Talking Heads — Virtual Reality and the Presence of Defendants in Court
W ith the advent of the Internet and other electronic marvels, the courts have recognized an inevitability of the penetration of the electronic revolution into the way they do business. Indeed, the Florida Supreme Court has cautiously welcomed it,1 and now has video cameras throughout its building. Briefs filed with that court are promptly put on the Internet, as are its opinions. One can even watch oral arguments in that court from the comfort of one’s office, home, or beach house.
This excited acceptance of the electronic potential promised by the Internet is in stark contrast to the historical skepticism courts have had about television cameras in the courtroom. Until 1981, the U.S. Supreme Court had an aversion to their intrusion into judicial proceedings.2 That changed with Chandler v. Florida, 449 U.S. 101 (1981), and the nation’s high court left the decision to admitting the media and its associated technology largely to the states to control.
If the television camera has gained only recent acceptance in the courts, the same cannot be said for the presence of defendants charged with crimes. For three quarters of a millennium they have had a fundamental—and in the United States for more than two centuries, a constitutional—right to be present at their trials and other critical stages of the proceedings that were created to determine if the state could deprive them of life or liberty.3 The intrusion of the Internet and the television camera into the courtroom has brought with it the emerging idea that a defendant’s “virtual” presence can be the same as his actual, physical presence in court. If, as a matter of policy, cameras are now in the courtroom, does the defendant need to be there also? Nationally, the results have been mixed.4 In Florida, though the Supreme Court has embraced the marvels of the electronic age, it has developed a strong skepticism that defendants need only appear on a television screen.
The issue of physical versus virtual appearance most recently surfaced in the context of the petition of several juvenile court judges who sought to change Fla. R. Juv. P. 8.100 to provide for only a television appearance of juveniles at their detention hearings.5 The court refused to change the rule then, but it specifically authorized various circuits “to institute a one year pilot program that will allow juveniles to attend detention hearings via audio/video device[s].”6 Three years later, a bare majority of the court allowed, on an interim basis, the audiovisual presence of the defendant at the detention hearings.7
Significantly, in the 1999 opinion the court was badly split on the wisdom of allowing child defendants to appear at detention hearings via television. For the majority, judicial efficiency and the “best interests of the child” justified substituting video presence for actual presence. The dissenters, led by Justice Lewis, were clearly troubled with fulfilling George Orwell’s prophecies.8
the time the court reexamined the issue a year later, Justice Overton had retired and Justice Quince had joined the court and a new majority. Justice Lewis, now writing for the court, rejected changing the rule.9
Specifically, many observed that there was no proper opportunity for meaningful, private communications between the child and the parents or guardians, between the parents or guardians and the public defender at the detention center and a public defender in the courtroom.. . . Moreover, perhaps because it was difficult for the children to see, hear, and understand what was taking place, the youth did not behave as those participating in person in a courtroom; that is, the hearings totally lacked the dignity, decorum, and respect one would anticipate in a personal appearance before the court.
As to this last point, one trial judge particularly noted that “most juveniles at video first appearance hearings appear almost like zombies. Conversation between a parent and a teenager under normal conditions where there is conflict is difficult. Conversations via a video screen with a juvenile who is in detention is extremely difficult and problematic.”10
While the opinions on amending the juvenile rules have obvious, special resonance to the particular needs of juveniles, they have wider application than those proceedings. As such, constitutional issues that never surfaced in the juvenile rule opinions will have to be considered and accommodated if further efforts are made to bring the defendant to court only through a monitor.
