Videoconferencing
in Criminal Proceedings
A
Juvenile Defense Attorney's Perspective
Lights, Camera, Action: Videoconference Trial
Testimony
By Stuart G. Mondschein
With the computer and video industries expanding - and the prices for
hardware and services declining - more attorneys may incorporate these
technologies into their trial work. Technology previously afforded only
by large firms now is accessible to smaller firms.
Firsthand experience with
videoconferencing yields insights into the technology's advantages,
including testimony of distant witnesses, courtroom safety and cost
efficiency when used in the right situations. |
While videotape has long offered the chance to present witnesses at
trial who are unable to appear in court,1
videotape has distinct disadvantages. Often, the proponent of the
testimony must reveal his or her trial strategy weeks in advance of the
trial. In addition, objections can be cumbersome on videotape. For
example, when objections are raised before trial, and the videotape is
edited, the end product often is choppy. If objections are raised at
trial, the interruptions can annoy the jury. In addition, the lack of
interaction between attorneys and witnesses in the courtroom can make
the videotaped testimony dull. Still, cost and expert witnesses'
availability often force attorneys to present videotaped testimony.
Today, because of the lower cost of technology, there is a
viable alternative to videotaped testimony. Two-way videoconferencing is
a practical way to present live courtroom testimony of witnesses from
remote locations. Although videoconferencing is not cheap, and in some
cases may not be less expensive than bringing an expert across country
or travelling to a video deposition, it still has its advantages.
Videoconferencing presents an expert the opportunity to testify without
leaving home, making it possible to use experts who otherwise are
unwilling to testify. This live testimony holds the jury's attention.
While videoconferencing has been used for depositions, it is only
recently that the costs of portable equipment have come down enough to
be considered for live courtroom testimony in civil cases.
Videoconferencing in Wisconsin's Judicial System
Over the last few years, several counties have introduced live video
testimony capabilities for limited purposes, primarily in juvenile and
criminal proceedings. Video allows counties to address safety concerns
and save money by limiting the need to move participants to the
courtroom from jails or juvenile facilities for appearances. In
Milwaukee County videoconferencing provides two-way appearance links
between the Children's Court Center and the juvenile facilities at
Lincoln Hills and Wales. In the Milwaukee County Criminal Justice
Facility, closed circuit television capability exists between the jail
and the preliminary hearing court, the intake court and the high
security courtroom.
Several other counties now have or are planning similar capabilities.
In Wood County there is a videoconference link between the courthouse
and a local mental health facility. In Dodge County videoconference
links are planned between the courthouse and state corrections
facilities to ease safety and transportation problems. In Green County,
a single-judge county, Judge W.M. McMonigal actively promotes the
development of courtroom video technology. Green County has installed
video arraignment capabilities and a video presentation system
compatible with live videoconferencing.
For many single-judge counties, the prospect of intercourt live
video-conferencing has great potential given that judges regularly
travel long distances to other counties, often for short hearings and
proceedings. According to John Voelker, a senior policy analyst with the
Director of State Courts, the Wisconsin Supreme Court is exploring the
possibility of a pilot project to set up one county with full-scale
video-conferencing to develop statewide guidelines. Despite increasing
interest, according to Voelker fewer than 10 county court systems use
jail-to-courtroom links, and none have full-time courtroom
videoconferencing capabilities to outside remote locations for civil
testimony.
Videoconferencing in Civil Cases
While most of the activity has been in the criminal and juvenile
areas, video-conferencing also may be used in civil cases. Section
807.13(2) of the Wisconsin Statutes provides that in civil actions a
court may admit oral testimony through live audiovisual means subject to
cross-examination when the applicable statutes or rules permit, 2 when the parties so stipulate 3 or the proponent shows good cause to the court.
4 In granting permission the court may
consider:
- whether any undue surprise or prejudice would result; 5
- whether the proponent is unable to procure the physical presence of
the witness; 6
- the convenience of the parties and the proposed witness, and the
cost of producing the witness in relation to the importance of the
offered testimony; 7
- whether the procedure would allow effective cross-examination
including the use of documents; 8
- the importance of presenting the testimony of witnesses in open
court to allow the observation of the witness's demeanor; 9 and
- whether the quality of the communication is sufficient to understand
the testimony. 10
There also is a "catch all" category of considerations that the court
may use to grant permission, 11 and the
statute allows the court great flexibility in deciding whether to allow
videoconference testimony where a stipulation is not made.
Section 807.13(4) guides the reporting of telephonic conferences.
Although by its terms this section is not specifically applicable to
live audiovisual presentations, it provides some guidance for presenting
videoconference testimony. For example, it requires that the court
reporter be in simultaneous communication with all parties whether in
the physical presence of any of them 12
and, with the exception of scheduling conferences and pretrial
conferences, that proceedings be conducted so as to allow for public
access.13
Equipment in the Courtroom
In what appears to be a Dane County Circuit Court first, a pediatric
infectious disease expert from California testified recently in a
medical negligence case via a two-way videoconference hookup. Based on
jury feedback, the results were effective. From a technology
perspective, the arrangements were relatively easy.
The first step in presenting videoconference testimony in the medical
negligence case noted above was to install integrated services digital
network (ISDN) telephone lines 14 in
the Dane County Courthouse through the local telephone
provider. These lines can handle more information than conventional
telephone lines. To present a reasonable quality image, three ISDN lines
probably are required. In this case, the local telephone company
installed the ISDN lines to the telephone switching room at the Dane
County Courthouse and required a minimum one-month rental for them.
