Talking heads: virtual reality and the presence of defendants in court.

• Author: Davis, David A.
• Position: Florida

With the advent of the Internet and other electronic marvels, the courts have recognized an inevitability of the penetration of the electronic revolution into the way they do business. Indeed, the Florida Supreme Court has cautiously welcomed it,(1) and now has video cameras throughout its building. Briefs filed with that court are promptly put on the Internet, as are its opinions. One can even watch oral arguments in that court from the comfort of one's office, home, or beach house.

This excited acceptance of the electronic potential promised by the Internet is in stark contrast to the historical skepticism courts have had about television cameras in the courtroom. Until 1981, the U.S. Supreme Court had an aversion to their intrusion into judicial proceedings.(2) That changed with Chandler v. Florida, 449 U.S. 101 (1981), and the nation's high court left the decision to admitting the media and its associated technology largely to the states to control.

If the television camera has gained only recent acceptance in the courts, the same cannot be said for the presence of defendants charged with crimes. For three quarters of a millennium they have had a fundamental--and in the United States for more than two centuries, a constitutional--right to be present at their trials and other critical stages of the proceedings that were created to determine if the state could deprive them of life or liberty.(3) The intrusion of the Internet and the television camera into the courtroom has brought with it the emerging idea that a defendant's "virtual" presence can be the same as his actual, physical presence in court. If, as a matter of policy, cameras are now in the courtroom, does the defendant need to be there also? Nationally, the results have been mixed.(4) In Florida, though the Supreme Court has embraced the marvels of the electronic age, it has developed a strong skepticism that defendants need only appear on a television screen.

The issue of physical versus virtual appearance most recently surfaced in the context of the petition of several juvenile court judges who sought to change Fla. R. Juv. P. 8.100 to provide for only a television appearance of juveniles at their detention hearings.(5) The court refused to change the rule then, but it specifically authorized various circuits "to institute a one year pilot program that will allow juveniles to attend detention hearings via audio/video device[s]."(6) Three years later, a bare majority of the court allowed, on an interim basis, the audiovisual presence of the defendant at the detention hearings.(7)

Significantly, in the 1999 opinion the court was badly split on the wisdom of allowing child defendants to appear at detention hearings via television. For the majority, judicial efficiency and the "best interests of the child" justified substituting video presence for actual presence. The dissenters, led by Justice Lewis, were clearly troubled with fulfilling George Orwell's prophecies.(8)

By the time the court reexamined the issue a year later, Justice Overton had retired and Justice Quince had joined the court and a new majority. Justice Lewis, now writing for the court, rejected changing the rule.(9)

Specifically, many observed that there was no proper opportunity for meaningful, private communications between the child and the parents or guardians, between the parents or guardians and the public defender at the detention center and a public defender in the courtroom.... Moreover, perhaps because it was difficult for the children to see, hear, and understand what was taking place, the youth did not behave as those participating in person in a courtroom; that is, the hearings totally lacked the dignity, decorum, and respect one would anticipate in a personal appearance before the court.

As to this last point, one trial judge particularly noted that "most juveniles at video first appearance hearings appear almost like zombies. Conversation between a parent and a teenager under normal conditions where there is conflict is difficult. Conversations via a video screen with a juvenile who is in detention is extremely difficult and problematic.(10)

While the opinions on amending the juvenile rules have obvious, special resonance to the particular needs of juveniles, they have wider application than those proceedings. As such, constitutional issues that never surfaced in the juvenile rule opinions will have to be considered and accommodated if further efforts are made to bring the defendant to court only through a monitor.

Of course, in different contexts, courts have dealt with the issue of the defendants' and witnesses' presence at trial. Although those charged with crimes have a constitutional right to be present at their trial, it is not absolute. If they disrupt the proceedings, the court can exclude them. Similarly, the wheels of justice will continue to turn if they choose to go to the beach instead of attending their trial.(11) If witnesses cannot attend a trial, or they are children who might be emotionally damaged by attending, procedures exist that will allow them to testify, and do so electronically if necessary.(12)

When virtual presence has been considered in the context of a criminal proceeding, four legal problems have emerged: 1) Except in a few limited instances, there is no...