CAN YOU SEE AND HEAR US, MS. SMITH? PROTECTING DEFENDANTS' RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN USING AUDIO AND VIDEO CONFERENCING IN JUDICIAL PROCEEDINGS.

• Author: Valchev, Ivaylo

INTRODUCTION I. BACKGROUND A. The Recognition of the Right to Assistance of Counsel. B. Right to Counsel as the Right to Effective Counsel C. The Effectiveness of Counsel in Audio and Video Conferencing 1. Van Patten Background 2. Court of Appeals of Wisconsin Review of State v. Van Patten 3. Federal Review 4. The Supreme Court's Review of Van Patten II. ARGUMENTS A. The Confrontation Clause Impacts the Effective Assistance of Counsel During Audio and Video Conference Appearances B. The Risk to the Effectiveness of Counsel with Appearance Via Audio and Video Is Reduced at the Earliest Stages of the Judicial Process and After a Trial C. Neither Strickland nor Cronic Can Adequately Assess the Effectiveness of Counsel When Considering Audio and Video Conferencing CONCLUSION INTRODUCTION

The twenty-first-century courtroom has little resemblance to its predecessors. While judges, attorneys, defendants, and an assortment of courtroom officials remain as fixtures of the administration of justice, technology has ushered a revolution in the practice of law. In 1998, the Administrative Office of the United States Courts piloted a program that would introduce more technology into federal courts. (1) The program specifically sought to install "monitors, document cameras, videoconferencing capabilities, and internet connections." (2) The program was an early effort to revolutionize courts, and despite funding limitations that followed, many federal and state courtrooms now include upgraded technology. (3)

Technological improvements to courtrooms have focused on updating technology used for presenting evidence. (4) These changes have primarily replaced antiquated techniques of presenting evidence to judges and jurors. (5) Whereas whiteboards or chalkboards, hard copies of documents and photographs, poster boards, and the like were staples of courtrooms before the concerted effort to introduce technology into the courtroom, devices have now replaced many of these functions. (6) An entirely wired courtroom easily includes monitor or screen displays next to the judge, counsels' tables, the jury box, court reporter, deputy, and hanging from the ceiling for the public to view. (7) Other than viewing displays, the technological upgrades have included: annotation monitors allowing witnesses to directly mark exhibits; evidence cameras which allow attorneys to ensure that evidence is easily viewed and displayed; various inputs and outputs allowing for the use of more technology; integrated controls so that judges and courtroom officials can control the displayed content; and video and audio conferencing capabilities that allow for remote appearances. (8)

Audio and video conferencing, (9) in particular, has expanded the communication reach of modern courts. This technology allows individuals to communicate with each other remotely by both hearing and seeing each other. (10) Because of its visual and auditory functions, video conferencing is superior to technology that only uses audio conferencing because it allows individuals to observe the other participants' facial expressions and physical movements, which naturally improves communication. (11) While video conferencing is superior to audio conferencing, both present similar legal problems. In this Comment, their impact on the judicial process will be analyzed simultaneously because the crucial distinction between a remote and physical appearance is not the specific characteristics of the mode of remote appearance--whether it is audio or video--but instead the fact that there is a remote appearance.

Inherent in the overall increased reliance on technology in the courtroom is efficiency. The use of video and audio conferencing has unique benefits. For one, the legal community widely accepts the premise that conferencing via audio and video leads to substantial financial savings. (12) These savings are mainly due to a reduction of travel costs for both the attorneys and defendants, especially in cases of incarcerated defendants. (13) Moreover, video conferencing is widely believed to result in reduced travel time, more efficient use of judges' time, scheduling flexibility, and better accommodations for participants who are ill or cannot travel. (14) This not only improves convenience but also has the potential to create efficiencies in courtroom proceedings.

