Remote Appearances

08/01/2018
In June 2018, in broad daylight, an inmate shot and killed two sheriff's deputies while they were transporting him from a Kansas City jail to the courthouse across the street for a hearing. That morning the deputies brought two prisoners to a secure parking area behind the building where they intended to enter a van and drive across the street to return the inmates to the county jail. Instead, one of the inmates gained possession of a deputy's gun and shot both of them. The suspect had also been charged in another, unrelated murder. Clearly there’s no way to know if the event could have been prevented, but avoiding such tragedies is among the considerations courts discuss when it comes to remote appearances.
 
Over the past few years, the cost of videoconferencing technology has decreased, and the quality of the technology has improved. Remote court appearances began years ago, and ATI Connect, which has been in the telephony industry for 30 years, has been involved in working with courts for the past two decades. Several years ago they were approached by a customer who wanted more control over telephonic appearances such as volume, concerns with cell phones, and there was little or no benefit to the court. Most of the funds went to the vendor. Upon brainstorming and studying California law, they verified that it was legal for courts to host their own calls and they devised a plan. The solution was VCourt, a virtual court appearance solution.
 
Patrick Bahar of ATI notes that solutions such as VCourt can offer courts the freedom and flexibility of remote appearances. It allows case parties and attorneys to make virtual appearances in court by telephone and allows court staff to manage those appearances on a user-friendly console. A user will simply insert the case number and then select to act as a participant in the case or as an attorney. (Attorneys will need to enter their bar number and firm name.)
 
A drop-down menu will provide a list of all parties involved in the case. The participant is then shown the first event associated with the case, which the participant can select or skip to the next. Once the desired events have been chosen, the participant provides a credit card, and when payment has been accepted, the participant is given a conference number and PIN to enter on the day of court. A participant can opt to have an e-mail sent as a reminder of the appearance.
 
The technology uses WebRTC technology, says Robert Haley, director of marketing Communications Systems Division at Compunetix, Inc., ATI’s new tech solution partner that provides the resources and connections for hosting and managing the audio and video participants, so the court agent (operator) uses current web communication technology, a term he describes as “agnostic” and thus does not require a user to download and install a separate app. The solution is integrated with the court’s website. The dashboard allows the court to see all participants, and the court has ultimate control over the conference. There are no limitations on who can use it.
 
The Burgeoning Possibilities
There are myriad possibilities for remote appearance. The greatest number of appearances, says Fred Lederer, director of the Center for Legal and Court Technology (CLCT), remains first appearances. Bahar notes that they are also seeing an increase in traffic courts. The trend began with attorneys having multiple cases and, as a result, they were not as effective for their clients. An attorney’s travel and expense also added to clients’ bills. Both Lederer and Haley note the rise in remote interpretation. One test trial conducted by CLCT had the first four witnesses testify in Mandarin. In another test trial, CLCT experimented with the world’s first remote juror. In the United Kingdom there was a case in which the judge presided from a hospital. In King County, Wash., the first appearance for mental health commitments can be done remotely, wherein the person can appear from the hospital. In fact, when asked what clients have been asking for, Bahar says that often clients are looking for further applications and asking what else it be used for. One court in California, says Haley, has been using a remote judge. As he points out, some counties in California are huge. A court might have a very small caseload, and they don’t have access to the resources they need. The technology can allow courts to leverage scarce resources such as judges. Says Lederer, “Remote anything is possible.”

Gabe Schmitz, regional sales manager for JAVS notes, “Most courts still ask for the traditional hardware codecs as they are proven, provide HD quality, and easy to use. In addition, courts are also adding the software codecs as an option to expand their video conferencing capabilities. Courts are more open to looking at software-based options for video conferencing.”

Schmitz also says that most clients have been moving toward soft codecs and away from the traditional hardware video conference codecs. “JAVS is able to integrate those soft codecs directly into the JAVS AV processor just as we did all the years prior with the hardware codecs. Soft codecs allow for more flexibility and do not require hardware codecs on each endpoint. Clients are able to choose from multiple soft codecs such as Skype, GoToMeeting, or any other software based video conference program.”
 
