For the time being, the courts have suspended in-person jury trials and preliminary hearings. All of us have a legitimate concern about gathering together, in large groups, in closed spaces, for extended periods of time. There is little doubt that in-person courtroom hearings, even with social distancing measures in place, would seriously jeopardize public health and safety. The suspension of trials will necessarily cause delays in resolving contested cases. While many out-of-custody defendants will not agonize over the delay, prolonging a criminal case is not always in the client’s best interest. The Supreme Court acknowledged that “it is not necessarily true that delay benefits the defendant. There are cases in which delay appreciably harms the defendant’s ability to defend himself.”1 The Court identified several harms caused by delay including oppressive pretrial jail confinement; the inability to lead a normal life; living under a cloud of anxiety, suspicion, and often hostility; and the possibility that the defense will be impaired.2
That harm is real. Prolonged delay in resolving a case disrupts employment, drains financial resources, curtails associations, subjects the defendant to public scorn, and creates anxiety not only for the defendant but the defendant’s family and friends.3 Defendants often are required to “make numerous fruitless and costly trips to court”4 and travel back and forth for urinalyses and trial settings.5 Some will lose wages or time away from work6 sometimes amounting to thousands of dollars in income.7 Some defendants may lose “potentially exculpatory evidence.”8 During the Covid 19 Pandemic, living under a cloud of suspicion can make finding scarce employment even more difficult. City of Austin employees may not be able to return to work until their criminal cases are resolved. Some people who drive for a living with a commercial driver’s license may find their driving privileges are suspended. There are many reasons a wrongfully accused person may not want to wait indefinitely to resolve their criminal case.
Despite the need to resolve some cases quickly, I am in general opposed to conducting jury trials on-line by video-conference. At trial, a lawyer needs to effectively exercise peremptory challenges during jury selection. A tremendous amount of non-verbal communication is lost when counsel attempts to gauge a venire member’s reactions over a computer screen. A lawyer’s ability to assess a potential juror’s true inclinations is seriously compromised by not seeing a juror’s facial expressions, style of dress, and body language.9 Effective voir dire requires not only listening to a juror’s answers but judging the juror’s physical reactions to other jurors’s responses and evaluating their physical demeanor toward the defendant, the prosecutor, defense counsel, and their physical surroundings.
Many jurors fear public speaking and many will be disheartened to learn that the Open Courts provision of the Texas Constitution will require broadcasting their faces and comments on YouTube for the world to see. Personal information will be more heavily guarded and difficult truths will not be readily revealed. Many panel members will simply choose to skip jury duty rather than comply with social distancing requirements. 10 Those who do show up may not reflect the values of a representational cross-section of the community. A juror’s capacity to reach a verdict and hold other jurors accountable happens in a group while seated around a table. Watching a jury trial unfold on a computer screen depreciates the formal nature of the proceedings and lessens any sympathy a juror may feel for a live in-person defendant. Watching a criminal trial on a computer has more in common with a fictional made for TV courtroom drama than with watching a live trial, in-person, with real life consequences. Jurors will fold down their laptops when things get uncomfortable or carry on with the other demands of their busy day.
While I oppose jury trials by videoconference, I have had success with a pretrial videoconference hearing conducted remotely over Zoom. Remote pretrial hearings do not have the same infirmities as selecting a jury remotely and there are some practical advantages. On the right case, it may be advisable to consider this possibility. Every case is different and with Zoom hearings there are several important factors to consider.
The first concern is how much longer will it take before a client may have an in-person courtroom hearing. If there is no urgent need to move forward, then maybe you should wait. On the other hand, if the client’s case might be prejudiced by the delay then a remote hearing might be advisable. Counsel needs to have this conversation with the client assessing the risks and benefits and the particular circumstances of the client’s case. If there are a significant number of issues surrounding admissibility of exhibits or witnesses, then a Zoom hearing might not be a good option. On the other hand, a Zoom hearing might work well if both sides can agree on the legal issue, i.e., reasonable suspicion for the stop in a DWI case, and the evidence is limited to video, the testimony of the officers, and a few still photographs.
Another issue to consider is that during any “Stay at Home” order, the client may be at a remote location, probably at home, and not sitting beside her lawyer. During an in-person hearing both the client and counsel are afforded an adequate opportunity to confer confidentially at counsel table — we can quietly exchange information as the witness testifies from the witness stand. That communication is sometimes critical to quickly posing the next set of cross-examination questions. More often, however, I may ask my client to write their comments on a legal pad and show them to me since I cannot listen attentively to my client and the witness at the same time. One way to compensate for this lack of communication during a Zoom hearing would be to communicate by text over cell phones when necessary during the hearing. The chat feature on Zoom is not a secure method of communication and there is the potential for accidentally texting to all participants in the hearing. Another option would be to request a brief recess before the witness is released so the attorney and client may discuss by phone whether any follow-up questions are necessary.
