DUE PROCESS CONCERNS IN VIDEO
PRODUCTION OF DEFENDANTS
Patricia Raburn-Remfry*
Video technology is being used in numerous jurisdictions to produce
defendants. While video production has several advantages over
physical production, this Article demonstrates that minimal standards must be nationally promulgated to insure that defendants
who are electronically produced are not deprived of fundamental
due process rights.
I. INTRODUCTION
Justice Scalia noted in Coy v. Iowa1 that the right to confront
one's accusers is an ancient right.2 This right of physical confrontation can be traced back to Roman times.3 Scholars argue that this
right was recognized in Medieval England before the right to trial by
jury.4 In the United States, the right of confrontation has evolved
into two types of protection: the right to physically face those who
testify against the accused and the right to conduct cross-examination.5 Both rights are protected by the Sixth Amendment to the
* B.A., University of Missouri, M.L.S., Columbia University, J.D., Seton Hall
University. Patricia Raburn-Remfry has been a prosecutor in both state and federal jurisdictions. She is presently working in the Reference Department of the Hofstra University Law School Library.
This Article is dedicated to her father, Louis Raburn, who has always encouraged
his children to pleasure their minds and spirits.
1. 487 U.S. 1012 (1988).
2. Id. at 1015. See also California v. Green, 399 U.S. 149, 173–74 (1970) (Harlan,
J., concurring) (suggesting that “the Confrontation Clause comes to us on faded parchment”).
3. “The Roman Governor Festus, discussing the proper treatment of his prisoner,
Paul, stated: `It is not the manner of the Romans to deliver any man up to die before
the accused has met his accusers face to face, and has been given a chance to defend
himself against the charges.'” 487 U.S. at 1015–16 (quoting Acts 25:16).
4. Id. at 1016 (citing Daniel H. Pollitt, The Right of Confrontation: Its History and
Modern Dress, 8 J. PUB. L. 381, 384–87 (1959)).
5. Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987) (citing Delaware v. Fensterer,
474 U.S. 15, 18–19 (1985)).
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United States Constitution.6
Justice Scalia also commented in Coy that the Sixth Amendment guarantee of a face to face encounter between the witness and
the accused serves ends related to both appearances and to reality. 7
Something deep within the human psyche regards face to face confrontation between the accused and the accuser as essential to a fair
trial in a criminal prosecution.8
The Sixth Amendment mandates that criminal justice administrators produce defendants at various court proceedings.9 In addition, the Supreme Court has held that a defendant must be present
to confront his adversaries at all stages of the proceedings where his
absence might frustrate the doctrine of fundamental fairness.10 Recently, courts have seen the rights of presence and confrontation as
coterminous with the right of cross-examination,11 which can be
restricted for policy reasons.12
Despite the ancient lineage of the right of confrontation, incarcerated detainees13 and prisoners are routinely physically produced
in a less than dignified manner. For example, in the summer of
1988, approximately 2,000 pre-trial detainees were awakened by
guards at the Los Angeles County Jail at 4:00 A.M. and funneled
down to the Inmate Reception Center where they awaited segregation before being transported to court.14 Note the enlightening yet
6. U.S. CONST. amend. VI provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime
shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to
be confronted with the witnesses against him; to have compulsory process for
obtaining witnesses in his favor, and to have the Assistance of Counsel for his
defense.
Id.
7. Coy, 487 U.S. at 1016.
8. Pointer v. State of Texas, 380 U.S. 400, 404 (1965).
9. See, e.g., Kentucky v. Stincer, 482 U.S. 730 (1987); Snyder v. Massachusetts,
291 U.S. 97 (1934); Lewis v. United States, 146 U.S. 370, 372 (1892).
10. Faretta v. California, 422 U.S. 806 (1975).
11. People v. Grant, 755 P.2d 894 (1988), cert. denied, 488 U.S. 1050 (1989).
12. Maryland v. Craig, 497 U.S. 836 (1990).
13. Detainees are pre-trial prisoners whose guilt has not yet been established. They
are incarcerated to insure their presence at trial, thus they are entitled to the least
restrictive alternatives consistent with the purpose of their incarceration. Brenneman v.
Madigan, 343 F. Supp. 128, 138 (N.D. Cal. 1972).
