Researchers found a sharp increase in the average amount of bail set in cases with video conferencing, but no change in cases that continued in person.
— Lisa Vavonese, Deputy Director, Center for Court Innovation Criminal Defense Initiatives
As the COVID-19 pandemic continues, courthouses across the country have adjusted to doing at least some of their business remotely—with litigants in one place, judges and lawyers in another. Even as jurisdictions start to emerge from lockdown, many courts have continued to do at least some of their business remotely as a way to minimize crowding and maintain social distance.
This episode of In Practice focuses on a specific example of video conferencing—its use at initial appearances in adult criminal court. The conversation looks at this practice—which some jurisdictions implemented long before COVID-19—from the perspective of defense practitioners, examining both pros and cons. In discussion with host Rob Wolf are members of the Center for Court Innovation's Criminal Defense Initiatives team, Lisa Vavonese, deputy director, and Liz Ling, coordinator.
This episode is funded in part by Grant No. 2017-YA-BX-K004 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Department of Justice’s Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the Office for Victims of Crime, and the SMART Office. Points of view or opinions in this podcast episode are those of the speakers and do not necessarily represent the official position or policies of the U.S. Department of Justice.
The following is a transcript of the podcast:
LISA VAVONESE: Researchers found a sharp increase in the average amount of bail set in cases with video conferencing, but no change in cases that continued in person. Average bond amount set for all cases that shifted to video conferencing increased by 51%.
ROB WOLF: Hi, I'm Rob Wolf, with the new episode of, In Practice, a podcast of the Center for Court Innovation. By now, everyone is familiar with doing things we used to do in person through remote technology platforms like Zoom and Google Hangouts. Work, meetings, classes, family time, hanging out with friends and doctor's appointments, even therapy visits. Most of us have been doing a lot of those things from our homes, connected to the world through a screen. Courtrooms are no exception. All across the country courthouses have been doing business remotely, with litigants in one place, judges and lawyers in another. Even as we start to emerge from lockdown, a lot of courts are continuing to do at least some of their business remotely, as a way to minimize crowding and maintain social distance.
On the Center for Court Innovation's new, Thinking Podcast, host Matt Watkins has launched an occasional series looking at what might be the lasting impact of COVID-19 on the justice system, and we're going to do a little bit of that same exploration here today on In Practice.
With me today are Lisa Vavonese, Deputy Director of Criminal Defense Initiatives at the Center for Court Innovation. She assists in guiding the center's work to enhance indigent defense practice across the country, and provides consulting to support local jurisdiction's efforts to protect Sixth Amendment rights. And I'm also speaking with Liz Ling, Coordinator of our Criminal Defense Initiatives, and they're here today to talk to me about using video conferencing at initial appearances in criminal court. And we're going to mostly look at it through a defense practitioner's lens. And they are joining me today from two different locations. Lisa is in Syracuse, and Liz is in Baltimore. Thank you very much for joining me.
LISA VAVONESE: Thank you for having us.
LIZ LING: Thanks, Rob.
WOLF: So as I just said, we're going to focus on video conferencing at initial appearances in a criminal court, but Lisa, can you walk me through what that actually means?
VAVONESE: Absolutely. So generally, if we're talking about initial appearances, it will be a time that includes a judicial bail review, probable cause determination, and an informal reading of the charges. If we're talking about arraignment, that's a formal reading of the charges and the defendant is asked to enter a plea, either guilty or not. In some places, initial appearance and arraignment happen together. In other places, initial appearance happens first, and then arraignment at a subsequent hearing. Either way, it's likely the first time a defendant appears before a judge, and it's likely when a lawyer will be appointed.
Video conferencing is when the defendant appears remotely before the judge. In some places, the defense attorney will be in the same location as their client, in other places, the defense attorney's with the judge. The prosecutor is generally going to be wherever the judge is. Currently, during shutdowns caused by COVID-19, everyone is in separate locations.
WOLF: And so it's been a very common practice right now, for the last couple of months across the country. Is that fair to say?
VAVONESE: Correct. Almost for everyone.
WOLF: I know the Center for Court Innovation and the National Legal Aid & Defender Association had a panel just last month, in May. It was a virtual panel, of course, to talk about this very issue. Why are defenders particularly interested in this topic? And Liz, maybe you could answer that question?
