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Abstract

The coronavirus pandemic led criminal courts across the country to switch to virtual hearings to protect public health. As the pandemic subsides, many policymakers have called for the continued use of the remote format for a range of criminal proceedings. To guide decisions whether to use remote criminal justice on a regular basis, it is important to review the advantages and disadvantages of the practice.

Remote criminal proceedings have been praised for their convenience and efficiency, but have also raised concerns. Many have worried that videoconferencing inhibits effective communication between defendants and their counsel, hinders defendants’ understanding of the process, impedes effective confrontation of witnesses, and prejudices the court’s perceptions of the defendant and witnesses.

Previous scholarly work has attempted to evaluate remote criminal proceedings through legal and policy analysis, surveys of practitioners, and a comparison of outcomes of in-person and remote proceedings. This Article adds insights based on direct observations of over three hundred remote criminal proceedings in misdemeanor and felony courts across Michigan and Texas.

Our observations reveal that judicial review of guilty pleas in the virtual setting is as brief and superficial as it is in person and may fail to detect inaccurate, coercive, or uninformed guilty pleas. But the virtual format presents additional risks to the fairness and integrity of the plea process, including the disengagement from the process by defendants, the difficulty of counsel and defendant to communicate privately, and the potentially prejudicial effects of inadequate technology and informal settings.

The Article concludes by arguing that states should not use remote plea hearings on a regular basis after the pandemic is over. To the extent they do continue conducting remote plea hearings, they must bolster procedural safeguards in the proceedings. Judges must review virtual pleas and plea agreements more closely, verify that defendants are making an informed and voluntary choice to proceed remotely, take measures to ensure that defendants are represented adequately, and address the potentially prejudicial effects of the remote setting. These measures can help protect fairness in the plea process and ensure that virtual guilty pleas remain constitutionally valid.

Publication Title

University of Pennsylvania Journal of Constitutional Law

Publication Date

2021

Document Type

Article

Keywords

remote proceedings, online proceedings, virtual proceedings, videoconferencing, guilty pleas, plea bargaining, plea hearings, criminal procedure, pandemic

Included in

Law Commons

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