An Important Question to ask as COVID-19 Resurgence Leads to Florida Defense Lawyers Pleading to Return to Virtual Hearings
Nearly a week ago, the Florida Association of Criminal Defense Lawyers voiced their concerns about the resurgence of COVID-19 cases across the state and called for courts to return to virtual hearings for legal proceedings that are deemed non-essential. The plea comes after courts returned to normal, in-person operations in the spring. In June, Florida Supreme Court Justice Charles Canady allowed for courts across the state to lift their mask and social distancing requirements during in-person proceedings. In their news release, association president Jude Faccidomo stated they are concerned that “if proactive steps are not taken now, more severe measures will be required in the future and will result in further significant adverse due process implications.” In addition, the association also expressed concerns about infection rates in county jails and the high likelihood of spreading the virus, since the jails have a high turnover rate and hold pre-trial detainees that go to courthouses to attend pre-trial hearings. Therefore, they believe that returning to virtual court hearings would be safer and more efficient. Although each judge gets to decide if they want to conduct virtual hearings rather than in-person hearings, “evidence-based hearings like jury trials and termination of parental rights must be held in person.”
What Dangers do Virtual Hearings Pose?
As courts across the country utilized Zoom hearings in the midst of the pandemic, serious challenges that threatened the integrity of court proceedings followed. From Zoom calls getting intercepted to a juror walking off the screen to take a phone call during the first ever jury trial via Zoom in Texas, navigating legal proceedings through the uncharted territory that was Zoom was a feat for many. Constitutional issues also arose from the change, with a study published in the University of Baltimore Law Forum finding that defendants appearing in a virtual hearing in Baltimore, Maryland, were denied their right to counsel enumerated in the Sixth Amendment when their attorneys were denied the ability to speak with them. Furthermore, the study notes that “videoconferencing, as a vehicle for communication, cannot replicate face-to-face communication in real time, despite constant innovation.” This concept transcends into the court room, as “a judge’s social interaction with the defendant will influence the defendant’s perceived credibility, truthfulness, and dangerousness.” If such an interaction is critically impaired because the defendant is not appearing in-person, “they will be unable to adequately experience each other’s humanity” and in turn, the judge will not be able to adequately “probe for what is obscure, trap what is elusive, and settle what is controversial.” The fact that in-person testimony is seen as more believable than virtual testimony is a longstanding belief, and today, is supported by psychological studies that found participants who communicated through a computer program rather than in-person perceived the virtual communication to be significantly less credible. In addition, not everyone has access to the technology or lives in an area with a stable internet connection, both of which are required to attend a virtual court hearing. This issue undeniably speaks to how the justice system disfavors the poor and fails to recognize the hurdles that low-income individuals must face in our legal system. In 2019, “nearly half of low-income Americans [making less than $30,000 a year] lacked home broadband internet access or a computer. About one-in-three don’t have a smartphone. Further, about 42 million Americans, regardless of class, live beyond the reach of broadband internet.” If these indigent defendants do have access to technology, their data plans are likely limited to what they can afford. If the court will not help pay for their technology or data, then there is a significant burden and “undue constitutional pressures” placed on poor defendants for no reason other than
the fact they are poor. All of these factors significantly hinder a defendant’s ability to participate in their proceedings as the law intended them to. This leads us to question if the virtual proceedings that are intended to keep the public safe are actually putting defendants at risk for serious injustice.
How We Can Help
The transition from in-person to virtual court proceedings can lead to significant issues for defendants. If you believe your case was negatively impacted by the use of virtual court proceedings, it is imperative you contact a knowledgeable defense attorney as soon as possible to discuss your options. Don Pumphrey and team Pumphrey Law firm have years of experience defending clients and will ensure each defense is explored in the favor of you or a loved one’s case. Contact Pumphrey Law Firm today at (850) 681-7777 or send an online message for an open and free consultation with a Tallahassee defense attorney on our team.
Attorney Don Pumphrey, Jr. is a former prosecutor, former law enforcement officer, and a successful and experienced criminal defense attorney. Don has achieved over 100 not guilty verdicts at trial and over 2,000 dismissals.