LING: Yeah, definitely. So in May, we did host four panelists. One was a psychologist, two members of statewide Indigent Defense Commissions, as well as a Deputy Chief Public Defender. And I'll say that while we anticipated this issue of video conferencing at initial appearances being relevant to defenders, we were actually very surprised by how much interest there was, and there were over a hundred people who attended this panel. And I think that's because decisions about a human being's pretrial liberties are being made at initial appearances, and the value of an effective lawyer at these appearances can't be overstated. So, defenders are playing a critical role in gathering information, not only from defendants, but also from their family members, friends or other community support members who might be coming to the courthouse. And then the defense attorney is conveying that information to a judge, who makes a bail decision.
And many of the defenders during our virtual panel expressed concern about their ability to communicate with their clients confidentially, both before and during these initial appearances. There's so much that happens in brief moments before and during a court appearance, a quick whisper from a defendant, letting their attorney know a parent or a sibling just showed up, or even the defense attorney physically pointing to that family member, who the judge can then ask additional questions of. Defense attorneys, from being in courtrooms and practicing in courtrooms, know that all of these spoken or unspoken moments can be what ultimately determines whether a person is released back into their community, where they can maintain employment, housing, or even custody of their children.
WOLF: Well, so it sounds like, doing things remotely, perhaps a lot of things are lost, but, Lisa, tell me, before COVID, it's not like this is just something entirely new. People might say, "Well, during this time, and we have to increase social distancing. We have to make certain sacrifices. Certain things might be lost," but having hearings by video conference really isn't something new. Courts have been doing it for years, haven't they? And under certain circumstances?
VAVONESE: Correct. They have. Mostly for defendants that are in jail. In fact, I work with a jurisdiction that's been using video conferencing at initial appearance for nearly 20 years. Generally, the reason that a system may move to an initial appearance with video conferencing is that the court feels that it may improve efficiency. So, appearances may move more quickly, and that it saves money on costs. Deputies don't need to transport individuals from the jail to the courthouse.
WOLF: But now the use of video conferencing has totally exploded, right, during COVID 19. Isn't that right, Liz?
LING: Yes, definitely. So I'd say almost all courts across the country were required to close their physical doors at some point, or still are closed, and then conduct hearings virtually. And as Lisa mentioned, some jurisdictions were already doing this, but many were not. In New York State, for example, the first appearance is typically arraignment, and that's usually conducted in person. When COVID hit, the governor issued an executive order permitting the use of video at arraignments, but only while the public health emergency continues. During that May virtual panel we hosted, we also polled participants about the use of video in their jurisdictions, both before and during COVID, as well as the likelihood of continuing to use video after COVID. We had 58 poll responses, from 16 different states and two territories. 30 people indicated that their jurisdiction did not use video conferencing at initial appearances before COVID, and of those 30, 12 said they believe that their jurisdiction was likely to continue using video even after the public health emergency subsided.
WOLF: So there might be some permanent changes as a result of COVID? So, what did defense attorneys think of that? If they had concerns before about this, are they going to have even greater concerns now? Are they worried about this change? And also, Lisa, I guess I'm directing this to you. Are there concerns just about first appearance? What if other hearings also were done by remote video? Because I can imagine that might have certain advantages. Someone doesn't have to interrupt their day or something, if they need to come to court for a short appearance or something, or wait around all the time, they could just do it remotely.
VAVONESE: You're correct again, Rob. Defenders had these concerns, and others had these concerns, well before COVID-19. And I think the pace in which new jurisdiction had to implement video has elevated a lot of those same concerns, and is now much more a national conversation about the use of video. The concerns, most certainly there are concerns about constitutional rights, specifically that defendants' rights under the US Constitution are being violated, including the ability to have confidential attorney- client communications, the defendant understanding the charges, knowing why they've been brought to court, and due process.
Defenders are also really concerned with fairness. Can the defendants see and hear everything clearly? Do they understand what's happening during this appearance? You also have to think about the humanity, or the dehumanization of the defendant. How does video affect perceptions and biases? I also think you're right that these concerns don't necessarily apply to all appearances. For example, defenders were less concerned about video conferencing for status update appearances. Those would be the appearances where a defendant is checking in with the court about progress on something, like their community service they might have to do, or engaging in a drug treatment program. Appearances that are critical stages of the proceeding, those are the appearances that defenders are most worried about.
WOLF: There was a time in my life when I worked as a reporter, and I would sometimes have to go to court. And one of the cool things, from a reporter's perspective, and I guess the public in general, is that court proceedings I thought were always public, except in maybe very rare circumstances. So when a court proceeding is put on Zoom, what happens then? Does that mean they're hidden from the public? And either one of you could answer that.