Legal concerns over remote appearances have been somewhat minimal, but they have been raised. For example, the Sixth Amendment states that defendants have the right “to be confronted with the witnesses against him.” As Lederer points out, Ben Franklin knew enough to fly a kite in a storm, but he could not have predicted remote appearances. Back then, the concept was to protect a defendant from hearsay, and so far no court has really challenged the use if the testimony is conducted in life size and the audio-visual components are equivalent to physical presence.
 
There are other concerns, though. For example, in one case, a Florida defendant had two witnesses testifying against him from Argentina. What if the witnesses had perjured themselves? The court had to consider if there was a treaty between the two nations, whose laws were being broken, whether the foreign nation would pursue justice, and whether extradition was an option. There is also the issue, as Lederer wrote in his white paper The Legality and Practicality of Remote Witness Testimony, “that appears to be beyond our ability to adequately ascertain is…whether remote testimony is more likely to yield intentionally false testimony.”
 
There is the consideration of vetting and impersonation. In 2013, at Nelson Mandela’s memorial service in Johannesburg, a man named Thamsanqa Jantjie provided sign language interpretation (on-site, not remotely). The event was attended by more than 90 heads of state and watched by millions, and later it was discovered that Jantjie was simply "making childish hand gestures" for hours. The revelation was embarrassing, but it also raised questions about security at the event. (Since the Mandela memorial, Jantjie has been barred from interpreting and has taken up acting.)
 
Interpreters have to be certified and verify who they are, and in most cases they will float between courtrooms, and this may or may not tie into other technology. There is also a concern of the situation of having a family member or someone else sit in for them. Other considerations might arise on the IT side. Says Bahar, IT might have to consider if the solution is secure. Does it strain the network? They will need to question what their involvement will be and what will be up to the vendor. Says Schmitz, “When deciding to integrate video conference technologies, courts need to consider multiple questions. Bandwidth and quality, user capabilities, responsibilities and equipment on both ends, and cost of implementation as well as ongoing licensing cost.” These are potential challenges a court might have to anticipate before allowing remote appearances.
 
It is an evolving solution. Says Bahar, “I think video is still emerging and is not mainstream yet.” Schmitz notes that it is difficult to predict where the technology and remote appearances will end up; however, considering personal security, transportation costs, and other factors, remote appearances can be done easily and inexpensively. “With organizational changes, remote appearances can reduce cost, streamline caseload, and address the transportation and security concerns.” He further notes that “younger generations demand transparency and are entrenched with technology. More specifically, they are using technology to change their communication habits. Millennials and Gen Zers are using imagery and video to communicate much more than previous generations, through visual-based social media channels. This will shape how courts operate in the years to come.”
 
Federal Bankruptcy Court in Montana
The use of remote appearances is widespread but seemingly without much uniformity among the nation’s courts. According to the Federal Judicial Center’s 2017 Remote Participation in Bankruptcy Court Proceedings, the U.S. Bankruptcy Court for the District of Montana uses videoconferencing extensively. They started this when winter weather made traveling hazardous. Within just a few years, the court was routinely using remote appearances for a wide range of issues including uncontested matters, contested matters, and trials in adversary proceedings. The judges report that their experience with videoconferencing has been positive. Attorneys are comfortable with and appreciate its use. It widens their area of practice without additional expense to their clients. The judge may be in the courtroom where the hearing is scheduled or may appear remotely from another court location.
In the end, the decision to allow remote appearances seems to depend on how judges interpret the drawbacks of not having an in-person interaction and the benefits of remote appearance. Those in favor offer that remote participation saves time and money for the court, litigants, and attorneys, and that it allows participation from those in distant venues. Critics contend that a remote proceeding lacks aspects of an onsite courtroom proceeding and reduces the dignity of the judicial process. It is an evolving solution and difficult to gauge the trajectory. As Bahar says of the evolution, “I think video is still emerging,” and as Lederer wrote in his paper, eventually the question may be whether physical presence is really necessary at all. CT

By Michael Grohs, Contributing Editor
 

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