14. Mark Thompson, L.A.'s Rolling Lockup, 9 CAL. LAW. 36, 36 (1989). Of the 2,000
detainess transported from jail to court each day, sheriffs must insure that rival factions
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graphic description given by Judge Gray in Rutherford v. Pitchess:
The [detainees were placed in] holding cells [approximately] fourteen by fourteen feet . . . , and the only furnishing is a toilet. The
early arrivals in the cell are able to lie or sit on the concrete floor,
but as more men are added this becomes increasingly difficult and,
eventually impossible.
The men stay in the holding cell for about an hour, and
then, . . . , the chaining process begins. The inmates from a particular holding cell form a line in the adjacent corridor. There they are
handcuffed, and then the handcuffs of each four men are connected
with a chain. The line thereupon moves gradually to the nearby
parking lot and the men board the bus in such manner that two
men of each group of four are seated immediately in front of the
other two, with the connecting chain passing over the back of the
seat that separates them. A little more than an hour after the start
of the boarding process, the buses begin to roll, and the time of the
ensuing trip ranges from a few minutes to more than an hour . . . .
At the end of the court day, . . . the reverse process begins.
After the return bus ride, a shakedown examination, another substantial wait in a holding cell, and the evening meal, the men finally are returned to their cells . . . . 15
On a typical day only thirty-five of the 2,000 inmates bused to court
would go to trial,16 for a majority of these appearances did not involve the cross-examination of prosecution witnesses.17 For more
than a decade, the physical production procedures of pre-trial
detainees by the County of Los Angeles have been the subject of
federal litigation, and, by the admission of at least one county attorney, these procedures barely comport with minimal due process
are not intermingled. For example, the “Crips” must be separated from the “Bloods.”
Law enforcement officials also must provide special protection to homosexuals, transvestites, jailhouse informants, psychiatric cases, and prostitutes. Id. at 37.
15. Rutherford v. Pitchess, 457 F. Supp. 104, 113–14 (C.D. Cal. 1978). Conditions
have improved little in the past decade, although the number of detainees produced each
day has more than doubled. See Thompson, supra note 14, at 40. The procedures were
essentially the same in 1988 as 1978. Id. at 39.
16. See Thompson, supra note 14, at 37.
17. COUNTYWIDE CRIMINAL JUSTICE COORDINATION COMMITTEE, COUNTY OF LOS ANGELES, CENTRAL COURTS VIDEO PROJECT at 3 (1991). The vast majority of prisoners are
transported for proceedings such as pre-trial hearings, arraignments, continuances,
discovery, and bail review. Id.
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requirements.18
By contrast, in Riverside County, California, in 1987, arrestees
were electronically produced at the county arraignment court19 from
the Riverside jail.20 Both misdemeanor and felony detainees were
gathered in the Riverside Chapel, where video equipment linked the
jail to the courthouse.21 Prior to appearing on a courthouse monitor
before the arraignment judge, the detainees, en masse, were shown
a prerecorded tape of a municipal court judge on a jailhouse monitor.22 In this tape, the municipal court judge informed the detainees
of their due process rights should they go to trial.23 After the tape
was shown, a live arraignment judge appeared on the monitor and
individually arraigned the detainees.24
Misdemeanants were electronically produced at the discretion of
the court25 without the benefit of counsel being physically present
beside the accused.26 The misdemeanants were given the opportunity to plead guilty upon the signing of a written waiver of certain due
process rights, including the right to a trial by a jury of their peers
at which they could confront and cross examine their accusers.27 Felons were electronically produced in the afternoon, but only after
18. See Thompson, supra note 14, at 38. Fred Bennet, Assistant County Counsel,
after an early morning tour of the Inmate Reception Center in Los Angeles, stated: “I
can't lie about this. There are too many witnesses. This is just barely at or above constitutional standards. That's about the best you can say.” (emphasis added). Id.
19. Since 1981, video misdemeanor arraignments have been conducted in San Diego, California. Subsequently numerous other counties in California implemented video
arraignment procedures. The California legislature extended authorization for video production to felony arraignments in 1983. 1983 Cal. Stat. 197 (current version at CAL.
PENAL CODE § 977(c) (West 1985 & Supp. 1994)). See Appendix A for statutory authority.
20. Joint Appendix at 125, County of Riverside v. McLaughlin, 111 S. Ct. 1661
(1991) (No. 89-1817).
