Resolution on the Use of Virtual Hearings and Reporting

Model Bill Info
Bill Title	Resolution on the Use of Virtual Hearings and Reporting
Date Introduced	June 16, 2020
Date Finalized	August 9, 2020
Type	Model Policy
Status	Final
Task Forces	Criminal Justice

Resolution on the Use of Virtual Hearings and Reporting

WHEREAS, when defendants fail to appear in court and a warrant issues for their arrest, they often do not have an easy and simple way to get back on the court’s docket without being rearrested or taken back into custody;

WHEREAS, missing a meeting with a probation or parole officer is considered a technical violation of supervision and thousands of individuals are revoked from supervision for such violations;

WHEREAS, failures to appear in court may occur that are beyond the control of the defendant, which are not attempts to obstruct the criminal justice process or flee from prosecution; under such circumstances, and where the defendant wants to then voluntarily comply, defendants should be offered in appropriate circumstances an easy and simple way, including an electronic or virtual process, to get back on the court docket and extinguish the arrest warrant as expeditiously as possible thereby reducing the need for rearrest;

WHEREAS, data from New Jersey and Michigan indicates that failure to appear rates for virtual hearings initiated during the pandemic have been far lower than they were for in-person hearings;

WHEREAS, some drug court judges and supervision officers have found that video check-ins are actually superior because the individual is more forthcoming about their challenges and family members are present, thereby providing context for the interaction and the types of interventions and resources that would be most helpful;

WHEREAS, in-person hearings and check-ins have drawbacks in addition to potential exposure to infectious diseases, including transportation barriers and costs, the costs associated with operating physical premises, and waiting time that often occurs in rooms with individuals who span a wide range of risk levels and may have had prior negative interactions;

WHEREAS, video proceedings can diminish fundamental constitutional protections and impair the right to counsel;

WHEREAS, the Sixth Amendment guarantees the accused the right to confront their accuser and the accused’s right to due process and confrontation includes the right to be present at trial;

NOW, THEREFORE BE IT RESOLVED, that virtual mechanisms must not replace in-person criminal trial processes, and virtual hearings may be used in pre-trial processes only with the informed and knowing consent of the accused, after consultation with counsel; if a defendant does not consent, a court shall offer an in-person hearing at the earliest time that it is feasible in that jurisdiction based on health and safety protocols, while not denying any rights guaranteed to the defendant by state or federal law;

NOW, THEREFORE BE IT RESOLVED, that jurisdictions should carefully review outcomes and costs associated with virtual hearings and check-ins that were initiated in response to the COVID-19 crisis and compare those with the prior operations before immediately reverting entirely to in-person proceedings and appointments;

NOW, THEREFORE BE IT RESOLVED, careful attention should be given to the types of defendants and people on probation and parole for whom virtual hearings and appointments are most effective, taking into account their offense and risk profile, demographic characteristics, access to technology, access to private and confidential spaces to participate in hearings and appointments, and other factors. Jurisdictions should also ensure access to counsel is provided at virtual hearings, including the ability for the defendant to consult privately and confidentially with counsel when desired.