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.
You can read the full article at the Brennan Center for Justice.