21. Id.
22. Id.
23. Id.
24. Id.
25. California law has recently been amended so that both misdemeanants and
felons are produced only upon waiver of their right to be physically produced. See CAL.
PENAL CODE § 977(b) (West 1985 & Supp. 1994), as amended by 1992 Cal. Stat. 264,
863. See Appendix A.
26. Joint Appendix at 120–25, McLaughlin (No. 89-1817).
27. See Boykin v. Alabama, 395 U.S. 238, 246 (1969) for a discussion of the rights
waived by a defendant upon entry of a guilty plea. See also William F. McDonald, Judicial Supervision of the Guilty Plea Process: A Study in Six Jurisdictions, 70 JUDICATURE
203, 204 (1987).
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waiver of their right to be physically produced,28 and with counsel
beside them in the jail.29 After this process, felons were ordinarily
held over for Grand Jury indictment.30
The video production procedures in Riverside County are seemingly more humane than the physical production of defendants in
Los Angeles County, and certainly more convenient for the court and
jail administrators.31 It is questionable, however, whether the detainees' due process rights of confrontation and cross-examination,
as well as their right to counsel, are adequately met in these proceedings where only their electronic presence confronts the prosecution and the court and where they are allocuted by a taped message.
In addition, the Riverside procedure may not comport with other due
process rights, including the right to a public forum, the right to an
accurate record for the purpose of appeal, and freedom from testimonial compulsion. These issues require consideration in a national
forum because of the acceleration in video production of defendants
in jurisdictions throughout the United States.
While most jurisdictions which use video for production of defendants limit its use to arraignments, the state of Missouri recently
passed a prisoner production statute which authorizes video production for all court proceedings not requiring cross-examination.32 The
Missouri Supreme Court found this statute constitutional.33 The
California Supreme Court also upheld the constitutionality of a statute allowing detainees to waive their right to physical production at
pre-trial proceedings not requiring cross-examination.34 Both cases
addressing this issue were appealed to the United States Supreme
Court, which denied certiorari in both instances. The Supreme
28. The California Penal Code provides, within the statute itself, forms for the
written waiver of the right to be physically present at the arraignment. CAL. PENAL
CODE § 977 (West 1985 & Supp. 1994).
29. Joint Appendix at 125, McLaughlin (No. 89-1817).
30. Misdemeanants plead in order to receive time served or a fine. Felons, who are
subject to jail time, necessarily want to learn the weight of the prosecutor's case through
pre-trial discovery prior to admitting guilt.
31. In January of 1992, Los Angeles County implemented video arraignments as
part of its modernization of its central court system. See COUNTYWIDE CRIMINAL JUSTICE
COORDINATION COMMITTEE, COUNTY OF LOS ANGELES, CENTRAL COURTS VIDEO PROJECT at
3 (1991).
32. MO. REV. STAT. § 561.031 (1988 & Supp. 1993).
33. Guinan v. State, 769 S.W.2d 427, 430–31 (Mo.), cert. denied, 493 U.S. 900
(1989).
34. People v. Grant, 755 P.2d 894 (Cal. 1988), cert. denied, 488 U.S. 1050 (1989).
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Court did, however, accept certiorari in Maryland v. Craig,35 where
the State of Maryland sought to overturn a lower court's nullification of its child witness video production statute.36 A divided court
held that video production was an accepted court procedure when
necessary to further an important public interest, such as the protection of children from abuse.37 The facilitation of the processing of
detainees and prisoners is of great public concern;38 however, foresight and planning are needed to insure that justice is done through
the medium of video production.
35. Maryland v. Craig, 497 U.S. 836 (1990).
36. MD. CTS. & JUD. PROC. CODE ANN. § 9-102 (Supp. 1993).
37. Craig, 497 U.S. at 845. The law is well settled that a state's interest in “the
protection of minor victims of sex crimes from further trauma and embarrassment” is
compelling. Globe Newspaper Co. v. Superior Ct., 457 U.S. 596, 607 (1982). See also New
York v. Ferber, 458 U.S. 747, 756–57 (1982); FCC v. Pacifica Found., 438 U.S. 726,
749–50 (1978); Ginsberg v. New York, 390 U.S. 629, 640 (1968); Prince v. Massachusetts,
321 U.S. 158, 168 (1944).
The Craig majority cited Osborne v. Ohio, 495 U.S. 103 (1990), in which the
Court upheld an Ohio statute that prohibited possessing and viewing child pornography.
