Private Attorney- Client Communications and the Effect of Videoconferencing in the Courtroom

AuthorEric T. Bellone
PositionAssistant Professor of Government and Applied Legal Studies, Suffolk University
Pages24-48
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Assistant Professor of Government and Applied Legal Studies
Suffolk University
ebellone@suffolk.edu
Abstract: Courts are experimenting with new technologies in response to
increasingly crowded dockets. Videoconferencing is being increasingly employed to
streamline legal proceedings and provide the accused greater access to justice. The use o f
videoconferencing has spread through the federal and state court s ystems. While no
criminal trial has been conducted entirel y by videoconferencing, it has been used in
arraignments, bail, sentencing, and post-conviction hearings. The impact of
videoconferencing technology on the legal process, however, has yet to be measured in any
systematic way. Of prime concern is the impact of this technology on the attorney/client
relationship and their private communications. Critics argue the use of videoconferencing
calls into question the ability of attorneys and clie nts to communicate effectively,
undermining effective r epresentation by counsel. In this first of its kind study, this article
examines the i mpact of videoconferencing on private communications and the wider
implications of the impacts of technology on civil liberties. Through a marriage of social
scientific and legal analysis, videoconference private communications are analysed with
empirical data and c onclude with a discussion of how the negative aspects of
videoconferencing can be lessened, avoided, and/or remedied.
1. Introduction
In r ecent years, courts have increasingly turned to videoco nferencing as they struggle to balance large
caseloads a nd limited resources.
1
Although scant data is available on its actual use, it is clearly being
used in courts acro ss the country i n a variety of criminal proceedings, particularly to connect out of court
defendants with their attorney in the courtroom.
2
The impact of videoconferencing on private
communications between attorneys and clients has yet to b e systematically studied. The essential
question is does videoconferencing dilute constitutional guarantees to legal counsel or by limiting
communication between defines attorney and client?
A trusting and thorough communication, both d irect and nuanced, between attorney and client must
be established and maintained in order for justice to b e served.
3
It is i mportant to examine the expansion
B.S., University of Massachusetts at Lowell, 1985; B.A., University of Massachusetts at Lowell, 1987; J.D.
University of New Hampshire Law School (Franklin Pierce Law Center) 1991; Northeastern University, Doctoral
Candidate, Law and Public Policy, 2010. The author would like to thank Heather Monahan and Thomas Koenig.
1
Aaron Haas, Videoconferencing in Immigration Proceedings, 5 P
IERCE
L.
R
EV
. 59, 61-62 (2006). (The author states
videoconferencing violate a number of important rights that are fundamental to our concepts of justice: the right to be
present in court, the right to confront witnesses and evidence against you, and the right to effective representation by
an attorney.). Emphasis added.
2
Zachary M. Hillman, Pleading Guilty and Video Teleconference: Is a Defendant Constitutionally “Present” when
Pleading Guilty by Video Teleconference, 7 J.
H
IGH
T
ECH
.
L. 41, 41 (2007). (As the autho r notes, courtrooms around
the country are not perceived as fertile grounds for the use of new technology.).
3
See Alexandra Natapoff, Speechless: The Silencing of Criminal Defendants, 80 N.Y.U.L.
R
EV
. 1449, 1452, 1469
(2005) (Anything that d isrupts the free flow of private co mmunications between attorney and client effectively
silence the defendant. “… speech is the constitutionally celebrated vehicle by which defendants have their “day in
court” enforce or waive their constitutional rights, tell their sto ries to the jury, persuade the judge of proper
punishment, and communicate with their constitutionally guaranteed counsel.”). Emphasis added.
Private Attorney
-
C
lient Communications and the Effect of Videoconferenc ing in the Courtroom
25
of videoconferencing and ensure that its use is not at odds with the f undamental purpose of the access it
ostensibly pr ovides.
4
For courts to enhance a defendants’ sense that courtrooms are fair and just, they
must focus on improving c ommunications.
5
Effective communication is crucial to ensuring that
defendants perceive their experience as fair and effective.
6
The effect videoconferencing has on attorney/client private communications in the courtroo m is
understudied.
7
Research questions and methodologies have be en proposed but not carried out.
8
Possible
avenues of research include the effects of videoconferencing on legal decision-making, perceptions of
justice, and legal efficiency.