Of course, in different contexts, courts have dealt with the issue of the defendants’ and witnesses’ presence at trial. Although those charged with crimes have a constitutional right to be present at their trial, it is not absolute. If they disrupt the proceedings, the court can exclude them. Similarly, the wheels of justice will continue to turn if they choose to go to the beach instead of attending their trial.11 If witnesses cannot attend a trial, or they are children who might be emotionally damaged by attending, procedures exist that will allow them to testify, and do so electronically if necessary.12
When virtual presence has been considered in the context of a criminal proceeding, four legal problems have emerged: 1) Except in a few limited instances, there is no authority for defendants to appear via television; 2) their Sixth Amendment right to confront their accusers may be compromised; 3) their Sixth Amendment right to effective assistance of counsel may also be shorted; 4) the due process rights guaranteed under the state and federal constitutions may be compromised. Additionally, practical problems present difficulties that suggest the virtual world has a considerable way to go before it replaces a system that has worked for centuries.
Authority to Implement Change
With two exceptions, the Florida Rules of Criminal Procedure make no provision for defendants to appear at hearings or trial via television. That is important because in the instances in which defendants are present by television, i.e., first appearances (Rule 3.130(a)) and arraignment (Rule 3.160(a)), the rules of procedure specifically authorize use of audiovisual equipment.13 Thus, when the several juvenile court judges wanted to hold detention hearings—the equivalent of a first appearance—with the child present only by a television appearance, they had to ask the Supreme Court for permission to amend Fla. R. Juv. P. 8.100(a) to permit them to do so. Without specific authorization, no trial court, administrative agency, nor the legislature has the authority to declare that defendants will appear at hearings by television.
Sixth Amendment Right to Confront Witnesses
The right to physically confront witnesses and one’s accusers forms the core of the Sixth Amendment’s confrontation clause. California v. Green, 399 U.S. 149 (1970). “We have never doubted, therefore, that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 1016 (1988). While that right is not absolute, exceptions are to be allowed “only when necessary to further an important policy.”14
In Maryland v. Craig, 497 U.S. 836 (1990), one such important policy emerged: protecting children of sexual abuse from being traumatized by court appearances in which they had to face their alleged assailant. Maryland law permitted the six-year-old alleged victim to testify by one-way television and outside the presence of the defendant if the trial court found that she would suffer serious emotional distress if she had to face Craig, and she could not otherwise communicate in his presence. Even though the Supreme Court approved Maryland’s procedure, it significantly restricted its holding by declaring that generalized rules prohibiting any defendant from confronting a child victim would fail to meet constitutional acceptance. Instead, in every case in which the state sought to limit the physical confrontation of the defendant against his accusers, the court had to make case-specific findings of necessity.15
Hence, in order to limit the defendant’s right to confrontation, the state must establish a specific, particularized need to do so. Per se rules advancing the important considerations of judicial efficiency and cost savings fail to outweigh the defendant’s Sixth Amendment right to physically meet his accusers. Similarly, safety, another significant and legitimate state interest, fails to satisfy Sixth Amendment demands by merely incanting that mantra and without any connection to the needs of a particular case. To overcome constitutional restrictions, the state must say why physical confrontation is unnecessary in a specific case. Thus, given the Supreme Court’s extreme reluctance to sanction the video presence of juveniles at detention hearings—usually a nonadversarial proceeding—we should expect the court to balk at authorizing the virtual presence of the defendant at more contested hearings.
On the other hand, it may have less reluctance to do so in post-conviction proceedings. The right to physically confront accusers and witnesses has its strongest justification at the trial level, but the Sixth Amendment provision also applies to matters such as probation and parole revocations.16 While applicable, other concerns that may have carried little weight at the guilt-innocence phase of litigation emerge as countervailing considerations to the defendant’s right of confrontation once he has been found guilty and sentenced. Finality, for example, has rarely surfaced as a consideration at the trial level, but it becomes a concern in post-conviction matters.17 The question logically arises, therefore, whether it, safety, judicial efficiency, transportation costs, and other matters achieve such significance as to justify having defendants remain in prison and appear at any hearing through a television monitor.
The answer must be no. The issues that arise in motions for post-conviction relief under Fla. R. Crim. P. 3.850 must be different from those raised at trial. This often means that different facts are presented and often different witnesses are called at the Rule 3.850 hearings than at trial. Finality has no compelling force for the issues that arise there. Likewise, safety and judicial efficiency provide scant reasons to physically exclude the defendant from such hearing.