By upholding this statute, the Craig court reaffirmed that “it is evident beyond the need
for elaboration that a State's interest in `safeguarding the physical and psychological
well-being of minor' is `compelling'.” Craig, 497 U.S. at 852–53 (quoting Osborne, 495
U.S. at 109 (quoting Ferber, 458 U.S. at 756–57)). The Craig majority also cited Mattox
v. United States, 156 U.S. 237, 243–44 (1895), and noted that there has been a public
interest exception to the right of confrontation for almost a century:
To say that a criminal, after having once been convicted by the testimony of a
certain witness, should go scot free simply because death has closed the mouth
of that witness, would be carrying his constitutional protection to an unwarrantable extent. The law in its wisdom declares that the rights of the public
shall not be wholly sacrificed in order that an incidental benefit [the right to
confrontation] may be preserved to the accused.
497 U.S. at 848 (1990) (quoting Mattox, 156 U.S. at 243).
38. Judge Jane B. Lucal, The Quiet Revolution: Computerization of Court Systems
for the 21st Century, 14 OHIO N.U. L. REV. 169, 169–70 (1987). Judge Lucal, of the Ohio
Court of Common Pleas, stated in her Article:
Recent statistics [on civil and criminal caseloads from the National Center for
State Courts in Williamsburg, Virginia indicate that] [i]n the past 35 years . . .
there has been an increase in civil filings of 184 percent and in criminal filings
of 143 percent. Between 1977 and 1981 definitive statistics indicate that total
filings in state courts are increasing at a much faster rate than population.
While population increased during those years at 4 percent, civil filings increased by 23 percent and criminal filings by 29 percent.
[Yet] courts in the United States, by and large, have not taken steps from the
quill pen and leather-bound case log to much more advanced means of managing information about the business of court. Since the courts continue to function at least a decade behind their counterparts in private industry, public confidence in the system of justice may be subject to serious concern and erosion.
Id. (citations omitted).
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II. ADVANTAGES OF VIDEO PRODUCTION
For close to three decades, criminal justice administrators in
numerous jurisdictions have utilized video equipment to produce
detainees electronically.39 Fax40 and telephone equipment41 are also
used on an experimental basis; however, a review of the literature
written by court administrators shows that video production is becoming more popular in criminal courts throughout the nation.42
This literature reflects the success that these administrators have
had with the use of video equipment.43 For example, a study by the
Miami Dade Criminal Justice Council states that Dade County court
administrators have discovered that video production improves
39. See City of Las Vegas Municipal Court Implements Televised Arraignment Program, 17 CT. REV. 18 (1979) (conducting video arraignments since 1979); Warren H.
Gilmore, Arraignment by Television: A New Way to Bring Defendants to the Courtroom,
63 JUDICATURE 396 (1980) (conducting video arraignments since 1979); Philadelphia's
Popular Police “Station,” TARGET, Mar.–Apr. 1979, at 1 (conducting video arraignments
since 1969).
40. See Susan McRae, Fax Arraignments Being Tested in San Diego Court, L.A.
DAILY J., May 1, 1991, at A1.
41. See J. Allison DeFoor II & Robert N. Sechen, Telephone Hearings in Florida, 38
U. MIAMI L. REV. 593 (1984). See also Roger A. Hanson et al., Telephone Conferencing in
Criminal Cases, 38 U. MIAMI L. REV. 611 (1984).
42. Numerous jurisdictions have been authorized to conduct video arraignments, including:
1) Fairbanks, Alaska, pursuant to ALASKA CRIM. R. 38.2;
2) Maricopa and Pima, Arizona, pursuant to ARIZONA R. CRIM. P. 14.2;
3) Numerous counties in California, including Riverside, San Bernardino, and
Glendale, pursuant to CAL. PENAL CODE § 977 (West 1985 & Supp. 1994);
4) Dade and Pinellas Counties, Florida, pursuant to FLA. R. CRIM. P. 3.160;
5) Ada County, Idaho, pursuant to IDAHO CT. R. 43.1; and
6) Cole County, Missouri, pursuant to MO. REV. STAT. § 561.031 (1988 & Supp.
1993).
As of this writing, the United States Congress has yet to promulgate similar authorization for video production under the Federal Rules of Criminal Procedure. See FED. R.
CRIM. P. 10, 43.1.