As you might expect, another concern is that witnesses that testify remotely may have a lesser appreciation for the seriousness of the proceedings. A witness who walks into a courtroom enters a space that is steeped in tradition. This is a place to right wrongs and seek justice. The setting is imposing. Atop the bench sits a judge in a dark robe. Beside the judge are American and Texas flags which engender patriotism, devotion, and respect for public service. Murals of distinguished judges instill a sense of continuity. Witnesses raise their right hand before testifying. There is order in the court. People dress up. They pass through metal detectors. There is a bailiff who keeps a watchful eye and maintains decorum. None of these institutions can fairly be said to accompany a Zoom hearing.
This attorney can credit a time or two when a witness’s testimony has strayed from the objective facts and not adhered firmly to the literal truth. We have traditionally compelled witnesses to give live testimony in a courtroom, to impress upon them the seriousness of the proceedings, and to confront them in-person by a skilled lawyer. A Zoom conference can feel familiar to some witnesses and certainly less formal than a serious in-person proceeding. It is therefore foreseeable that a witness testifying remotely may come to feel that in this more relaxed environment, a lack of complete candor will go unnoticed. It is advisable to have the court remind the witness that despite the less formal setting, the videoconference is an official proceeding. In addition to the oath, the court should admonish the witness on the elements of aggravated perjury.
Admitting electronic exhibits is not complicated. From your computer you can share exhibits with the witnesses and the other participants. All exhibits should be searchable and organized for easy access from the computer. There is no need to cart files and equipment to the courthouse. A Zoom hearing may not allow for the court reporter to mark your exhibits so all exhibits should be pre-marked and pre-submitted. In preparation for the hearing, defense motions, exhibits, and a witness list should be provided to the court reporter and opposing counsel before the hearing. This requires some extra work and also limits last minute surprises. If you expect that you will offer additional exhibits during rebuttal, you will need to pre-mark those exhibits and offer them via email to all courtroom participants during the hearing.
Unless the case has drawn some media attention, there usually are very few interested spectators that appear at an in-person hearing. Your Zoom hearing will be broadcast over YouTube to comply with the Open Courts provision of the Texas Constitution. Broadcasting over YouTube allows members of the public and the press to easily view the hearing remotely. The client needs to understand this. He may not like the fact that people at work, or back home, or anywhere for that matter can watch the hearing and learn about the allegations and the evidence in the case.
Attorneys can reasonably disagree about whether it makes sense to voluntarily participate in a Zoom hearing. It is important to understand however, that Governor Abbott’s Emergency Order authorizes Texas courts without a participant’s consent, to require anyone involved in any hearing to participate remotely by teleconferencing, videoconferencing, or other means.11 If you wish to contest participation in a videoconference hearing, it is important to cite the appropriate legal authority regarding the Defendant’s right to be present12 and asserting that a videoconference hearing violates the client’s right to confidentially confer with counsel during the hearing.13 As mentioned above, a problem inherent with Zoom hearings is its effect on attorney-client communication during the hearing. When counsel and client are in separate remote locations, to an extent, counsel gives up the advantage of privately conferring with his or her client. Unless alternate communication measures are instituted, counsel’s effectiveness is diminished. Whether you volunteer to participate in a Zoom hearing or if a judge compels your involuntary participation, lawyers may wish to have a say in the terms by which the hearing is to be conducted. To that end, you may want to submit a proposed Videoconference Agreement which protects against the potential loss of rights that accompany formal in-person proceedings. A sample agreement is attached for your review.
2 Id. at 2193.
3 United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971).
4 Zamorano v. State, 84 S.W.3d 643 (Tex. Crim. App. 2002) (noting twenty-two resets of pending case and at least eleven days of missed work due to court appearances).)
5 Stock v. State, 214 S.W.3d 761 (Tex. App.—Austin 2007, no pet.)
6 Id. at 654 (noting that defendant day-laborer suffered at least $1,320 in lost wages from making fruitless court appearances).