The effects of using video conferencing are not always a net positive. Any technology brings a risk for technical problems, and video conferencing is no different. Some of the technical problems associated with the use of video and audio conferencing technology include: initial connectivity, dropped calls or video, not being able to see or hear the participant, and audio or video delays. (15) As alluded to above, courts have financial limitations in updating courtroom technology. The actual cost of installing a system capable of delivering the type of performance required for a judicial setting can be as high as $200,000. (16) Courts must determine whether the initial cost is worth any future financial savings. (17) Given the substantial increase in the use of this technology, it appears that some courts have found that having video conferencing capabilities is a beneficial cost.

The uses of this technology have real effects on the judicial system, and it is only prudent to consider these effects as the judicial system continues to embrace technology in the courtroom. (18) Nothing is at higher risk than the constitutional guarantee to effective assistance of counsel. While technological capability will likely only increase and improve in the future, the consequences of its use in the judicial process are still not fully understood or tested as they apply to the decision-making process of judges and jurors. (19) The effect on the adversarial process of the judicial system is an extension of that concern. (20) Broadly, this Comment aims to explore how the use of audio and video conferencing in courts affects the Sixth Amendment right to effective assistance of counsel.

In the "Background" section, this Comment introduces the right to counsel and the right to effective assistance of counsel. The following section examines the Supreme Court case, Wright v. Van Patten, and its consideration of how remote appearances affect a defendant's right to effective assistance of counsel. Next, the Comment introduces three arguments about the use of video and audio conferencing and its effects on the effective assistance of counsel. First, it considers the effect of video and audio conferencing on the Confrontation Clause within the context of remote appearances. Next, it explores how different judicial proceedings create more or less favorable conditions for the use of remote appearances by considering the impact on critical stages of the judicial process. Lastly, it argues that current tests for determining ineffective assistance of counsel are inadequate for future uses of technology and also proposes an alternative test. This Comment concludes with a final observation on the topic of the use of remote appearance technology in courts.

1. BACKGROUND

   The Sixth Amendment of the United States Constitution guarantees that "[i]n all criminal prosecutions, [a defendant] shall enjoy the right to ... have Assistance of Counsel for [her] defense." (21) The right to assistance of counsel is not an independent right but instead works in tandem with other Sixth Amendment guarantees (22) to achieve the Amendment's overall goal of a fair trial. Without the education, knowledge, skills, and expertise counsel provides when representing a defendant, the adversarial process envisioned by the Amendment would falter. (23) Thus, the guarantees in the Sixth Amendment are critically dependent on the assurance that a defendant has counsel to represent her in criminal prosecutions, making the right to counsel indispensable.

   1. THE RECOGNITION OF THE RIGHT TO ASSISTANCE OF COUNSEL

      While the Sixth Amendment was ratified in 1791 as part of the Bill of Rights, the Supreme Court did not begin to define the scope of its protections adequately until the twentieth century. Courts mostly believed that the right embedded in the Sixth Amendment was a "declaration of the [defendant's] right to counsel," and not "a duty on the part of the United States to provide it." (24) The Court's recognition that indigent defendants were entitled to an appointed counsel profoundly underscored the importance of counsel in a trial and also created a duty on the part of the government to provide counsel. In the 1938 decision Johnson v. Zerbst, the Court held that an indigent federal defendant had the right to court-appointed counsel. (25) The Zerbst Court reasoned that the right to assistance of counsel was "one of the safeguards of the Sixth Amendment deemed necessary to ensure fundamental human right of life and liberty." (26) The Court recognized that without counsel defending her client, a skilled prosecutor could present a case without any challenge on the merits of the presented theory, the introduced evidence, or, more generally, the knowledge to navigate the judicial process. (27)

      In 1963, the Court in Gideon v. Wainwright extended the right to assistance of counsel to indigent defendants in state felony cases. (28) It recognized that the right to assistance of counsel is fundamental to the guarantee of a fair trial and, as such, it must apply to the states. (29) Without counsel representing a defendant, there would be little assurance that the envisioned adversarial process in a fair trial would be possible. (30) The Court was particularly concerned about the imbalance between the prosecution and the defense if the defendant was not guaranteed representation. (31) The concern was that the prosecution could always be assumed to have sufficient funds to fulfill its societal public safety role, but defendants could not always be guaranteed representation if only defendants...