LING: Yeah. So, to answer your first question, yes, court proceedings are supposed to be public and the Sixth Amendment actually guarantees explicitly the right to a public trial. And I think that's because public presence at court proceedings is meant to hold systems and the players more accountable. So, while COVID has been happening, there have been different approaches to giving the public access to virtual criminal court proceedings. Some of the approaches I'm aware of include broadcasting hearings on a screen in the court house, like was happening in New York City for some time, or streaming hearings that are occurring over Zoom on YouTube, or simply using a telephone conference line so that people can listen in to court appearances.
What I think these approaches all raise are concerns about what's commonly referred to as the digital divide. So, not everyone in this country has access to a phone, let alone high speed internet that allows for video streaming. At the same time, I think streaming hearings in the court house raises the concern that in order to access these proceedings, the public has to risk potential exposure to the virus.
WOLF: When speaking to you guys before, you told me there was a little bit of research that backs up some of their concerns. So I think that might be interesting, to learn a little bit about the research. So could you share some of that?
VAVONESE: Sure. This is Lisa, I'll kick it off. I would say probably the most well-known and rigorous research study is out of Cook County, Illinois, which includes Chicago. Back in 1999, they began holding their bail hearings for most felony cases using closed-circuit TV. The assumption that the system stakeholders had was that it would reduce costs without disadvantaging defendants.
Then in 2006, a lawsuit was filed challenging the use of video conferencing, and their researchers took a look. And they examined the pattern of bail decisions for the eight years prior and eight years following implementation, and the results were striking. They found a sharp increase in the average amount of bail set in cases with video conferencing, but no change in cases that continued in person. Specifically average bond amounts set for all cases that shifted to video conferencing increased by 51%.
So, after the research findings were disclosed in 2008, only four days later, Cook County agreed to return to in-person hearings, and the lawsuit was dismissed as moot.
WOLF: Wow, that's pretty remarkable. What does that say about the value of being in the room with someone, face to face. It's like their humanity, I guess, is more evident. Maybe it's like warfare, that it's much easier to drop a missile and send it thousands of miles away and kill a million people than it is to be right in front of someone in a war, and have to attack them hand-to-hand? There's something about the remoteness that dehumanizes people.
LING: This is Liz, and I think an example that was shared by one of the panelists, a public defender from East Baton Rouge, is the eight-week expedited arraignment pilot that they ran last fall. So, prior to that pilot, East Baton Rouge was conducting no council first appearances, where bail would be set by a judge without a prosecutor or a defense attorney present, and defendants appeared via video from the jail. Defendants who couldn't make bail were then typically arraigned in a courtroom and appointed an attorney for almost five to 12 weeks after the initial arrest. And under the pilot program, defendants were brought physically to the courtroom, to be arraigned within 72 hours, with a defense attorney present and a prosecutor present.
And what the public defenders in East Baton Rouge shared with us is that they found bail amounts to be much lower during that eight-week pilot period than previously. And they attributed this to, I think what you're saying, both the presence of a defense attorney, as well as the physical presence of everyone in the courtroom. So it's the public defender, the prosecutor and the defendant. Attorneys were able to not only consult with defendants, but also with prosecutors, to negotiate and share information with each other about the case.
WOLF: I just have to pause there for a second, because it sounds like you're saying the prior practice was that someone could be in jail for five to 12 weeks before they even get an attorney, which just sounds like not something, and this is just my ignorance, clearly, because apparently that is a practice, but it doesn't sound like something that would be possible in America.
LING: Yeah. I think that is something that you'll see in a lot of different jurisdictions around the country, actually, is a significant amount of time between arrest and the point at which a defendant is appointed or afforded an attorney.
WOLF: So, as you guys have said, some places are more used to video hearings, and they've been doing it on a more regular basis, long before COVID. So, are defenders in all jurisdictions united in their concerns and their opposition, or are they willing to embrace it in certain settings, because there are certain advantages that they see, maybe?
VAVONESE: So, there is a spectrum. In some places it's the choice between no defender present at all, and at least a defender present through video. For example, I spoke with a Chief Public Defender in a rural jurisdiction, who said to me, "I can't forego progress for perfect. Video allows me to at least have a lawyer there, even though it's done remotely." And other jurisdictions, like Liz mentioned before, it can take a really long time to get an incarcerated defendant in front of a judge, for whatever logistical reason. And video may shorten that time period, to get a defendant in front of a judge. So defenders may recognize the limitations of video, but they're operating in their own realities. In other places, where these appearances are done in person and it's done timely, video feels like a huge setback, and those defenders are pretty adamantly opposed to its continued use after COVID.
