Trial by Skype: Video Conferencing of Criminal Trials in New York

May 20, 2020

By Jill K. Sanders, Esq.

When the COVID-19 (coronavirus) pandemic hit New York, the courts in our state closed for several weeks. Since then, many court appearances and conferences have been happening via video conferencing.

Some are predicting a second wave of the virus to hit in the fall. Others are estimating a vaccine won’t be available until sometime in 2021. If the pandemic continues, will courts be doing more via video conference? And will this include criminal jury trials?


Civil and Immigration Courts Use of Video Conferencing

The use of video conferencing has not just come about as a result of the COVID-19 pandemic. Courts have been using the technology as a way to connect with parties who may otherwise be unavailable. Video conferencing could also be a cost-saving measure in some circumstances.

Immigration courts have been using video conference technology for many years. Often times, detainees are held hundreds of miles from immigration courts. As of 2015, nearly one-third of detained immigrants in the United States appeared in deportation hearings via video conferencing. Notably, however, detained immigrants appearing via video conference were found to choose voluntary deportation more often than detainees appearing in person.

Some civil courts in New York have already been using Skype for video conferencing. This includes routine calendar appearances. It also includes some pre-trial hearings as well as arguments on motions. During trials, some witnesses are permitted to testify before a jury via Skype. And in Family Court, the law allows domestic violence victims to appear in some circumstances by video conference for the issuance of an initial Order of Protection.


Video Conferencing in the Criminal Courts

Appearing by video conference has already been happening to some extent in New York criminal courts. This includes arraignments for hospitalized defendants. And for some incarcerated defendants, they appear via Skype for certain post-conviction proceedings.

Since the beginning of the COVID-19 pandemic, the court system has tried to address how to have additional appearances via Skype. Now, routine calendar calls and pre-trial conferences are regularly occurring by video conference. Arraignments and bail hearings are also being conducted. Often times, defendants are excused from appearing. This poses an issue for incarcerated defendants, however. Jails are struggling with limited resources and staff. For example, in one county jail in the Hudson Valley, only one inmate can appear via video conference at a time.

“If, for any reason, the court determines on its own motion or on the motion of any party that the conduct of an electronic appearance may impair the legal rights of the defendant, it shall not permit the electronic appearance to proceed.” CPL § 180.20(2).

There is precedent for witnesses at criminal trials to appear via video conference. However, this is in limited circumstances – usually when the witness would otherwise be unavailable. It also happens in certain sex offense prosecutions where a child is determined by a judge to be a vulnerable witness. And in these cases, the judge, attorneys, defendant, and jury are still physically present in a courtroom.

For now, criminal courts in New York cannot lawfully conduct certain proceedings via video conference. Criminal Procedure Law Article 182 prohibits felony pleas via video conference. Even misdemeanor pleas are limited based on the proposed sentence. And hearings and trials are expressly prohibited by this statute. Thus, until the law is revised or temporarily suspended or amended, criminal trials won’t be happening via video conference.


Constitutional Issues

If Skype trials become permissible in New York, there are certain constitutional rights of the criminal defendant which must be protected. One constitutional protection may point to the likelihood of video conference trials – the right to a speedy trial. Particularly affected are those who are held in pre-trial detention. A defendant cannot be held forever awaiting trial.

Yet several other constitutional protections mitigate against having trials by video conferencing. Paramount is the right to due process. Due process refers to fairness and observing applicable laws and constitutional protections. For example, the defendant’s right to be present at trial may be affected. While a defendant can waive this right, and a judge may limit presence for good cause, in general a defendant’s presence is constitutionally protected. Poor technology and internet connection – especially for defendants in jail – may limit the defendant’s ability to observe the proceedings.

Further impacted is a defendant’s right to counsel. If a defendant and his/her attorney are not together, how can a defendant effectively communicate with his/her representative? Often a defendant is an important tool in an attorney’s arsenal. And a defendant has a right to confront the witnesses and the evidence. This and the right to counsel go hand-in-hand and could be impacted by video conference trials.

Another constitutional right impacted is the right to a public trial. By preserving this right, defendants are protected from secret proceedings that might encourage abuse of the justice system. Further, the public is kept informed about how the criminal justice system works. A possible solution is live-streaming the trial on a publicly-available website.