Videoconferencing:
A Juvenile Defense Attorney's Perspective

By William M. Binder

You enter the courtroom, sit, adjust your file and gaze up at your client across the table - 200 miles away - on the television screen. Welcome to the world of high-tech representation in the criminal courts.

Videoconferencing is used in Milwaukee Children's Court and Municipal Court. The Municipal Court's initial appearances are held by video: The in-custody defendant stands before a screen, is viewed by the court and the audience, but sees only the judge. The judge questions the defendant, pleas are entered and bail is set.

My experience with videoconferencing involved a waiver of a juvenile extension hearing. I spoke to my client by telephone the day before the hearing. Now we were on the record, waiving the hearing by videoconference. I was in Milwaukee; he was at Lincoln Hills.

Prior to the videoconference, the judge and I set some ground rules in anticipation of several possible problems. We agreed that if I needed to discuss any point with my client before or during the hearing, everyone in the courtroom and with my client would have to leave. The court also deemed confidential any "private" discussions my client and I had, and the discussions could not be used in any way by any party or agency since the security of the transmission was in question.

Due to the delays in transmission, during the hearing it was essential for all parties to speak slowly and clearly into the microphones. Any fast movement blurred and froze the screen for two to four seconds, then the picture would return live to whatever was happening. My client also had no access to the paperwork we had in the courtroom, and there was no way that he could examine the forms used in the hearing. The court had to read the documents to him.

Despite some minor procedural and technical flaws, the hearing was cost- and time-efficient. My client understood what was happening, seemed comfortable with the experience and was impressed with the fact he was on "TV." However, the hearing could have been a disaster had I not prepared him the day before.

The need to maintain attorney-client confidentiality renders videoconferences cumbersome and impractical if the courtroom must be cleared for every question. A possible solution is to keep a telephone with an open line next to both the defendant and counsel so that questions can be discussed while on the record. Keeping a line open, solely for attorney-client discussions, coupled with an order making those conversations confidential, could eliminate the problem.

Initial appearances, bail hearings and status conferences in criminal cases could be held easily by video. However, problems will arise if evidentiary hearings are held via video. The defendant will not see demonstrative evidence, diagrams or documents discussed in the courtroom out of sight of the video camera. It is cumbersome if the client asks questions over a phone, or worse, tries to get your attention over a video screen to tell you about a point raised under direct or cross-examination, within everyone's hearing. A defendant's ability to properly assist counsel, answer and ask questions, write notes or examine documents will be impossible if that client is not in the courtroom.

The problems of allowing anyone to testify by video out of full sight of the attorneys and fact finders is best illustrated by this hypothetical question: If Captain Queeg, played by Humphrey Bogart in The Caine Mutiny, was seen on video only from the chest up, and the jury and attorneys could not see him rolling the metal balls in his hand, would the verdict be different?

William M. Binder, Marquette 1989, is a sole practitioner in Milwaukee.