantages

Our full report details advantages cited by respondents with respect to each of the proceedings listed in Table 1. Across all types of virtual proceedings, however, the most commonly reported advantages were increased efficiency, increased safety, and alleviated transportation needs.

Increased Efficiency

Three themes emerged regarding efficiency benefits. First, respondents thought that virtual proceedings would be more streamlined than in-person ones. Many stated that they would spend “less time waiting” for proceedings to begin. Participants also believed that virtual proceedings would be more to-the-point, as people would be less likely to engage in irrelevant or unnecessary discussions. Many indicated that conducting court virtually would require court actors to prepare more in advance, eliminating time spent in proceedings getting familiar with information and looking for and preparing paperwork. Second, respondents noted that conducting proceedings virtually could also save time through scheduling. They indicated that virtual proceedings would “allow more flexibility in scheduling”, make it “easier to schedule for a time certain”, and would “require less coordination” since fewer people need to be present. Many indicated that virtual proceedings could be scheduled faster and sooner. Finally, respondents noted that virtual proceedings may decrease overall costs, primarily as a result of time savings and lower staffing needs. Cost savings were especially noted for proceedings that require the presence of law enforcement officers and/or transportation of defendants.

Increased Safety

With respect to safety, respondents primarily noted reduced risk of exposure to COVID-19; frequently including statements about “social distancing”, “reduced interactions with people”, and “limiting exposure”. For proceedings that involve in-custody defendants, respondents were especially concerned about the spread of COVID-19 between the courtroom and jail. Some also noted safety advantages of virtual proceedings beyond COVID-19 considerations, including alleviating risks of physical or mental harms for court actors, defendants, or victims.

Alleviated Transportation Needs

Respondents indicated that by removing the need for transportation, virtual proceedings greatly reduced the time and resources needed to conduct proceedings. For proceedings that involve in-custody defendants, respondents reported that conducting proceedings virtually would remove the need for law enforcement officers to transport defendants between the jail and the courthouse, freeing up law enforcement time and “minimiz[ing] transportation costs”. Respondents noted that virtual proceedings also would alleviate transportation needs for court actors, defendants who are not in custody, witnesses, victims, and family members.

Virtual Proceedings– Overall Concerns

Our report details concerns cited by respondents with respect to each of the proceedings listed in Table 1. Across all types of virtual proceedings, however, the most common identified concerns were problems with effective communication generally, Sixth Amendment right to counsel issues, lack of access to necessary technology, and inefficiency.

Barriers to Effective Communication

Respondents frequently reported that conducting proceedings virtually would inhibit effective communication between court participants. This was primarily linked to the importance of non-verbal communication, which participants were concerned would not translate well virtually. One respondent stated, “The ability to read body language, facial expressions, etc. are probably needed.” Another agreed saying, “I trust in the powers of observation and I am not confident that remote hearings can adequately convey information.” Additionally, many respondents related the importance of non-verbal communication to assessing credibility of witnesses and defendants.

Respondents also had concerns about defendants’ understanding of virtual proceedings. They were concerned that defendants would not fully understand information presented to them, their rights, and/or what is required of them. Further, respondents expressed concern that defendants would be unwilling or unable to ask clarifying questions. One respondent expressed the concern that “the client may feel marginalized by being left out of the actual court room.” Respondents also were concerned that conducting proceedings virtually would “allow the defendant to be dehumanized.” One person stated, “the judge may be more willing to hand down a harsh sentence without the physical presence of the accused.”

Finally, many respondents indicated that it would be too easy for participants to be distracted during virtual proceedings. Respondents were concerned that court participants would be “not as present” or “zoned out”. These responses frequently cited potential distractions that could be present in virtual proceedings, such as “dogs barking”, “a package delivery”, “play[ing] a game on [the] computer”, or “family around talking.”

Sixth Amendment Issues

Many respondents indicated concerns about defense attorneys’ ability to communicate effectively and confidentially with their clients both before and during virtual proceedings. Examples of these comments include:

• “Securely and privately communicating with Counsel is my biggest concern with all virtual hearings.”
• “the attorneys cannot communicate privately with the respondents prior to or during the hearing. The inability of the lawyers to assess their clients or to communicate with their clients violates the respondents [sic] . . . rights.”
• “inability of the defendant to speak directly to counsel without delaying the proceedings. There needs to be a system devised to allow direct, secure communication.”