Thus, the confrontation clause applies with full force to post-conviction proceedings because difficult problems arise in proving that in every case a defendant’s right to confront witnesses has less importance than safety and judicial economy.
The Assistance of Counsel
The Sixth Amendment has also recognized not only a fundamental right to the assistance at trial and on appeal,18 but also the effective assistance of counsel.19 If a defendant has such a right, does the defendant’s physical absence from the courtroom mean his lawyer is ineffective? Under the tough standard established in Strickland v. Washington, 466 U.S. 668 (1984), simple inconveniences, at least in the abstract, would probably be insufficient to justify finding the defense lawyer ineffective. The situation, however, is so novel that no Florida court has considered whether a defendant’s “virtual” presence is equivalent to his actual physical appearance, as it has for confrontation clause cases.
Of course, significant, practical problems exist that would have a crucial bearing on the effectiveness of counsel. How can an attorney and his “virtual” client have a frank conversation during a hearing or in the middle of trial? How can a defendant aid in his defense when he is not really there, and has no appreciation for the courtroom atmosphere that is as real as it is elusive? Rather than an orderly, dignified, and formal hearing we would have the bizarre spectacle of a lawyer pressing his ear to the monitor asking the defendant to speak softer. This is more “Saturday Night Live” than law.20 Yet, it is this comical aspect that courts in this state and in other jurisdictions repeatedly use in rejecting the virtual presence of the defendants as equivalent to their actual presence.
A courtroom is more than a location with seats for a judge, jury, witnesses, defendant, prosecutor, defense counsel and public observers; the setting that the courtroom provides is itself an important element in the constitutional conception of trial, contributing a dignity essential to the “integrity of the trial” process.21
In a televised appearance, crucial aspects of a defendant’s physical presence may be lost or misinterpreted, such as the participants’ demeanor, facial expressions and vocal inflections, the ability for immediate and unmediated contact with counsel, and the solemnity of a court proceeding.22
Consequently, a client’s confidence in his lawyer may be reduced, and the crucial, necessary trust between the lawyer and the defendant minimized. Much like the physical presence rationale in the confrontation clause arena, there is some inexpressible difference between face-to-face discussions with a client and staring at the image on a TV monitor. In the latter situation, a defendant may believe his lawyer is merely processing his case without any real connection with him. Such perception, whether accurate or not, is real, and only weakens a relationship that is often fraught with suspicion and mistrust. When this arises, particularly in capital cases, the state must present some extraordinarily compelling reasons to justify abridging the defendant’s right to be physically present.
Significantly, the 2000 opinion on amending the juvenile rules voiced many of the practical concerns of this judicial virtual reality:
Specifically, many observed that there was no proper opportunity for meaningful, private communications between the child and the parents or guardians, between the parents or guardians and the public defender at the detention center and a public defender in the courtroom. The mechanical process produced a proceeding where, on many occasions, multiple parties would speak at one, adding to the confusion. At the conclusion of far too many hearings, the child had no comprehension as to what had occurred and was forced to ask the public defender whether he or she was being released or detained. It was also problematic that the public defender at the detention center had no access to the child’s court file, and there was absolutely no opportunity to approach the bench to discuss private matters or anything that should not have been openly broadcast. Moreover, perhaps it was difficult for the child to see, hear, and understand what was taking place, the youth did not behave as those participating in person in a courtroom; that is the hearings totally lacked the dignity, decorum, and respect that one would anticipate in a personal appearance before the court.
Hence, the many difficulties defense counsel faces in representing a virtual client may become so great that he or she becomes ineffective.