43. The following are but a few of the innumerable articles praising the use of
video for arraignment proceedings in state court systems. City of Las Vegas Municipal
Court Implements Televised Arraignment Program, supra note 39 (Nevada); Extension of
Arraignments by Video Sought, L.A. TIMES, June 25, 1987, at I1 (California); Gilmore,
supra note 39 (Idaho); Sentencing Via Television Doesn't Change Results, Study Shows,
FROM THE STATE CAPITALS, April 28, 1986 at 2 (Alaska); Supervisors Support TV Arraignment Test to Reduce Court Cost, L.A. TIMES, Nov. 4, 1987, at B4 (California); Jim
Van Landingham, Microwave Network Improves Court Security and Reduces Manpower,
26 CT. REV. 18 (1988) (Florida).
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court security,44 cuts court costs,45 expedites arrest processing,46 and
provides an accurate and instantaneous record.47 A further advantage of video is that the release of detainees at the jail, rather than
the courthouses, results in fewer indigents milling around the courthouses.48
Court administrators in other jurisdictions note that corrections
and court personnel are less fearful of the detainees because the
detainees are no longer transported through open parking lots and
unsecured corridors adjacent to courtrooms.49 Court administrators
also argue that defendants prefer electronic production to physical
production because it results in less physical and emotional stress.50
Despite innumerable reports extolling the advantages of video
production, an important study recently published by Judge Karl
Grube demonstrates that if improperly used, video technology can
substantially impair fundamental rights owed to defendants in pretrial proceedings.51 While Judge Grube's article reviewed defects in
the plea taking of misdemeanants during weekend arraignments in
Pinellas County, Florida, his criticisms of the abuse of technology in
pre-trial proceedings hold true for all phases of production in court
proceedings.52
44. Office of the Miami-Dade Criminal Justice Council, Evaluation of the Use of
Video in Misdemeanor First Appearances at 1, 2 (1982) [hereinafter Miami-Dade Report].
45. At an annual cost of about $27,700 for video production, the court administrators were able to eliminate the services of a court reporter and a court liaison and reduce the hours of correctional officers and the staff of the clerk's office. Id.
46. Id. at 2, 10.
47. Id. at 29.
48. Miami-Dade Report, supra note 44.
49. Sgt. Schifko of the Fairfax County, Virginia, Sheriff's Office stated that he favored video production over physical production to circumvent the obvious dangers presented to the police and other detainees by those addicted and mentally unbalanced.
Camera-Ready Inmates: Fairfax Will Use Videos To Arraign Prisoners, WASH. TIMES, July
16, 1990, at C1.
50. See, for example, the following court reports from California: San Bernardino:
SAN BERNANDINO COUNTY MUN. CT. AND SHERIFF'S DEP'T, TWO-WAY ELECTRONIC AUDIOVIDEO ARRAIGNMENT PROJECT 17 (1985); San Diego: JOHN H. WITT, CITY OF SAN DIEGO,
VIDEO ARRAIGNMENT PROGRAM FOR SAN DIEGO COUNTY 2 (Feb. 1983).
51. Honorable Karl B. Grube, Electronic Plea Taking at Florida's Weekend First
Appearance Hearings: Weekend Justice or Weakened Justice?, 21 STETSON L. REV. 329
(1991). Judge Grube is a Senior County Judge in Pinellas County, Florida. He is currently serving on the Florida Bar's Committee on Rules of Judicial Administration. He
has served as Chairperson for the ABA Conference on Special Court Judges.
52. Video is currently being used in Missouri for prisoner production in all court
appearances not requiring cross-examination. MO. REV. STAT. § 561.031 (1988 & Supp.
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The use of video for court production in the foreseeable future
will rapidly accelerate because of the need for cost controls in criminal courts and because of the Supreme Court's acceptance in Maryland v. Craig of video as a witness production tool.53 The purpose of
this Article, therefore, is not to recommend retreat from automating
production, but rather to insist that uniform standards be promulgated which adequately afford defendants their due process rights.
III. AFFORDING DUE PROCESS TO DEFENDANTS
PRODUCED ELECTRONICALLY
The United States Supreme Court has struck down state court
procedures that are inherently prejudicial.54 Such prejudice arises
where an unacceptable risk exists that impermissible factors that
might erode the presumption of innocence may come into play.55
Courts should not uphold guilty verdicts which are the products of
inherently prejudicial procedures unless those procedures are necessary to further a compelling state interest.56 Thus in Craig, a split
Court57 validated Maryland's child witness video production stat
1993). It is also suggested for detainee production in all non-trial appearances in Los
Angeles, California. See Thompson supra, note 14, at 36, 39–40.