7 State v. Burckhardt, 952 S.W.2d 100 (Tex. App.—San Antonio 1997, no pet.)
8 Stock v. State, 214 S.W.3d 761 (Tex. App.—Austin 2007, no pet.)
9 While the following passage refers to judging the non-verbal communication of a witness, its application to the exercise of peremptory challenges during jury selection applies with equal force:
Many years ago, Jerome Frank, in his work Law and the Modern Mind (1931), informed the legal world what it probably already knew; that the elusive and incommunicable evidence of a witness’s deportment or demeanor while testifying in a court of law or court of equity may be the most important single thing that the trier of fact uses in judging the credibility of that witness, rather than the actual testimony that he gives. Thus, such things as the age of the witness, his physical appearance and health, whether he has the brazen face of the liar or the glibness of the schooled witness reciting a lesson, or the itching overeagerness of the swift witness, the tone of his voice, his hesitation or readiness with which his answers are given, his facial expressions, his gestures, his zeal or lack of zeal when testifying, his bearing or lack of bearing, his yawns, shrugs, sighs, how he parts his hair, whether he crosses his legs or arms, pulls on his ear lobes, picks at his nose or eyebrows, or how he places his hands on his body, whether he repeatedly wipes his hands or his brow, whether he has furtive or meaningful glances when testifying, the pitch of his voice, his self-possession or embarrassment, his air of candor or seeming levity, or the lack thereof, his calmness, the scant or full realization of the solemnity of an oath, or his carriage and mien, etc., either singularly or collectively, give meaning to the saying “Truth does not always stalk boldly forth naked, but modest withal, in oral abstract in nooks and crannies visible only to the eye of the fact finder who hears the case.” Rains v. Rains, 17 N.J.Misc. 310, 8 A.2d 715 (New Jersey Ct. of Chancery 1939). Also see Feldman & Chesley, “Who is Lying, Who is Not: An Attributional Analysis of the Effects of Nonverbal Behavior on Judgments of Defendant Believability,” 2 Behavioral Sci. & L. 451 (1984); Le Van, Noverbal Communication in the Courtroom: Attorney Beware, 8 L. & Psychology Rev. 83 (1984); Saxe, Psychiatry, Psychoanalysis, and the Credibility of Witnesses, 45 Notre Dame L.Rev. (1970); Maier & Thumber, supra.
Good v. State, 723 S.W.2d 734, 743–44 (Tex. Crim. App. 1986)
10 “About 50 people showed up for the first day of jury service out of the 1,000 who received summons, said Al Ortiz, spokesman for the Harris County District Clerk’s Office.” See Houston Chronicle July 6, 2020 at https://www.houstonchronicle.com/news/houstontexas/houston/article/Harris-County-grand-jury-selection-begins-at-NRG-15389817.php.
11 Misc. Docket No. 20-9071, Seventeenth Emergency Order Regarding the Covid-19 State of Disaster, May 26, 2020.
12 The Texas Court of Criminal Appeals has held that within the scope of the right of confrontation in both the federal and state constitutions is the absolute requirement that a criminal defendant who is threatened with loss of liberty be physically present at all phases of proceedings against him, absent a waiver of that right through the defendant’s own conduct. Miller v. State, 692 S.W.2d 88, 90 (Tex. Crim. App. 1985).
In all prosecutions for felonies, the defendant must be personally present at the trial, and he must likewise be present in all cases of misdemeanor when the punishment or any part thereof is imprisonment in jail; provided, however, that in all cases, when the defendant voluntarily absents himself after pleading to the indictment or information, or after the jury has been selected when trial is before a jury, the trial may proceed to its conclusion….
Tex. Code Crim. Pro. Ann. art. 33.03.
Sec. 1. The court may set any criminal case for a pre-trial hearing before it is set for trial upon its merits, and direct the defendant and his attorney, if any of record, and the State’s attorney, to appear before the court at the time and place stated in the court’s order for a conference and hearing. The defendant must be present at the arraignment, and his presence is required during any pre-trial proceeding.
Tex. Code Crim. Pro. Ann. art. 28.01.
13 Stone v. Morris, 546 F.2d 730 (7th Cir. 1976) [Inmate who brought civil rights action against prison officials and who was not permitted to attend trial, was denied opportunity to examine and test witnesses’s testimony to jury and precluded from aiding and assisting counsel.] See also, Armstrong v. Randle, 881 S.W.2d 53, 57 (Tex. App.—Texarkana 1994, writ denied) [“If the inmate and his counsel are afforded adequate opportunity to confer confidentially and to petition the courts about the matters in controversy, the inmate’s right of access is satisfied. Stone v. Morris, 546 F.2d 730, 735 (7th Cir.1976), cited with approval in Brewer v. Taylor, 737 S.W.2d [421,] at 423 [(Tex.App.—Dallas 1987, no writ)]”].