Due Process Considerations
Accordingly, when questions arise about the defendant’s presence in court, the Florida Supreme Court has imposed significant limits to the discretion it normally gives trial courts in resolving issues that come before them.23 Further restricting this freedom, it has recognized that death cases deserve special consideration, and it has limited trial judges’ discretion to exclude the physical presence of defendants from post-conviction hearings.
Opinions from the district courts of appeal in noncapital cases have reflected this preference for the physical presence of the defendant at post-conviction hearings. They have consistently held that when the post-conviction proceeding involves evidentiary issues, the defendant has at least a due process right to be present.24
Thus, Florida appellate courts at all levels have curtailed trial courts’ freedom to exclude defendants from post-conviction hearings. Indeed, in Scott v. State, 717 So. 2d 908, 912 (Fla. 1998), the Supreme Court summarized this consistent history by recognizing the limited discretion of the courts’ rulings: “This discretion, as always, must be exercised with the due process rights of the prisoner in mind.”
Due process requires the physical presence of the defendant when factual issues are involved that require an evidentiary hearing.25 Conversely, the defendant has no constitutional right to physically attend hearings in which he could make no meaningful contribution.
Practical Problems of Virtual Reality
Beyond the legal and constitutional issues discussed, practical problems will arise that may limit some constitutional guarantees. If the defendant appears in court only through a monitor, the ability for him and his lawyer to consult, particularly during typically fast paced hearings, would be compromised. Further complicating matters, lighting in the booths at the jail may be so poor and the acoustics so bad that counsel sees only a silhouette of his client who must repeatedly shout to be understood. If notes are written, counsel or the defendant must hold them up to the camera at the correct distance for it to focus on them. It is also difficult for a confidential discussion of documents, exhibits, photographs, and other evidence that are introduced in typical criminal proceedings.
Indeed, the 2000 opinion on amending the juvenile rules succinctly summarized the problem by recognizing “there was no proper opportunity for meaningful, private communications” between the defendant and counsel. In short, while the court proceedings follow a pattern established by our founding fathers, the defendant and his counsel are shouting at each other, trying to make sense of what the other is saying or writing. Having the defendant appear in a box destroys the “dignity, decorum, and respect one would anticipate in a personal appearance before the court.” Id.
Conclusion
The Florida Supreme Court has consistently refused to bow to the forces of technological change when they significantly intrude on the vital, constitutional rights of the defendant. Good reasons exist for them to do so. q
1 Harrell v. State, 709 So. 2d 1364, 1372 (Fla. 1998).
2 Shepperd v. Maxwell, 384 U.S. 333; Estes v. Texas, 381 U.S. 532 (1965).
3 Kentucky v. Stincer, 482 U.S. 730, 745 (1987); Snyder v. Massachusetts, 291 U.S. 97, 105-106 (1934). Due process requires a defendant’s presence only “to the extent that a fair and just hearing would be thwarted by his absence.”
4 State v. Peters, 615 N.W. 2d 655, 660 (Wis, Court of Appeals, 2000) (no contest plea and sentencing by television valid); Guinan v. State,769 S.W. 2d 427, 431(Mo. 1989) (post conviction proceeding with everyone but the defendant in the courtroom is valid where he appears on a monitor.); People v. Lindsey, 723 N.E. 2d 841, 845 (Ill. 3d D.C.A. 2000) (arraignment and waiver of right to jury trial can be done with the defendant appearing only via monitor); State v. Phillips, 656 N.E. 2d 643, 663-65 (Ohio 1995) (arraignment); State v. Schneiderhan, 862 P. 2d 37, 39-40 (Mont 1993) (Montana’s rules require the physical presence of the defendant at arraignment); Zenlenski v. State, 359 S.E. 2d 676, 677 (Ga. 1987) (Rule allowing one-year experiment of closed circuit proceedings to not explicitly cover guilty plea, so the physical presence of the defendant was required); Valenzuela-Gonzalez v. U.S. District Court, 915 F. 2d 1276, 1281 (9th Cir 1990) (Arraignment by closed circuit television violated Federal Rules of Criminal Procedure Rules 10 and 43).
