Pleading guilty and video teleconference: is a defendant constitutionally "present" when pleading guilty by video teleconference?

• Author: Hillman, Zachary M.

Cite as: 7 J. HIGH TECH. L. 41

Courtrooms throughout the country are generally not perceived as fertile grounds for the implementation of new technology. Nevertheless, for over twenty years, judicial systems across the nation have employed video technology to connect an out of court defendant with the court. Jurisdictions that have utilized video technology find multiple benefits, including improved efficiency, security, and monetary savings. While the benefits of such technology sound impressive, serious concerns exist regarding the effects of the technology on the constitutional rights of criminal defendants.

One particularly troubling use of video technology occurs when a criminal defendant enters his or her guilty plea by video teleconference. Every criminal defendant has a constitutional due process right under the Fifth and Fourteenth Amendments to be physically present at all critical stages of their criminal proceeding, including the entry of a guilty plea. A guilty plea entered via video teleconference may negatively affect the defendant in a manner that ultimately impacts the overall fairness of the defendant's hearing. Therefore, unless a criminal defendant voluntarily and intelligently waives their right to be physically present when pleading guilty, a defendant appearing by video teleconference to enter a guilty plea should not be considered "present" in accordance with the constitutional meaning of that word.

This note discusses the nature of the right to be physically present in the courtroom when entering a guilty plea and analyzes the consequences that arise when a criminal defendant pleads guilty through the medium of video teleconference. Section I of this note examines the development of the due process right to be present at critical stages of one's criminal proceeding as established by Supreme Court case law. Section II discusses the evolving usage of video technology to connect an out of court defendant with the court, the benefits and concerns of such a process, and the procedural rules established through statutes and case law that address the issue in different jurisdictions. Finally, section III analyzes the effects that video teleconferencing has upon a defendant wishing to plead guilty and concludes that, without a knowing and intelligent waiver of the right to be physically present in the courtroom, the negative affects of such a system violate the defendant's due process rights because they deprive him or her of a fair and just hearing.

1. Criminal Defendants' Due Process Right To Be Physically Present At Entry Of Guilty Plea

   The United States Constitution does not explicitly grant a criminal defendant the right to be present at a criminal proceeding beyond the right to confront a witness. (1) While the right to be physically present at one's trial is largely derived from the Confrontation Clause of the Sixth Amendment, the Supreme Court has interpreted the Fifth and Fourteenth Amendments to the United States Constitution as providing a due process right to be present at a trial proceeding in which the defendant is not actually confronting witnesses. (2) This right attaches to any stage of a criminal proceeding that is critical to its outcome (3) and continues to the extent that a fair and just hearing would be thwarted by the defendant's absence, and to that extent only. (4)

   A defendant's right to be physically present at critical stages of court proceedings is not absolute. While a defendant has the right to be at all phases of the trial critical to its outcome, the right does not extend to a situation where the defendant's presence would be unnecessary to secure a fair and just hearing. (5) Examples of proceedings not deemed critical to the outcome of the case include a witness competency hearing, exclusion of a defendant from the jury's view of a crime scene, and an in camera discussion between judge and juror in absence of defendant. (6)

   As the above examples indicate, the Court has drawn a fine line to protect the defendant's right to be present at critical stages of his or her court proceeding while preserving the integrity and efficiency of the criminal justice system. In doing so, the Court has set a standard whereby the defendant's presence is constitutionally required during all critical stages of the proceeding because fairness demands that the defendant be present when his substantial rights are at stake. (7) Conversely, if fairness does not require the defendant's presence because his or her substantial rights are not at stake, then the proceeding is not critical and the defendant does not have the right to be physically present in the courtroom. (8)

   Pleading guilty is a critical phase of a defendant's trial because of the numerous rights given up and because the direct result is the defendant's conviction. (9) When a defendant pleads guilty, he or she waives a number of rights, including their right to trial by jury, the right to be confronted with the witnesses against him, the right to present evidence, and the right to raise the privilege against self-incrimination. (10) Further, a plea of guilty is a critical moment in the proceeding because it obviates the prosecution's burden of proof, and supplies both evidence and verdict, ending the controversy. (11) As with other constitutional rights, the defendant has the option to waive these rights, which is what he or she has to expressly do before they can plead guilty. (12) The judge has to be certain before any waiver is accepted that the waiver is voluntary and intelligent and made with a full understanding of its consequences. (13) Thus, as a critical stage in one's criminal proceeding, a guilty plea requires that the defendant be physically present when doing so.

2. Evolution Of Video Technology Connecting Court And Remote Defendant And Jurisdictional Variance In Approaching The Issue

   Although the use of video teleconference confers a number of benefits upon the court, defendants, attorneys, judges and scholars have expressed concern over the impact of technology on the defendant's due process rights. (14) Part A of this section discusses the evolution of the use of technology in courtrooms throughout the country. Part B examines the benefits and concerns stemming from the use of video teleconferencing. Finally, Part C will look at the different statutory schemes and case law that deal with video teleconferencing.

   1. Courtroom Use of Video Technology

      For over two decades, courts in the United States have employed technology to connect an out of court defendant with the court. (15) Today court administrators lobby for increases in courtroom technology in order to administer justice more efficiently. (16) Early on, courts realized the potential benefits by employing courtroom technology. (17) Criminal justice systems throughout the country are frequently overburdened with too heavy a caseload, insufficient space inside the courtroom, safety concerns, and the high cost of transporting defendants to and from the courthouse. (18) In addressing these problems, courts found a ready participant in video technology to help alleviate these concerns. (19) Although it is generally accepted that the defendant should be physically present at his or her trial, (20) courts began in the early 1980s to employ video teleconference for non-trial criminal proceedings such as arraignments, bail hearings, sentencing, and violations of parole or probation. (21)

      In developing the link connecting the court with a remote defendant, courts experimented with different technologies, including various connections, monitors, setups, and locales to offer the video feed from. (22) When courts first employed the technology, the video images and connections were shaky at best. (23) Nonetheless, technological advances have grown so rapidly that today judges, jurors, and the general public can receive a crystal clear picture of the defendant, and vice versa, with virtually no time lapse between the interaction. (24)

      Today, different jurisdictions and courts employ various video setups. Some courtrooms employ one camera that focuses directly on the defendant and one that focuses on the judge. (25) The image is then broadcast to a television directly in front of the participant. (26) Other courts employ a similar camera hookup but with the image broadcast on a computer that is split screen, which allows a defendant to view his image as well as that of the judge, and vice-versa. (27) The camera shots also vary with each courtroom, with some focusing on a panoramic view, some focusing on a full picture of the defendant, and with some focusing on just the head of the defendant or judge. (28) These, of course, are just two examples; judicial systems continue to experiment and implement new technology and innovations as they become available. (29)

   2. Benefits and Concerns of Video Teleconference in the Courtroom

      The debate over the use of video teleconferencing by the judicial system centers around two groups: those who champion its use citing the numerous benefits it provides to both the court system and the defendant, and those who claim that the use of such technology violates the due process rights of the defendant. Both sides of the debate present persuasive arguments with vigor and merit. The following section recites the most commonly cited benefits of such a system as well as the most commonly cited concerns of the use of video technology.

      1. Benefits To The Government

         As stated above, court systems throughout the United States have employed video technology in earnest throughout the past two decades. Such use of video technology allows the government to accrue a number of benefits. (30) In fact, one commentator has noted that the benefits of such a system flow primarily to the government. (31) One of the most substantial benefits of such a system is the enhanced safety of the courtroom. (32) When defendants are broadcast to the...