Video Hearings: The Choice ‘Between Efficiency and Rights’

After someone is arrested but not yet convicted of a crime, the next step is to appear before a judge, magistrate, or bail commissioner, who decides whether to release the person or require that they post bail in order to go free until the court date. But in Philadelphia, those arrested don’t physically appear in a courtroom during that crucial first hearing. Instead, they stay in the police booking center and their images and voices are sent to the judge, prosecutor, and public defender by video.

For Dante, a Philadelphia resident who requested that  his last name be withheld, that meant he was brought to a room full of other people and put in front of a screen after being arrested on Sept. 14 and charged with drug possession with intent to distribute. Because he hadn’t talked with his lawyer before the hearing, he didn’t speak in his own defense. He described his experience of watching the hearing this way: “They just relate to you what the police officer said and … you don’t have a chance to defend yourself, you really don’t have anyone there to help you defend yourself.”

The whole process took just minutes. “Without even looking at the evidence, [the judge] just came up with a number,” Dante recalled, speaking of the $10,000 he would have to come up with to go free. “You don’t have any say. It’s more like a judgment than it is a chance to participate in your own defense.”

In theory, defendants “should be able to see all of those court actors and in theory be able to hear them,” explained Zoe Goldberg, a coordinator with the Philadelphia Bail Fund. “But that obviously relies on consistent use of the microphones.” And in her experiences watching these proceedings, neither the prosecutor nor the public defender consistently uses them. It’s also clear that the quality of the video is low. Cal Barnett-Mayotte, another bail fund coordinator, has heard defendants misgender the judges, incorrectly calling them “sir” or “ma’am.” “That illustrates how hard it is” for them to follow what’s going on, he noted. Sometimes defendants will actually say they can’t hear what’s happening during the proceedings.

On top of that, although audio from defendants in Philadelphia reaches the judge, district attorney, and public defender via a microphone, “it’s pretty low quality,” Barnett-Mayotte said. There’s lots of static, and because defendants are in an open space without any partition from everyone else being arraigned, there’s a lot of background noise. Often the view that the audience has—and therefore, almost certainly, the judge has—is of a defendant’s forehead. “Sometimes they ask them to sit up and improve that, and other times it just goes and that’s the way it is,” Goldberg said. “It’s pretty impersonal.” The screen is about 15 to 20 feet away from the judge. Sometimes a defendant will start to ask questions and the judge will cut the feed and switch to another. Video “makes it very easy for the [judges] to just be done with it,” Goldberg said.

Anyone who needs a language interpreter has it even worse. Philadelphia bail courts use remote interpreters, so the magistrates end up calling an interpretation service on their cellphones and holding them up to the microphone, creating another layer of bad audio quality.

There used to be a phone line available for defendants to speak directly to the public defender, but that no longer exists. “The system is not set up for people to be able to have any sort of private interaction with their counsel … and no interaction with counsel before being arraigned,” Goldberg said. That means defendants haven’t had a conversation with anyone who has legal training before the hearing begins.

The Constitution’s Sixth Amendment guarantees the right to counsel in criminal prosecutions. But “what does it mean to have access to representation when you’re interacting with your lawyer over video, neither of you can really hear, see?” noted Rachel Foran, tactical organizing director at Community Justice Exchange. Goldberg and Barnett-Mayotte argue that the video system makes the whole process far too impersonal for such a significant step, which can result in dire consequences. Those who sit in jail, rather than get released until their court dates, are more likely to be convicted and to receive harsher sentences. Not to mention the potential loss of income from missing work or being overdue on rent payments, and the distress of being separated from loved ones while sitting in jail.

It was just jaw-dropping the way the video … made the person on the video screen seem like not a real person.

Locke E. Bowman Law Professor, Northwestern University

The first use of video in hearings was in Illinois in 1972, but since then it has been adopted by courts across the country. By 2002, over half of states allowed video in some type of criminal proceeding, and by 2009, 57 percent of pretrial services programs used it for initial appearances like the ones in Philadelphia.

Chicago instituted the use of video bail hearings in 1999. Over concerns of unfair disparities due to a lack of a centralized hearing system, the chief judge set up a central bond court for all people arrested in the city. Defendants were all transported to a holding area in the basement of the courthouse and then appeared before the judge via a video feed. “In the interests of speed and efficiency,” said Locke E. Bowman, a law professor at Northwestern University, “rather than bringing these people up one by one to come into the courtroom … they would be shown to this podium where they would see an image of the judge and would learn what is in effect the most important fact of their case: namely whether they were going to be able to go home or whether they were facing weeks, more likely months, in jail.” Their images were sent into a room upstairs where the judge, prosecutor, public defender, and the public sat.