9
The underl ying concern is to determine whether videoconferencing in legal
proceedings violates the due process rights of defendants or whether it violates a defendant’s right of
confrontation under the Sixth Amendment.
10
This article investigates the claim that videoconferencing is detrimental to attorney-client private
communications when the att orney is in the courtroom but the client is in a remote locati on, such as a jail
or prison. I review the literat ure and research in this area to illustrate how this technology is currently
being used and the constitutional issues involved. Data from the National Center for State Courts
(NCSC) survey are utilized to explore how these issues currently manifes t themselves.
Part 2 defines videoconferencing. This section foc uses on attorney-client private communications and
the theories of how videoconferencing impacts such co mmunications when the attorney is in the
courtroom and the client is located in a remote location. Part 3 discusses the theories of communication
that relate to its functions. A review of Emergent Meaning Theory, Information Integration T heory,
Communication Theory, and others offer different ways in which videoconferencing are handled. Part 4
examines the pros and cons of videoconferencing with examples of how the courts have addressed these
issues and how social scientific theories view videoconferencing. In Part 5, I exa mine data from the
NCSC that suggests video conferencing is hav ing a negative impact on attorney-client co mmunications,
where clients have no opportunity for private communicatio ns with their attorney when their lawyer is i n
the courtroom and they are located at a remote location.
11
Little is known about the practical issue associated with attorney-client private communications via
videoconferencing, specifically in comparing the d ifference bet ween videoconferenced and in p erson
4
Harvard Law Review Association: Developments in the Law Access to Courts: Access to Courts and
Videoconferencing in Immigration Court Proceedings, 122 H
ARV
.
L.
R
EV
. 1181, 1182, 1192 (2009)
(Videoconferencing obstructs the fact-finding process and prevents courts from fulfilling the adjudicative function for
which they were designed.).
5
See M. Somjen Frazer, The Impact of the Community Court Model on Defendant Perceptions of Fairness, C
TR FOR
S
T
.
C
T
.
I
NNOVATION
, (Center for St. Ct. Innovation, NY, NY) Sept. 2006 at 24. (This research focused on the
perception of fairness in different court models. It was found that the clearer the communication between the
defendant and all the other participants in the court, including his defense attorney, the more positive their perception
of justice. This emphasis on clear communications is analogous to the use of videoconferencing. If
videoconferencing perceptively diminishes communications between a defendant and their attorn ey, then their
substantive right to adequate counsel and procedural rights has been diminished.).
6
Id. at 29. The policy i mplications detailed by the author include that effective communication is crucial to ensuring
defendants perceive their experiences as fair and that courts should continually work to improve communications.
7
Molly Treadway Johnson and Elizabeth C. Wiggins, Videoconferencing in Criminal Proceedings: Legal a nd
Empirical Issues and Directions for Research, 28:2, L
AW
&
P
OL
Y
, 212 (April 2006). (The authors confirm that there
is little empirical information concerning the use of videoconferencing in criminal proceedings. The effects of
videoconferencing on the behavior of the participants need to be reviewed and its effects on defendants’ rights.).
8
Id. at 2 23. Some potential research approaches include the use of previously developed psychological theories on
how video conferenced affect communications, especially private attorney-client communications.
9
Id. Questions about the actual effects of videoconferencing o n the perceptions an d behavior of participants in
criminal proceedings can be answered through survey and the use of experimental design.
10
Gerald G. Ashdown and Michael A. Menzel, The Convenience of the Guillotine?: Video Proceedings in Federal
Prosecutions, 80 Denv. U.L. Rev. 63, 64-65 (2002). (If efficiency is the issue, then the authors offer the example of
the efficiency of eliminating juries. “Without juries there would be no evidenti ary objections, no need for
conferences at sidebar, and, of course, no jury deliberations. Although defendants might obtain some benefit from
the increased efficiency achieved by eliminating juries, it would be trivial compared to th e benefits to the government
and the cost to defendants of not being tried by their peers.”).
11
See Anne Bowen Poulin, Criminal Justice and Videoconferencing Technology: The Remote Defendant, 78 T
UL
.
L.
R
EV
. 1089, 1110-1112 (2004). (These problematic questions have not been fully studied; that critical aspects of the
defendant’s communicative efforts will not be conveyed and, conversely, the defendant will not receive the full
import of their attorneys’ communications.).

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