With three ISDN lines, picture quality was good but not as clear as a
videotape's. There was sufficient image detail so the jury could see
witnesses blink, swallow hard or roll their eyes. While there was a
slight delay between the question and response, it was not
distracting.
Once installed, the court administrator arranged to run wires from
the switching room to the assigned courtroom. These remained in place
for future use following the trial. The cost of the wire itself was
nominal. Pulling the wires to the courtroom in most buildings is
relatively uncomplicated and inexpensive: most buildings have chases or
drop ceilings through which to route the wires. Some courthouses already
may contain the necessary wiring from the telephone switching room to a
courtroom. In courthouses where internal wiring is difficult, it still
is a relatively simple matter to bring the necessary wires through the
hallways or into a window temporarily.
In the Dane County case, once the wires reached the courtroom, a
contract videoconferencing company assumed the process. The wires were
connected to a portable videoconferencing unit that consisted of a
conventional large-screen television, a small well-camouflaged camera on
top of the television and a videoconferencing unit that looked like a
conventional VCR. The equipment was unobtrusive and easily fit on a
standard rolling television cart.
The camera was focused on the place where the questioning attorney
would stand. The television screen was arranged to face the jury.
Additional monitors can be arranged for the judge and other counsel. If
only one screen is used, the participants must move so that all
participants can see it.
The Remote Location
A videoconferencing facility is required near the witness's location.
Most universities and many hospitals already have videoconferencing
centers. There also are commercial videoconferencing service facilities.
In this case, the witness was a physician associated with a hospital
that had its own videoconferencing center.
Videoconferencing centers are conference rooms prewired with cameras
and transmitting equipment. Because of the difficulty in precisely
timing the testimony of witnesses during a trial, consider reserving a
large block of time; only the time that is used probably will be
billed.
At the appointed hour, a telephone connection is made between the
courtroom and the remote videoconferencing facility using the ISDN
lines. The courtroom television then shows the witness and the witness
sees the courtroom. Conventional microphones wired through the
videoconference equipment and the television speakers bring sound to
both locations. Although not used in the Dane County case, "kill
switches" are available for the judge to resolve an objection or
interrupt testimony. A special document camera can display documents
between the locations, although it is best to provide witnesses
duplicates of any documents that might be needed in court. Prenumbering
document pages keeps all participants "on the same page."
Cost
The total expense for presenting an afternoon of trial testimony
including one month of ISDN service from the phone company, a two-week
rental of the video equipment, installation of courthouse wiring and
rental of remote videoconference center time was approximately $2,200.
This arrangement and expense allowed for the presentation of additional
video testimony at any point during the trial.
The Advantage of Live Videoconferencing
While it usually is best to present a witness in court, jurors are
accustomed to watching television and easily focus their attention on
the screen. The videoconference presentation maintains more jury
interest than videotape due to attorney participation in the courtroom.
The proponent attorney can tailor questions to the actual trial
testimony presented before the videoconference witness's testimony
rather than present a tape that may in some significant respect no
longer fit the facts of the case. The judge also can deal with
objections without any unusual disruption.
![](/SiteCollectionImages/WisconsinLawyer/1997/07/mont.gif) |
Stuart G. Mondschein, U.W. 1978, is a shareholder in Wheeler, Van
Sickle & Anderson S.C., Madison. He represents both plaintiffs and
defendants in civil litigation, and presented the witness described in
the article on behalf of the plaintiffs. Mondschein thanks Dane County
Court Administrator Gail Richardson, Milwaukee County Court
Administrator Mike Neimon and Steven Hanrahan of VideoConferencing Plus
Inc., Sun Prairie, for their assistance.
|
Videoconferencing, while certainly not cheap, can make sense when
compared to an expert witness's "all-day" charge, travel expenses and
travel time. Medical witnesses in particular, with their hefty hourly
rates and the demands on their time, are good candidates for
videoconferencing testimony. In addition, when a witness is important
and travel is inconvenient, the lawyer can use videoconferencing to
prepare the witness for trial.
Conclusion
While videoconferencing is not a substitute for presenting a good
witness in the courtroom, in the appropriate situation it is a useful
and potentially cost-effective tool for trial. Attorneys should add it
to the options they consider in deciding how distant witnesses and
parties to the proceeding can be presented.
Endnotes
1 See Wis. Stat. §885.40 et
seq.
2 Wis. Stat.
§807.13(2)(a).
3Wis. Stat. §807.13(2)(b).
4 Wis. Stat.
§807.13(2)(c).
5 Wis. Stat.
§807.13(2)(c)(1).
6 Wis. Stat.
§807.13(2)(c)(2).
7 Wis. Stat.
§807.13(2)(c)(3).
8 Wis. Stat.
§807.13(2)(c)(4).
9 Wis. Stat.
§807.13(2)(c)(5).
10 Wis. Stat.
§807.13(2)(c)(6).
11 Wis. Stat.
§807.13(2)(c)(8).
12 Wis. Stat.
§807.13(4).
13 Wis. Stat.
§807.13(4)(d).
14 Each ISDN line in this case
consisted of a pair of two conventional telephone wires so that six
conductors were required for three ISDN lines. ISDN service is available
from Ameritech in about 90 percent of the telephone exchanges in the
state. Besides ISDN, there are other transmission formats available, but
ISDN seems to be the cheapest and most flexible today.
Wisconsin Lawyer