The video feed of the defendants was black-and-white, shaky, and difficult to see. If a defendant wanted to address anyone in the room upstairs there was a phone he could pick up, but given the speed with which the cases moved that “didn’t remotely happen,” Bowman said. “It was just jaw-dropping the way the video … made the person on the video screen seem like not a real person.”

And it had a significant impact on outcomes. In a 2010 study, Bowman and three co-authors found that when they compared the eight years before the use of video to the eight years after, the average bail amount increased by 51 percent, or nearly $21,000. For charges that continued to have regular in-person hearings, however, there was no change in bail amounts.

Bowman eventually brought a lawsuit arguing that the process violated defendants’ constitutional right to due process and to counsel by impeding their ability to speak to public defenders and appear in person to be adequately judged. But in 2008, before the chief judge had to give a deposition in the case, he ended the process. Now people have an opportunity to speak to their counsel before a hearing and appear in person in open court. “It [feels] materially different to have the person actually present,” Bowman said. “It did not fundamentally change the character of the hearings but it eliminated a feature that was discordant, dehumanizing, and repulsive.”

In many places, though, using video for initial bail hearings is still a common practice. Beyond separating defendants from court actors, video also cuts them off from the family and friends who may show up at their hearings in support. In Philadelphia, the public defender typically finds out who in the audience is a family member, but the defendants themselves often have no idea who is there. Goldberg said she recently observed a public defender telling a client, “Your family’s here. You can’t see them but I just talked to them.”

“We know that the two things that are most vital in a bail hearing to ensuring that someone …  has the best chance of not being detained is representation, number one, and, two, showing family support and showing community ties,” Foran noted. “Video prevents that from happening.”

The use of video also separates the public from court actors. In Maricopa County, Arizona’s most populous, defendants are in a room with the judge and other court actors, but family members and the rest of the public have to sit in a waiting room and follow the proceedings on a video screen. They are unable to address the court in any way to provide reasons their loved ones should be released or simply to show that they have community support.

“The most important person to be there with defendants would be an attorney. … Second to that would be family and friends,” noted Jared Keenan, a criminal justice staff attorney with the ACLU of Arizona. “This system in general is very dehumanizing. Not allowing loved ones to be in the same room with somebody is particularly dehumanizing.”

Video hearings also present huge hurdles for outside advocates who want to hold the prosecutors and judges accountable. In Dallas—where in the wake of a 2018 lawsuit over the county’s bail practices, the county commissioners agreed to air hearings over video and placed a monitor in the county jail’s the reception area—the camera is trained just on the defendant, and the audio quality is poor. Because the public’s video screen is in a reception area with people passing in and out, “It’s very difficult to hear the audio,” said Joe Estelle, an organizer at the Texas Organizing Project. And there have been several times when the audio just wasn’t working at all. The schedule for bail hearings isn’t published, so court watchers never know when to show up.

It “does very little to let us know what’s actually going on inside the courtroom,” Estelle said. “If there’s nothing to hide, I don’t see the harm in making public what’s actually going on.” It’s so difficult that the Texas Organizing Project has postponed all court-watching efforts. “There’s hardly any evidence we can gather from there,” he said.

The same problem is true in Philadelphia, where court watchers view the proceedings over video behind a glass partition. If court actors don’t use the microphone, then people with the bail fund can’t hear. Not to mention that judges can keep some of the information, such as a high bail amount, from being public simply by not speaking about it into the microphone.

“You can’t have accountability without transparency,” Foran of the Community Justice Exchange noted. “Video in some ways can prevent transparency from being possible because of basic structural questions. … It alters the scope of what you can record.”

But transparency and technology can also go too far. In Broward County, Florida, the video feed of all bail hearings is streamed on the Sun Sentinel newspaper’s website. “People at first appearances are often [in] particularly vulnerable or aggravated states. They’ve just had their freedom stripped away from them,” noted Scott Greenberg, executive director of the Freedom Fund, a bail fund focused on LGBTQ people. During the proceedings, judges have to make sure that pleas are offered voluntarily, which means they will often ask if a defendant has been diagnosed with a mental illness or are on any medications that would prevent knowingly offering a plea. “All this really private stuff gets thrown right out on the internet,” Greenberg said.

There are some small ways that video hearings could be changed to better protect defendants’ rights. In Philadelphia, the bail fund has proposed the ability for them to speak with their legal representation privately and confidentially before the hearing, as well as simply having defendants show up in person for hearings.

But those are incremental steps, and ultimately criminal justice reform advocates’ goals are larger. “The system just needs to shrink overall. There just needs to be fewer arrests and fewer prosecutions,” Barnett-Mayotte said. “If the number of cases that it’s processing decreases, then you don’t need to make that choice anymore between efficiency and rights.”