For proceedings in which defendants do not yet have an attorney, respondents were concerned about the timeliness of defendants being able to connect with counsel. Respondents also were concerned about defendants’ understanding of their right to counsel and their ability to initiate contact with appointed counsel. One respondent stated, “a defendant, being confused, declines counsel, simply because there is no attorney present to signal that this may be a disadvantage to him.” Respondents were concerned that virtual proceedings would delay contacts between defendants and counsel because of issues “getting attorney information to the client” and because “[the] inmate does not have immediate access to their assigned attorney”. Another respondent echoed this concern, stating that they were not sure how the defendant would receive their attorney’s contact information because “getting the phone numbers and addresses to the defendants would normally be done in person by handing them a business card.”

Respondents also were concerned about lawyers’ ability to speak privately and confidentially with defendants during virtual proceedings, noting that attorneys often need to clarify or discuss issues with their client and remind them what they should (or should not) say in court. One stated, “Having the attorney and the defendant in a separate place concerns me during the proceeding in case there are any questions or the defendant needs to speak with his/her attorney confidentially.” Further, even if the attorney is able to speak with their client virtually, respondents expressed concerns that the communication would not be private. One respondent indicated that “the telephone really does not work well when the attorney is in the courtroom” and that they were “not sure how much privacy the defendant has on the jail end of the phone.” Additionally, many respondents indicated the importance of smaller, more immediate attorney-client communications, particularly to nudge or inform defendants regarding what to say or withhold during proceedings. One respondent stated, “it’s hard [for] an attorney to jump in and provide advice if a person is saying things they shouldn’t or if something happens that shouldn’t.” Another stated that attorneys often “spend a lot of time interrupting defendants and reminding them not to talk about their case on video”.

Technology Access

Respondents frequently expressed concern about the ability to access and use the technology needed to conduct effective virtual proceedings. They voiced concerns about access to good technology and equipment, as well as the potential failure of the necessary technology.

Respondents expressed concern about the “widespread availability of technology”, noting that certain jurisdictions may not have the necessary equipment and that people outside of the courtroom may not have access to the required technology. Respondents also frequently indicated that victims, family members, and the public do not have access to the technology needed to attend virtual proceedings. Additionally, respondents expressed concern that, even if the jurisdiction has the appropriate technology, people did not have the proficiency needed to operate it.

Many respondents expressed concern about technological issues or failures during virtual proceedings. One respondent stated that courts “do not have the IT infrastructure to conduct these hearings virtually”, and another indicated that they were “very concerned that technology would not work right and that could cause constitutional issues.” Respondents indicated concern about multiple technological issues, including “technological glitches”, “feedback issues”, “sound [going] in and out”, and “dragging internet”. Concerns about technological failure were amplified by participants’ own experiences with technology issues during virtual court proceedings:

• “More often than not, the video equipment does not work or does not work properly . . . When the equipment does not work properly, especially the audio portion, it is extremely frustrating for the judge and the defendant. It also causes the jail to have to bring the defendant to the courtroom and causes delays in the court proceedings and disrupts the flow of court” (identifiers in this quotation were removed).
• “Our experience with it was horrible. The sound was in and out and the connection was not good. We had to restart and go back and redo multiple times.”
• “Our bandwidth is very slow here and it was difficult for that reason. It was a lot of work to get it set up with the prison system and I was sure it would not happen up until the last minute” (identifiers in this quotation were removed).

Decreased Efficiency

Although many respondents identified increased efficiency as a benefit of virtual proceedings, many thought otherwise, indicating that virtual proceedings would be less efficient than in-person ones. These concerns were primarily voiced regarding logistical aspects of court processing, particularly completing and filing necessary paperwork. Some respondents also expressed concern that setting up virtual court proceedings and transitioning between cases would take more time than if proceedings were conducted in-person.

Other Concerns

Other reported concerns about virtual proceedings included enforcement of judicial orders, increased likelihood of appeals, and perceived legitimacy of proceedings.

Feedback on Specific Court Proceedings

Our full report details support for and against various court proceedings including first appearances, guilty plea proceedings, bond motion hearings, counsel advisement hearings, probation violation hearings, grand jury proceedings, capacity hearings and search warrants. Support for and against these various proceedings varied. For example, while the vast majority of respondents supported virtual first appearances, the level of support for virtual probation violation hearings was mixed, and only a minority of respondents supported virtual grand jury proceedings. Our full report also details advantages and concerns that respondents reported for each of these proceedings, and their best practice suggestions for them.

Sarah Duhart Clarke, PhD student at North Carolina State University, is a co-author of the report, and contributed to this blog post.

The post Virtual Court Proceedings—North Carolina Court Actors Weigh In appeared first on North Carolina Criminal Law.