ST. PAUL — Using video technology to conduct court hearings has its drawbacks. Participants can sometimes show up shirtless, smoking, driving and with children screaming in the background.
Some talk back to the judge or swear, out of reach of a bailiff’s rebuke. Judges waste time waiting for technical issues to be worked out, and victims sometimes feel cheated out of facing an offender in person.
“I think we need to be careful about what happens to the rules of decorum,” Judge Stoney Hiljus, of the Minnesota 10th Judicial District, said in a recent judicial council meeting. “Because, quite frankly, I deal with more issues of decorum on Zoom. At what point, especially in a criminal context, if I decide that a defendant is so unruly that I’m going to remove them or mute them in a Zoom hearing — when does that have constitutional ramifications?”
Since the pandemic prompted Minnesota courts to find ways to conduct proceedings without meeting in person, judicial officials have gained experience with using video conferencing. Now, the state is beginning to work out a framework of what court hearings might look like when all pandemic restrictions are gone.
Zoom is here to stay
The findings show that virtual hearings — generally conducted using the Zoom app — have their place and will not be going away entirely.
In September, the Minnesota Judicial Council Committee, composed of 25 members, many of them judges, voted to phase in a structure that would decide when a court could meet in person and when it could meet remotely.
The vote was based on the findings of a work group dubbed “The Other Side” that compiled feedback from all areas of the court in a six-month period.
For non-criminal cases, the council voted that hearings where evidence is being presented or testimony is taken must be held in person.
For noncriminal cases that don’t involve evidentiary hearings, those may be held remotely.
What about a judge's discretion?
The ruling allows for case-by-case exceptions under extenuating circumstances — and that has been the sticking point. What exactly constitutes an extenuating circumstance?
Some judges want the choice to be up to them.
“This was raised by multiple judges in our district,” said state Supreme Court Associate Justice G. Barry Anderson. “We want to retain that discretion with the judge.”
That motion was overruled because the council felt there would be no reason to provide guidance if judges were left to their own discretion, and that this freedom might create a “nightmare” in terms of implementation.
When it works and when it doesn't
The work group found that holding hearings remotely worked well in family court because attendance was more reliable. Parents didn’t need to get baby-sitters or rearrange their lives to be at the courthouse. They simply had to pick up their phones.
Sometimes Zoom worked better for order-for-protection hearings because the victim felt safer, not having to worry about seeing their abuser in court.
Other times, however, in-person worked better because of the contentious nature of the hearings. Everyone could be in the same room and could air their differences with a judge and bailiff present instead of talking over each other online or miring the process with multiple text messages to representatives.
Any kind of trial that required showing evidence or hearing testimony did not work well remotely, the group found.
Criminal hearings are a different breed
Jeanette Boelter, mother of 21-year-old Anthony Boelter, this month attended two sentencings for the men who shot and killed her son. The first one was in person and the second was remote.
For her, confronting her son’s killer was overwhelming emotionally. She sobbed through her victim impact statement and tried not to look at the defendant. The sentencing for the second man was somewhat easier for her.
“I felt more secure,” she said. “I got to have my dog on my lap. Also, I liked being able to turn the camera on and off.”
Family members who lost a pregnant relative were more angry than sad at Clinton Roosevelt Delaney’s murder sentencing in September. They objected to Delaney appearing remotely on a screen in the courtroom, and said they felt cheated out of being able to face him in person.
Although most hearings are public, when testimony is shared, unless it’s a high-profile case, most of the people in the courtroom are known to the parties. On Zoom, some have expressed the awkwardness of talking about private anxieties knowing multiple other people not related to the case are listening in as they wait for their time with the judge.
A recent rape victim in Ramsey County District Court peered into the camera wondering who all those other people were as she stammered out an excruciatingly difficult victim impact statement.
The upside, with a caveat
For judges covering multiple counties, Zoom hearings have been a blessing. No more wasting an entire day driving from courthouse to courthouse. Multiple cases can be seen in one day, a perk now with courts digging out from pandemic backlogs.
Last week, the council met again, but made no further decisions on how hearings will be held post-pandemic, planning instead to adjust its framework on a month-by-month basis depending on the level of virus cases in the state.
This hesitation concerns some who think the council is rushing to make future decisions in an uncertain present.
“It’s real important that this not be a permanent change to the functioning of the trial courts,” said 10th District Chief Judge John Hoffman. “All this exists because of COVID. I think we’re doing this under a public health emergency and until that public health emergency has resolved itself, then, I think we should make permanent decisions about how the trial courts function.”
The council’s vice-chair, 7th District Judge Michelle Lawson, disagreed, saying now is the time to prepare for post-pandemic proceedings.
“What’s being recommended is the framework for getting there … with an eye toward not doing this because of a public emergency,” Lawson said. “We’re doing this because it serves our public, it works well with our court operations, and it’s really valuable lessons that we learned during the pandemic.”