Are We Done Zooming Yet?

March 22, 2021

At this point in the pandemic, most of us have been attending court via videoconferencing for about a year.  That practice may not end any time soon.  On December 11, 2020, the Director of State Courts, Randy Koschnick, filed Rule Petition 20-09 and supporting memorandum to explore the possibility of continuing Zoom hearings after the pandemic. This change would require statutory and administrative rule changes to allow the continued use of remote hearings.  Various judges and law enforcement officials articulated support for the petition and filed public comments.  Defense attorneys, on the other hand, expressed concern about situations where videoconferencing could infringe upon criminal defendants’ Sixth Amendment right to confront witnesses testifying against them.

The basis of the Rule Petition would be an amendment to Wis. Stat. § 885.60 that would allow the court discretion to weigh various factors in determining whether to “sustain the defendant’s objection related to the use of videoconferencing at a particular proceeding or for a particular witness.”  At this point, it is unclear whether the court can permit a virtual appearance over the objection of the defendant “for a particular witness” or more generally.  It is not clear from the petition as it is drafted, whether it is congruous with the right of confrontation guaranteed by the United States and Wisconsin Constitutions.  The decisions made by the Wisconsin Supreme Court related to the petition will affect what future litigation will look like.

Members of the defense bar articulated these very objections related to the most critical of constitutional protections guaranteed by the United States Constitution, as well as the Wisconsin Constitution. Private practitioners raised similar concerns, as well as concerns related to witnesses being manipulated off-screen.  This is a legitimate concern in light of a Michigan court hearing where a judge had to adjourn a hearing based on discovering the defendant was in the same home as the alleged victim during the hearing. Courts have also had to deal with life events transpiring during video conferenced hearings, including: someone appearing for court from their pool; a cat howling in the background;  someone getting a haircut during a hearing; or appearing for court while driving, just to name a few. These types of incidents will continue to occur and could affect the person accused of a crime if these people happened to be witnesses appearing by videoconferencing.

The public comments from the judiciary indicate their support of the petition because it would allow defense counsel from other parts of the state to take cases they might not otherwise be able to, due to lengthy travel time. Other rural circuit court judges echoed similar opinions.   Law enforcement also favors the proposed change due to the expense associated with transporting in-custody defendants to court.

The debate on continued use of videoconferencing is far from over and likely will not be resolved any time soon.  The Wisconsin Supreme Court will be holding a public hearing on the petition on April 7, 2021, of course, by videoconferencing.