53. 497 U.S. 836 (1990). In Craig, a divided court approved the use of video equipment for the production of children traumatized by sex crimes. Id. at 845.
54. Estes v. Texas, 381 U.S. 532, 542–52 (1965). In Estes, the Court reversed the
conviction because of the televising of the pre-trial hearings and because the trial created a circus-like atmosphere. Id. In a five to four decision, the Court ruled that televising criminal proceedings was potentially so prejudicial that the proceedings inherently
lacked due process. Id.
Subsequently, in Chandler v. Florida, 449 U.S. 560, 570–83 (1981), the Court
retreated from the ban imposed in Estes. The Chandler Court announced that there was
no per se rule against televising criminal proceedings. Id. Televising would be permissible if conducted pursuant to carefully crafted guidelines, which would include a prohibition against the filming of the jury itself and restrictions on the type and manner of
equipment used so that the televising would be unobtrusive. Id.
55. Estelle v. Williams, 425 U.S. 501, 505 (1976). In Estelle, the Court struck down
a conviction where an indigent defendant appeared before the jurors in prison garb because he could not afford to make bail. Id. The Court found that the state's refusal to
provide the defendant with civilian clothing interfered with the defendant's presumption
of innocence because: 1) the garb reminded the jury that the defendant was currently
incarcerated; 2) the garb furthered no essential state policy; and 3) the garb operated
against those who could not afford to post bail before trial. Id.
56. See Holbrook v. Flynn, 475 U.S. 560, 568–69 (1986). In Holbrook, the use of a
large number of security guards was deemed necessary to prevent disruptions both within and without the courtroom. Id.
57. Maryland v. Craig, 497 U.S. 836 (1990). In Craig, Justice O'Connor wrote for
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ute because the Maryland statute provided for a hearing on the
necessity for the substituted appearance.58 In a dissent joined by
Justices Brennan, Marshall, and Stevens, Justice Scalia argued that
the Court should have invalidated the Maryland statute because
video testimony is a weak substitute for live testimony that, under
the Confrontation Clause, can only be employed when the witness is
actually unavailable.59
A review of the arraignment statutes of Florida and California
and the Missouri prisoner production statute reveal divergence, not
only in the procedures, but also in personnel deployment, equipment
lay out, and record keeping. Such divergences should be carefully
scrutinized by the defense bar, for, as the dissent in Craig pointed
out, the failure of the state to enact procedures assuring the reliability of evidence adduced therefrom violates the Confrontation
Clause.60 This Article illustrates how variations in the Pinellas
County, Florida, misdemeanor arraignment procedures61 afford less
protection than those of Dade County, Florida.62 This Article also
touches upon the lesser rights afforded to prisoners in Missouri under that state's recently enacted video production statute.63
Before assessing whether video production procedures are potentially so inherently prejudicial that electronic plea taking, sentencing, and other proceedings64 should not be permitted for the
sake of mere convenience, it is necessary to examine the due process
rights that may be adversely affected by substituting an electronic
image for the defendant's presence. It is also necessary to examine
how variations in the video production and processing of defendants
may adversely affect defendants' due process rights in arraignment
and sentencing procedures.
the majority, while Justices Brennan, Marshall, and Stevens joined in Justice Scalia's
dissent.
58. Id. at 836.
59. Id. at 865 (Scalia, J., dissenting).
60. Id.
61. See Grube, supra note 51, at 370–72.
62. Jeffrey M. Silbert et al., The Use of Closed Circuit Television for Conducting
Misdemeanor Arraignments in Dade County, Florida, 38 U. MIAMI L. REV. 657 (1984).
63. MO. REV. STAT. § 561.031 (1988 & Supp. 1993). See Appendix B.
64. Missouri's video production statute provides that prisoners shall be electronically produced for all post-trial proceedings at which cross-examination is not required,
including habeas petitions and petitions for judgment notwithstanding verdict. MO. REV.
STAT. § 561.031 (1988 & Supp. 1993).
