Proposed rule to expand the use of remote appearances for routine criminal matters is on its way to the court
The Board of Governors has voted in favor of expanding the use of “communications technology” for routine criminal matters.
At a May 12 meeting in Naples, the board voted 34-10 to recommend acceptance of a Criminal Procedure Rules Committee proposed amendment to Rule 3.116.
The amendment would require a judge to permit parties to appear remotely in non-evidentiary hearings that last 30 minutes or less, absent a showing of good cause.
It goes next to the Supreme Court for a final determination.
The Florida Association of Criminal Defense Attorneys has championed the proposal for more than a year.
Rule 3.116(c) currently states, in part, that “a judge may, upon the court’s own motion or upon the written request of a party, direct that communication technology be used by one or more parties for attendance at a pretrial conference, except that, before a judge may direct that the defendant participate in the pretrial conference using communications technology, the defendant or the defendant’s counsel must waive the defendant’s physical attendance at the pretrial conference pursuant to rules 3.180(a)(3) and 3.220(o)(1).”
The Supreme Court adopted it in July as part of a sweeping rules petition by its COVID-19 Workgroup.
The proposed amendment states: “A court official must grant a motion to use communications technology for a non-evidentiary proceeding scheduled for 30 minutes or less unless the court official determines that good cause exists to deny the motion.”
It continues, “The defendant or the defendant’s counsel must waive the defendant’s physical attendance at the pretrial conference pursuant to rule 3.180(a)(3) and 3.220(o)(1).”
FACDL argues the current rule has created a lack of uniformity between and even within circuits.
“Additionally, as we see certain circuits and judges fully abandon the use of remote technology, lawyers, defendants, and victims in those jurisdictions being adversely affected,” FACDL President Ernest Chang wrote in a letter earlier this year to the Criminal Procedure Rules Committee.
A Bar staff analysis notes the proposed amendment would bring Rule 3.116 in line with Rule of General Practice and Judicial Procedure 2.530(b)(1).
Chang’s letter argues the disparity between the two rules “results in criminal and civil lawyers and similarly situated defendants” being treated differently.
“Non-evidentiary ministerial hearings do not trigger any constitutional considerations, as such, it defies logic as to why civil practitioners should enjoy the convenience of remote proceedings when criminal practitioners are required to make in court appearances for non-essential and brief matters,” Chang wrote.
The Criminal Procedure Rules Committee voted 24-8, with one abstention, to approve the proposed amendment earlier this year. The committee is made up of defense attorneys, prosecutors, and judges.
But a few weeks before the board meeting, the Florida Conference of Circuit Judges submitted a letter to President Gary Lesser warning that its executive committee unanimously opposes the proposal.
Twentieth Circuit Judge Nicholas Thompson, the conference chair, acknowledged in the letter that remote technology can be beneficial in “some aspects of the criminal courts.”
But he warned that in a large state, “a one size fits all rule” is “neither wise nor feasible.”
The letter cites a litany of concerns, including that the proposed amendment lacks an exemption for “final pretrial, calendar call or docket sounding immediately preceding trial.”
“The vast majority of cases set for trial resolve at the final court date prior to jury selection,” the letter notes. “The in-person attendance of the parties is critical to encouraging resolution of cases so as to avoid crowded courtrooms and juror wait times on jury selection days.”
Remote attendance could frustrate law enforcement efforts to serve domestic violence injunctions and it would significantly impact mental health and drug courts that depend on “direct, in person involvement,” the letter warns.
Judges also argued the amendment would be “unworkable” because it would equally apply to prosecutors, public defenders, and unrepresented litigants.
“The proposed rule, therefore, would permit ALL PARTIES the option of waiving their personal appearances; while this may be efficient for non-evidentiary proceedings in civil cases, it is unworkable in many criminal courts throughout this state. The necessity of in person attendance for arraignment dockets of unrepresented litigants in the county criminal courts in particular is especially acute,” the letter notes.