5 There is also legislative interest in having defendants appear electronically in post-conviction proceedings, typically brought under Fla. R. Crim. P 3.850.
6 Amendment to Fla. Rule of J. Pro. 8.100(a), 667 So. 2d 195 (Fla. 1996).
7 Amendment to Florida Rule of Juvenile Procedure 8.100(a), 753 So. 2d 541 (Fla. 1999).
8 Id. at 546.
9 Amendment to Florida Rule of Juvenile Procedure 8.100(a), 25 Fla. L. Weekly S 516 (Fla. July 6, 2000).
10 Id.
11 Illinois v. Allen, 397 U.S. 337 (1970)(right to be present may be lost by conduct.) Taylor v. United States, 414 U.S. 17 (1973); Crosby v. United States, 506 U.S. 255 (1993) (voluntary absence.)
12 Harrell v. State, 709 So. 2d 1364 (Fla. 1998) (Defendant in South America testified by a satellite hookup); Glendenning v. State, 536 So. 2d 212 (Fla. 1988) (child victim/witness testified by closed circuit television); See also Fla. Stat. §90.803(23) (1999).
13 The Florida Bar Re: Amendment to Rules—Criminal Procedure, 462 So. 2d 386 (Fla. 1985); In re rule 3.160(a), Florida Rules of Criminal Procedure, 528 So. 2d 1179 (Fla. 1988).
14 Coy, 487 U.S. at 1021.
15 Craig, 497 U.S. at 857–58.
16 Gagnon v. Scarpelli, 411 U.S. 778 (1973); Morrisey v. Brewer, 408 U.S. 471 (1972).
17 Teague v. Lane, 489 U.S. 288 (1989).
18 Gideon v. Wainwright, 372 U.S. 335 (1963); Douglas v. California, 372 U.S. 353 (1963).
19 The issue is more difficult for post-conviction proceedings because the U. S. Supreme Court has said defendants have no right to a lawyer in post-conviction matters. Murray v. Giarratano, 492 U.S. 1 (1989). That also means they have no right to an effective lawyer should they one to represent them. Lambrix v. State, 698 So. 2d 247 (Fla. 1996). Despite the absence of any constitutional right to counsel, the legislature has provided lawyers for defendants sentenced to death, which means they may have the right ones that pass constitutional muster. Arbelaez v. Butterworth, 738 So. 2d 326 (Fla. 1999)(Anstead, concurring.)
20 Carried to its comical extremes, consider a witness who is also present only by a video hookup. Instead of the drama of accuser facing accused, we would have a monitor sitting on a chair attacking another television set sitting on a table next to defense counsel. Rather, instead of a lawyer, there is a monitor of defense counsel because he is representing the defendant electronically. Also, neither the judge nor the prosecutor have physically appeared but have sent their television sets in their places. The only live person in the courtroom would be the bailiff whose duty would be to read a judicial TV Guide and switch channels when different cases were scheduled.
21 Estes v. Texas, 381 U.S. 532. 561 (1965) (Warren, C.J., concurring) (quoting Craig v. Harney, 331 U.S. 367, 371 (1947).
22 People v. Guttendorf, 723 N.E. 2d 838, 840 (Ill. 3d D.C.A. 2000) (Rejecting the television presence of the defendant at a plea hearing as equivalent to his physical appearance.)
23 Clark v. State, 491 So. 2d 545 (Fla. 1986).
24 Barr v. State, 548 So. 2d 819 (Fla. 2d D.C.A. 1989); Smith v. State, 489 So. 2d 197 (Fla. 1st D.C.A. 1986).
25 Id.
David A. Davis received a B.S. and M.S. in electrical engineering from Michigan Technological University in 1971. He received his J.D. from the University of Florida in 1978, and he is board certified in criminal appellate law. He is an assistant public defender in the Second Judicial Circuit focusing on capital appellate litigation.