WOLF: Well, it sounds like, given the range of contexts, experiences, resources, there's probably a lot of debate still to be had on this. So, what's being done to move this discussion forward? Are there gaps in knowledge? Is there more research that can be done?
LING: Yeah. So I'll mention the Cook County study, that Lisa mentioned earlier, again, as an example of research that can still be done, or be done again. As far as we're aware of, there are no other rigorous empirical studies looking at really the impact of video conferencing technology, at initial appearances, on case outcomes such as bail amounts. And in particular, one of the factors identified by researchers in that study, that contributed to the differences in bail amounts, was the quality of video technology. So, specifically the fact that the video was in black and white, and extremely grainy, had an impact on bail amounts. And as we all know, video technology has improved significantly since then, and that's definitely an area where more rigorous research can be done.
We also heard from defenders, during our panel, an overwhelming desire for more social science research. The human factors psychologist provided, during that panel, an overview of social science research on mediated forms of communication. So, any communication that's taking place over telephone or video, and isn't happening face to face. And what she shared is that mediated communication can really negatively impact engagement perceptions, as well as decision-making. She talked about what's lost, or not possible, through these types of communications. So non-verbal cues like body language, eye contact, things which can convey a lot of meaning and information in person, when you're talking to another person face-to-face, but is less so when communicating over video. And this definitely has significant impacts on our initial impressions.
Other factors that she mentioned that can make communicating over video more difficult, or less effective, include things like age, language, for example, non-English speakers, learning disabilities, mental health concerns, or simply just prior experience with using videos. Defenders also shared concerns about their ability to build rapport and trust with their clients over video, both of which are critical to effective representation.
I'll also add that I think many of us are experiencing this on a personal level, because of COVID. If we think about how much less satisfying our Zoom calls with friends or family are, as well as the fatigue that we're hearing a lot about, when it comes to conveying the same level of meaning through video calls.
WOLF: So, Lisa, maybe we could wrap this up by talking about some of the best practices, such as they are, or such as we know about them right now. So if someone has to participate in a video conference at first appearance, what should they be thinking about, what should they be doing?
VAVONESE: So I'm not sure I'd use the term, "Best practices." I do think some defender organizations and advocacy groups are putting together guidance for the practitioner that's using a virtual courtroom, and it includes some practical instructions or tips about how they can help mitigate potential harm to the defendant.
A couple of examples of those would be that making sure there are virtual breakout rooms, so that defense attorneys and their clients can have a confidential conversation. Making sure that camera angles allow for all parties to see each other clearly. That sounds obvious, but both Liz and I have been observers of these proceedings, where there might be something like a pillar that blocks the judge from being viewed by the defendant, or there may be an angle that allows only half of the face of the defendant to be seen to the judge. So it's important that those pieces of technology are utilized really well for clear visual and audio. Also, thinking about requiring the consent of the defendant to have this proceeding be done virtually, and having that on the record. And as Liz mentioned before, there is a digital divide, and there needs to be realistic alternatives for people that simply don't have access to high-speed internet.
I would also mention that, prior to COVID-19, there was a convening of some national experts on the topic, and there was a report that was published. It does include in that report, what they identified as some advantages to video, things that we had mentioned before, getting defendants in front of a judge more quickly, allowing the defender to at least be present virtually, and also identified some of the disadvantages to video, which we've talked about quite a bit here, particularly from the defense perspective. That report also comes to a bit of the same conclusion that Liz came to in the question earlier, which is that we need to know more about the impacts of video, particularly on bail decisions. So, some research is really needed to take a look to see how this is impacting people and their lives.
That report, if you want to take a look at it, you can find it, it's free and publicly available online. You can just Google, "Court appearances and criminal proceedings through tele presence."
WOLF: "Telepresence." Sounds like telepathy or something. Thank you very much for joining me today. This is an important issue, and certainly one of the many things that I think COVID has drawn our attention to. So I thank you both for thinking so hard about these issues and for explaining and updating our listeners on what's been going on.
VAVONESE: Thank you, Rob, it's a pleasure.
LING: Thank you.
WOLF: I have been talking to Lisa Vavonese, Deputy Director of Criminal Defense Initiatives at the Center for Court Innovation, and Liz Ling, Coordinator of our Criminal Defense Initiatives. Don't forget to subscribe to, In Practice, and also our new, Thinking Podcast, that way you'll never miss an interview.
Our theme music is by Michael Aaron of quivernyc.com. This show is edited by me, Rob Wolf, and I got help to get this show to you from Emma Dayton, Samiha Meah, Bill Harkins, and Matt Watkins. Don't forget to visit our website, www.courtinnovation.org. Thank you very much for listening.