Volume XXXVIII - October 2021

 VIDEO CONFERENCING AND VIRTUAL TESTIMONY IN CRIMINAL COURT

By: Daniel Horn and Peter Garcia

Prior to the COVID-19 pandemic, the Supreme Court of Florida acknowledged trends in remote technology and the potential for adaptation in the future. As early as 1998, the Supreme Court of Florida considered that “ perhaps the ‘virtual courtroom’ will someday be the norm in the coming millennium.” Harrell v. State, 709 So. 2d 1364, 1368–69 (Fla. 1998).  Since the start of the COVID-19 pandemic, and the resulting public health emergency, the Florida Supreme Court issued several administrative orders and procedural amendments in an effort to provide for the continual operations of trial and appellate courts. On July 29, 2021, the Supreme Court of Florida issued Administrative Order No. AOSC 21-17 “IN RE: COVID-19 HEALTH AND SAFETY PROTOCOLS AND EMERGENCY OPERATIONAL MEASURES FOR FLORIDA APPELLATE AND TRIAL COURTS.” This Order continued the Supreme Court of Florida’s expansion and availability of remote and virtual proceedings. Most notably, the Order maintains the Court’s prior rulings that “ all rules of procedure, court orders, and opinions applicable to court proceedings that limit or prohibit the use of communication equipment for the remote conduct of proceedings shall remain suspended.” This measure initially went into effect on March 13, 2020, under Fla. Admin. Order No. AOSC 20-13. Throughout the state, Florida courts have gradually followed suit and in consideration of public policy have made the “virtual courtroom” a universal part of daily procedures and trial practice. Clarington v. State, 314 So. 3d 495 (Fla. 3d DCA 2020); see also E.A.C. v. Florida, No. 4D20-2079, 2021 WL 2818155 (Fla. 4th DCA 2021).

            The changes have been especially notable in criminal cases.  Over the course of the last year, most criminal pretrial hearings and case conferences have been conducted virtually. Other critical hearings, including evidentiary pretrial motions, plea hearings, and sentencings have also been conducted remotely. During this time, defense attorneys and prosecutors have used platforms such as Zoom™, Microsoft Teams™, and Skype™ to question and cross-examine witnesses, while being able to clearly observe the demeanor of all parties and witnesses in real-time. Furthermore, many of these current platforms have technologies that allow an attorney to present documents, photos, and videos simultaneously with testimony. According to Fla. Admin. Order No. AOSC 21-17, even the actual criminal trial may be conducted remotely under the rules. In fact, many criminal non-jury trials have been conducted remotely since the start of the COVID-19 pandemic. The importance of an attorney’s familiarity and training with the proper use of such technologies cannot be overlooked. With videoconferencing now actively being used in all aspects of criminal litigation, it is increasingly important that an attorney be able to effectively communicate in the virtual courtroom setting. Considerations like compatible devices, reliable internet connectivity, separate connections, cameras, microphones, identification, and the ability to sequester witnesses to meet procedural rules are crucial for providing a proper and effective defense.

            It is important to remember that Florida and Federal law provide a criminal defendant the right to confront witnesses and accusers, this is known as the Confrontation Clause. The Confrontation Clause also requires that the accused will be heard at a meaningful time in the proceeding. However, as we have seen over the last year, these rights are not absolute. As the United States Supreme Court observed in Morrissey v. Brewer, “due process is flexible and calls for such procedural protections as the particular situation demands.” Rogers v. State, 40 So. 3d 888 (Fla. 5th DCA 2010). Likewise, the right to confront witnesses and to be heard is not absolute in terms of a “requirement for physical confrontation and is subject to exceptions for considerations of public policy.” Id. at 888. Today, the pandemic is still an ongoing concern, and Florida Courts are adapting and evolving to meet the critical needs of the criminal justice system. Therefore, your attorney’s ability to adapt and evolve to the virtual courtroom is likewise critical.

            It is more important than ever to have a qualified and experienced attorney who can safeguard your rights and protect you from criminal prosecution. At DSK Law our firm has been conducting video conferencing and remote hearings since the start of the COVID-19 pandemic. We are confident that our attorneys have fully adapted to the virtual courtroom and can give you confidence in your defense. If you have further questions or need help with any criminal matters, please contact our office.

Daniel Horn obtained his Juris Doctorate, with honors, from The University of Miami. While in law school, Daniel interned with the Office of the Chief Counsel at NASA’s John F. Kennedy Space Center. Prior to joining DSK, Daniel served as an Assistant State Attorney for the 9th Judicial Circuit in Orange County. Daniel is admitted to practice before all Florida state courts.

Peter Garcia's practice areas include insurance defense, premises liability defense, criminal defense, and sealing/expunction of records. His work ranges from providing legal advice and representation to individuals, business owners and corporations, and insurance companies on various legal issues. The focus of his pro-bono work has centered around assisting low-income individuals with sealing or expunging criminal records, to help them successfully access or maintain employment.

This article is for informational purposes only and you should seek professional legal advice before taking any action based on this article.  Further, this information is subject to change due to the rapidly changing legal, political and business environment.

Partner David Simmons was joined for this year's race by Partner Deborah Mitchell as well as Valerie David, Christina Buffington, and Caitlin Emling.

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