Rule proposal would facilitate greater use of remote technology in certain criminal proceedings
The Board of Governors will consider a proposed rule amendment later this month that would facilitate greater use of remote technology in certain criminal proceedings.
The Criminal Procedure Rules Committee’s proposed amendment would require judges, absent a showing of good cause, to permit the use of remote technology in non-evidentiary hearings that last 30 minutes or less.
Proponents say the current rule gives judges too much discretion to deny the use of remote hearings and has created a “lack of uniformity amongst not just the judicial circuits, but the judges.”
“Additionally, as we see certain circuits and judges fully abandon the use of remote technology, lawyers, defendants, and victims in those jurisdictions are being adversely affected,” Florida Association of Criminal Defense Lawyers President Ernest Chang wrote in a letter to the CPRC in January.
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 communication 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 the rule in July 2022 as part of a sweeping rules petition by its COVID-19 Workgroup.
During oral arguments, FACDL argued the rule didn’t go far enough to facilitate the use of remote technology.
The proposed amendment would state: “A court official must grant a motion to use communication 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.”
The amendment 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).”
The CPRC, which is made up of defense lawyers, prosecutors, and judges, voted 24-8 in January, with one abstention, to approve the proposed amendment.
A staff analysis notes that the proposed amendment would bring Rule 3.116 (c) in line with Rule of General Practice and Judicial Administration 2.530(b)(1).
Chang argued in his letter that 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.
Miami lawyer Jude Faccidomo, immediate past president of FACDL, has been championing the amendment for more than a year.
The proposal has generated a groundswell of support, he said.
“I’ve been a member of voluntary bar organizations and committees of The Florida Bar for the entirety of my 20-year career, and I don’t know if I’ve seen a single issue that has united and mobilized the practitioners as much as remote technology,” he said.