Remote Court Three Years Later
State courts have largely sidestepped state constitutional questions about remote criminal proceedings.
Since the beginning of the Covid-19 pandemic, criminal defendants have been the subject of a national experiment. As schools and businesses moved online to protect people from the virus, court systems also instituted a host of emergency measures to conduct court proceedings remotely. Three years later, significant questions about what this virtual transition means for the state constitutional rights of defendants remain unanswered.
While courts had previously experimented with remote technology in narrow contexts, such as immigration proceedings and bail hearings, the pandemic forced them to embrace virtual proceedings at nearly every juncture of the criminal justice system. Suddenly, the arraignments, detention hearings, suppression hearings, plea hearings, jury selections, sentencings, and witness testimony that once took place inside the four walls of a courtroom were relocated to the four sides of a computer screen or a smartphone.
This seismic shift raised novel constitutional questions about how to reconcile virtual proceedings with a number of constitutional rights — including the right to confront witnesses, the right to the effective assistance of counsel, and rights to due process — that have developed in the context of in-person interactions.
Today, the jurisprudence on the state constitutional rights of remote criminal defendants is still surprisingly thin. State court judges have cited studies suggesting that virtual hearings can lead to harsher punishments and discussed how virtual hearings can impact proceedings, including by altering fact finders’ perceptions of witnesses, impeding attorney-client communications, and hindering empathy for the parties involved in a case. Yet even as many court systems have either institutionalized remote proceedings or are in the process of doing so, they have shied away from developing independent state constitutional principles to address questions raised by these proceedings.
Take state confrontation clause claims, which provide criminal defendants with a right to confront witnesses against them. This has been one of the most common bases for challenges to virtual criminal proceedings because remote technology fundamentally alters how that confrontation occurs. Confrontation has also been the constitutional concern most frequently discussed by defense attorneys, prosecutors, and judges in qualitative studies of remote criminal court.
Seventeen states have confrontation clauses with important textual differences from the Sixth Amendment’s confrontation clause, such as the South Dakota Constitution’s guarantee that “the accused have the right . . . to meet the witnesses against him face to face.” Textual differences like these often serve as a point of departure for judges to develop distinctive state constitutional jurisprudence, though state courts can, and often do, independently interpret state constitutional language identical to the analogous federal constitutional provision.
But state courts hearing state confrontation claims have largely sidestepped these questions. Instead, they have typically provided general guidance on best practices to safeguard the rights of criminal defendants when witnesses are heard remotely, without independently interpreting state constitutional provisions. For example, in Commonwealth v. Curran, the Massachusetts Supreme Judicial Court “recognize[d] that a criminal defendant’s constitutional rights may be implicated when critical stages of court proceedings are conducted remotely” but found the defendant was not prejudiced by the virtual format and reiterated previously issued guidance on virtual bench trials in criminal cases.
To the extent that there has been state constitutional development in this space, aligning with federal constitutional law has been the overwhelming norm. For example, in holding that the use of remote video technology for witness testimony during a jury trial did not violate Minnesota’s confrontation clause, the Minnesota Supreme Court held that the federal standard applies.
Similarly, the Missouri Supreme Court held that claims under its state’s confrontation clause should be analyzed using the federal standard, notwithstanding the fact that, unlike the federal confrontation clause, the Missouri Constitution grants defendants the right to meet witnesses “face to face.” The Montana Supreme Court reached the same conclusion about Montana’s confrontation clause, which also contains a “face-to-face” requirement.
Some state judges have urged a more rigorous state-specific approach. For instance, an Ohio appellate judge assessing a state confrontation claim based on remote testimony provided a deep dive into the history of Ohio’s confrontation clause jurisprudence in a concurrence. The judge urged his colleagues to embrace an independent confrontation jurisprudence, asking them, “Are we going to abdicate our constitutional interpretation to Washington, or will we recognize and enforce different language and rights in our own Constitution?” But by and large, such efforts have been the exceptions to the norms of lockstepping and constitutional avoidance.
Meanwhile, many federal constitutional questions also remain unanswered. For instance, two defendants convicted of bank fraud in a trial featuring a remote witness have asked the U.S. Supreme Court to address whether remote witness testimony violates the Sixth Amendment. Notably, the Supreme Court has not dealt with virtual confrontation rights since 1990.
Early in the pandemic, a more cautious approach to state constitutional development in this space may have been prudent, as the extent and duration of the emergency were unknown, courts lacked sufficient data on remote proceedings to fashion new constitutional rules with confidence, and court rules were changing rapidly. Three years on, however, state courts should address how the state constitutional rights of criminal defendants fare in a virtual world.
Michael Milov-Cordoba is a counsel in the Brennan Center’s Judiciary Program.
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