March 17, 2021 – The Wisconsin Supreme Court is considering a petition to update and clarify the use of videoconferencing technology in the court system. While judges and law enforcement support the petition, criminal defense lawyers have raised concerns.

Director of State Courts Randy Koschnick, a former circuit court judge in Jefferson County, filed petition 20-09 on the recommendation of a Zoom Task Force Koschnick’s office convened last year to explore “potential statutory and administrative rule changes to allow for remote hearings to continue after the pandemic.”

Wisconsin’s circuit courts are operating under their own safety plans, with resumption of in-person proceedings, including jury trials, on a county-by-county basis. Zoom proceedings have allowed courts to see what may be possible in the future.

The petition, according to a supporting memo, “sets forth changes recommended by the Task Force to support continued use of videoconferencing technology,” recognizing that videoconferencing can create efficiencies and cost savings within the court system.

“Videoconferencing technology provides court users with greater access to the courts given that users can more easily view and participate in court proceedings from remote locations,” the memo notes.

“Parties, attorneys, the media, and the public encounter fewer challenges that can make coming to court difficult, such as transportation, work schedules, and child care. Appearing remotely may also alleviate some safety concerns of victims.”

Numerous circuit court judges and members of law enforcement have voiced support for the petition. But criminal defense lawyers are concerned that allowing video conferencing in certain situations could infringe on the rights of criminal defendants, including the Sixth Amendment right to confront the witnesses against them.

State Public Defender Kelli Thompson, in correspondence submitted to the court ahead of an April 7 hearing, argued that that “any expansion on the use of videoconferencing technology in critical proceedings must be accompanied with a provision allowing the defendant the unqualified right to demand that the proceeding be held in person.”

Proposed Changes

The petition seeks to change Wis. Stat. section 885, Subchapter III (Use of Videoconferencing in the Circuit Courts). Wis. Stat. section 885.56 establishes the criteria the circuit courts use to determine whether videoconferencing is permitted.

The petition would repeal section 885.56(1)(b), which says video conferencing should be considered if a party “has been unable, after a diligent effort, to procure the physical presence of a witness.”

“The court should be permitted to exercise its discretion to determine whether the presence of a witness is necessary and consider more factors than simply the inability to procure the physical presence witness,” the petition’s supporting memo states.

“For example, the court also may consider travel time and cost when a witness would only need to be present in the courtroom for a very brief period of time. The court may determine that a witness such as this can appear from a remote location using videoconferencing technology, even if the witness has the ability to appear in person.”

If repealed, the judge would still have 10 other factors to consider in determining whether to allow a remote hearing, under section 885.56, and “any other factors that the court may in each individual case determine to be relevant.”

Under section 885.58, circuit courts look to the criteria to permit the use of videoconferencing technology in any pretrial, trial, or post-trial hearing in civil cases.

Circuit courts also apply the criteria for criminal cases, under section 885.60, except that a criminal defendant “is entitled to be physically present in the courtroom at all trials and sentencing or dispositional hearings.” The petition would amend this provision to note that a defendant must affirmatively waive the right to be physically present.

In addition, defendant’s objection to videoconferencing technology must be sustained if the defendant “is entitled to be physically present in the courtroom."

The petition would add a comment to explain that defendants must knowingly, intelligently, and voluntarily waive a right to be physically present, and the judge must engage in a colloquy with the defendant to ensure the right is understood.

Under Wis. Stat. section 971.04, a criminal defendant has a right to be physically present at trial and other pre- and post-trial proceedings, including arraignment.

Under the petition, the defendant’s right to be physically present at the arraignment would be eliminated to promote efficiency, as arraignments typically involve the reading of criminal charges and the defendant’s initial plea of “not guilty.”

The petition creates clear statutory authority for court to be held with the judge and participants appearing from remote locations using videoconferencing technology, and creates authority for moving court hearing locations to alternative sites.

Judges and Law Enforcement Support

The petition addresses other aspects, including amendments to expand the ability of interpreters to perform duties through videoconferencing, and updates to technical requirements for the use of videoconferencing in civil and criminal proceedings.

But support and opposition centers on the balance between a criminal defendant’s rights and the benefits of using – or the option to use – videoconferencing technology moving forward, even after the COVID-19 pandemic is no longer a factor.

Several judges submitted comments in support of the petition, noting how the use of videoconferencing can create efficiencies and bridge the distance in rural counties.

Bayfield County Circuit Court Judge John Anderson said that using Zoom has allowed the court to move cases with nearly the same efficiency as before the pandemic.

“With a little ingenuity and willingness to adapt, I have come to the conclusion that continued use of Zoom and video conferencing post-pandemic, when necessary, is the right thing to do,” Judge Anderson wrote in a letter, supporting the petition.

“The digital and virtual world is changing rapidly and society is adapting in many other arenas to virtual presence and appearances.”

Barron County Circuit Court Judge Maureen Boyle, chief judge of the Tenth Judicial District, wrote in support, noting adoption would have a significant impact on rural counties “struggling with limited resources, including a dearth of local lawyers.”

Barron County Circuit Court Judge James Babler, expressing support, said videoconferencing during COVID “has allowed many attorneys to take cases which they would not have otherwise accepted” because of the travel time required.

Several law enforcement agencies, writing in favor of the petition, said the use of videoconferencing technology moving forward will save police agencies (and counties) both time and money, including the resource it takes to transport inmates to court.

And crime victim advocacy groups voiced support, noting the elimination of barriers associated with attending in person as well as emotional and physical safety concerns.

Opposition from the Criminal Defense Bar

SPD Thompson noted that videoconferencing can be beneficial, but the petition does not do enough to protect the constitutional rights of criminal defendants.

“The value of videoconferencing is in allowing virtual court hearings for ministerial tasks such as scheduling and status conferences,” Thompson wrote. “And while it has been used beyond that for more critical proceedings in the course of the pandemic, this is not a practice which should continue in a post-pandemic world when the defendant objects.”

For instance, Thompson said current statutes require courts to sustain a defendant’s objection to videoconferencing if they have a right to be physically present, and the objection applies when a defendant objects to a remote appearance by a witness.

“The proposed modification invites a court determine that convenience offered to the witnesses and litigants through videoconferencing could outweigh the defendant’s federal and state constitutional rights. This cannot be the case,” Thompson wrote.

Other members of the defense bar raised similar concerns.

Private practitioners from Hurley Burish S.C., in a letter to the court, said many of the proposed changes “are of questionable constitutional validity and will likely spur challenges that will require resolution by this Court and the U.S. Supreme Court.”

Defense attorney Chad Lanning of Lubar & Lanning LLC in Milwaukee said adopting the petition would likely result in post-conviction litigation on “whether witnesses were coached/manipulated off-screen during their videoconference testimony.”

Reported recently, a Michigan judge had to adjourn a Zoom hearing after discovering the accused was in the same home as the victim during the hearing. “This is an issue we didn’t have when we had live court,” the judge noted before adjourning the hearing.

The Wisconsin Supreme Court will hold a public hearing on petition 20-09, via videoconferencing technology, on April 7 at 9:30 a.m.