EMAIL YOUR COMMISSIONER HERE
The Knox County Commission should not vote to spend 1.5 million dollars on video conferencing systems for use in Juvenile Court or any other court. The expanded use of such a system is problematic for two primary reasons. First, it threatens to abridge the rights of litigants in such proceedings—particularly those with criminal charges, delinquency charges, or dependency and neglect charges. Second, the expanded use of video conferencing systems in court creates logistical hurdles which have a disparate impact on impoverished people and people of color.
- Threat to Constitutional Rights of Litigants
- The Sixth Amendment guarantees face-to-face confrontation of witnesses at trial. This Constitutional right can only be abridged for “considerations of public policy and the necessities of the case.”
- In considering “necessities of the case,” trial courts are required to hear evidence and make specific findings on the issue of whether having witnesses appear via video conference is strictly necessary in the case presently before the court.
- The Sheriff gives the following broad reasons for this expenditure:
It’ll save money
It’ll decrease the risk of being in a traffic accident while transporting prisoners
It’ll be quieter
Judges like it and will use it
- Even if completely true, the reasons given by the Sheriff are broad, not case specific, and do NOT meet the requirement that the US Supreme Court has laid out, which is case-by-case findings as to why THIS particular criminal defendant’s Sixth Amendment right may be abridged in THIS particular circumstance.
- EXAMPLE OF WHAT THE STANDARD TO ALLOW VIDEO CONFERENCING IS SUPPOSED TO LOOK LIKE:
- In the case of Maryland v. Craig, the US Supreme Court talked about the constitutionality of videoconferencing witness testimony in a criminal case. In that case, the DA wanted a six year old girl to testify via video rather than be in the courtroom testifying in front of her alleged rapist. Trial judge said “ok.” Case went all the way to the Supreme Court, who reversed the decision of the courts below and said that no, the trial judge had to hear evidence and make a finding that (a) it was being in the courtroom with that guy that was traumatizing the child, not some other reason; (b) that it was traumatizing the child so badly she couldn’t testify. A general “we might have a car accident if we transport them so we need to have all of these hearings by video” is a far cry from the kind of justification the court has to provide.
- This is the court’s actual language in that case: “The trial court must hear evidence and determine whether use of one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness. The trial court must also find that the child witness would be traumatized by the presence of the defendant. Denial of face-to-face confrontation is not needed to further the state interest in protecting the child witness from trauma unless it is the presence of the defendant that causes the trauma. Finally, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis.”
- The Tennessee Supreme Court is well aware of the Constitutional problems associated with video conferencing technology in court hearings. It is for this reason that they suspended all trials during the Covid-19 pandemic, rather than deny criminal defendants (and even most civil respondents) the right and ability to appear in court in person.
- In the case of Maryland v. Craig, the US Supreme Court talked about the constitutionality of videoconferencing witness testimony in a criminal case. In that case, the DA wanted a six year old girl to testify via video rather than be in the courtroom testifying in front of her alleged rapist. Trial judge said “ok.” Case went all the way to the Supreme Court, who reversed the decision of the courts below and said that no, the trial judge had to hear evidence and make a finding that (a) it was being in the courtroom with that guy that was traumatizing the child, not some other reason; (b) that it was traumatizing the child so badly she couldn’t testify. A general “we might have a car accident if we transport them so we need to have all of these hearings by video” is a far cry from the kind of justification the court has to provide.
- Physical Presence in a Courtroom Aids Litigants, Especially Those Without Representation
- Our courthouses are set up in such a way as to offer a variety of resources to help people with legal problems. For example, walking into the Knox County Juvenile Courthouse, you will find a rack of helpful brochures which are published by Legal Aid of East Tennessee and which address a variety of legal issues—from landlord/tenant law to domestic violence to how to deal with predatory creditors. You will find fliers on programs like Boys and Girls Club, and DCS’s Relative Caregiver Program (which exists to help kinship foster families). All of these are incidental resources that can be very helpful to people sitting in waiting rooms waiting for their turn to appear in court.
- On the other hand, video conferencing not only isolates litigants but forces them to be able to knowledgeably prepare for their hearing well in advance. Exhibits and necessary forms must be sent to the court in advance of a hearing. Witnesses not only have to be identified but have to be set up with a fully functioning computer, camera, and internet connection that won’t go out in the middle of their testimony. These are hurdles for everyone, but they are especially problematic for impoverished people, who are generally less likely to have access to up to date technology and a reliable internet connection.
- Video conferencing further isolates litigants by making it impossible for them to communicate privately with their attorneys during court proceedings. In a typical in-person hearing, a litigant is able to whisper and/or pass notes back and forth with their attorney. This is critical because it allows: (a) the litigant to tell their attorney information to help them effectively cross examine a witness or present additional evidence to the judge; and (b) the attorney to talk to their client as proceedings progress about options for how to proceed with their case.
- Disparate Impact on impoverished people and people of color
- Higher Bail Amounts
- A 1999 study in the Journal of Criminal Law and Criminology showed that bail amounts have gone up between 54% and 90%, depending on the offense, when bail hearings are conducted via videoconferencing. The results of this study and the threat of a civil rights lawsuit caused Cook County, Illinois to return to all in-person bail hearings. Knox County is currently conducting some bail hearings via video conference and this proposal says that ALL bail hearing will be by video conference.
- Disparate Internet Access
- Videoconferencing requires not just access to the internet, but high quality, stable connections.
- Access to the internet is disparate by race and disability. This is likely a function of poverty.
- Higher Bail Amounts
- 30% of homes with incomes below $30K do not own a smartphone, and 44% do not have internet at home, while households with incomes above $100K almost universally have these technologies.
- According to a study done by Pew Research Center in 2019:
- 34% of black families do not have internet at home.
- 39% of latino families do not have internet at home.
- 20% of disabled people do not have internet at home.
- Budgetary Concerns
- The 2021 Budget is $1.9 million LESS than the 2020 Budget. Where’s the $1.5 million surplus? It seems to be coming out of extremely important programs, like the Family Justice Center, which do a lot more good for Knox County citizens than a very expensive and unnecessary videoconferencing facility.