Tech Tips

• Citation: Vol. 45 No. 3 Pg. 56
• Pages: 56
• Publication year: 2022

Tech Tips Vol. 45 No. 3 Pg. 56 Wyoming Bar Journal June, 2022

When Do Technical Issues in Remote Proceedings Amount to Violations of the Right to Due Process?

Blake A. Klinkner

Washburn University School of Law Topeka, Kansas

During the COVID-19 pandemic, as in-person proceedings have been suspended and replaced with videoconferencing, a number of challenges have been raised by litigants that such remote proceedings are violative of due process rights. Nearly all such challenges have resulted injudicial determinations that videoconferencing in-and-of-itself does not violate due process when used as a platform for adjudicative proceedings.^[1] However, there may be circumstances when technological difficulties do arise to a level where a party's due process rights become violated. A recent case from Massachusetts, Adoption of Patty, has made headlines for exemplifying circumstances under which technology issues may deprive a party of due process, and attorneys should take heed of the errors committed in Adoption of Patty to help ensure that their own proceedings will not be subject to the kinds of technological issues that may result in violations of due process.

Adoption of Patty involved a termination of parent rights trial conducted via Zoom in September 2020.^[2] As soon as the trial commenced, the court realized that the mother (who proceeded pro si) was never provided with instructions on how to participate in the remote trial. Standby counsel assigned to the mother then informed the court that the mother wished to participate in the trial but did not have access to videoconferencing technology.^[3] At this moment, the court provided the mother with a telephone number that would enable her to dial into the trial.

Once the mother telephoned into the trial, a number of technical issues arose. After the mother was disconnected early into the first witness' testimony, the mother called back, but was placed into Zoom's "waiting room" which prevented her from actually joining the trial until some time later when the clerk realized what had occurred and permitted the mother to rejoin.^[4] The second witness' internet connectivity impaired the ability of the "courtroom" to understand what she was saying, to the point where the judge asked the witness to "yell" into the microphone so that the participants could understand her. The third witness' internet froze, which resulted in the witness being kicked out of the videoconference and required...