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IV. POTENTIAL OF VIDEO TO ADVERSELY AFFECT
DUE PROCESS RIGHTS
In the introduction to this Article, the video arraignment procedures of Riverside County, California were discussed.65 One of the
detainees arraigned in Riverside County in August 1987 was Donald
Lee McLaughlin.66 Because of overcrowding at the Riverside jail, it
took more than thirty-six hours for Riverside County officials to
produce McLaughlin.67 McLaughlin, in a class action, challenged the
unreasonable delay in his arraignment.68 A federal district court
judge agreed with McLaughlin and ordered his immediate release.69
The Ninth Circuit affirmed the district court order releasing
McLaughlin, finding the lengthy delays allowed under California
law impermissible.70 The United States Supreme Court concurred
with the Ninth Circuit's analysis that under Gerstein v. Pugh,71 the
California statute authorizing delays in arraignment of up to 120
hours was unconstitutional.72 The Supreme Court did not comment
on the legality of Riverside's video arraignment procedures, although the method of production was described at length in the joint
appellate record submitted to the Court.73 Rather, the Court chose to
examine promptness in the context of the probable cause hearing,
citing Gerstein v. Pugh as controlling, even though that case clearly
does not mandate production at a probable cause hearing.74
The Court's avoidance of this issue is unfortunate because the
McLaughlin suit provided an opportunity for the Supreme Court to
65. See supra text accompanying notes 19–31 for a discussion of Riverside County's
production procedures.
66. McLaughlin v. County of Riverside, 888 F.2d 1276, 1277 (9th Cir. 1989).
67. Id.
68. Id. at 1278.
69. Id. at 1279.
70. Id.
71. 420 U.S. 103 (1975). Gerstein held that the probable cause hearing could be an
ex parte examination of the accusatory instrument by an impartial judicial officer in the
absence of counsel. Id. at 112.
72. In County of Riverside v. McLaughlin, 111 S. Ct. 1661, 1670 (1991), the United
States Supreme Court reversed the Ninth Circuit's decision in part when it determined
that 48 hours, rather than 36 hours, was the outer limit of promptness.
73. Joint Appendix at 120–25, County of Riverside v. McLaughlin, 111 S. Ct. 1661
(1991) (No. 89-1817).
74. Gerstein, 420 U.S. at 112.
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nullify or endorse video production procedures combining the setting
of bail and the taking of pleas that routinely occur at arraignments75
in California and other jurisdictions throughout this nation.76 In
Boykin v. Alabama,77 the Supreme Court held that such pleas are
considered the legal equivalent of a trial on the merits.78 Further,
the Boykin Court held that waivers are constitutionally permissible
as long as the local court establishes a record79 demonstrating that
the defendant has knowingly80 and voluntarily pled81 and that he
understood that he was relinquishing certain due process rights, including his privilege against compulsory self-incrimination, his right
to trial by jury, and his right to confront his accusers.82 The Boykin
Court did not address the propriety of using a written plea form83
distributed by either jail or court personnel, rather than individually
addressing a defendant on the record in accepting a plea of guilty or
nolo contendere, nor the propriety of taking such a plea in the absence of counsel.
En masse allocutions have been held constitutional by state
courts.84 Federal courts have held that it is proper for a defendant to
take a plea in the absence of counsel where that defendant has the
right to subsequently withdraw his or her plea upon the advice of
counsel.85 This author questions the wisdom of these decisions, be-
75. A presidential commission found that in eight states, the federal district courts,
and the District of Columbia an average of 87% of the detainees plead guilty. COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, THE CHALLENGE OF A FREE
SOCIETY 9 (1967).
76. A.L.I. MODEL CODE OF PRE-ARRAIGNMENT PROCEDURES § 310 (1980).
77. 395 U.S. 238 (1969).
78. Id. at 242.
79. Id. See also Carnley v. Cochran, 369 U.S. 506, 516 (1962) (stating that “[t]he
record must show, or there must be an allegation and evidence which show, that an
accused was offered counsel but intelligently and understandingly rejected the offer”).
80. Boykin, 395 U.S. at 238 (citing Cochran, 369 U.S. at 516 for the proposition
that “[a]nything less is not a waiver”).
81. Id. at 242.
82. Id. at 243. See Pointer v. State of Texas, 380 U.S. 400 (1965).
83. There is no mandate that the defendant state on the record that he or she can
read and understand English, which is unfortunate given the high percentage of illiteracy among the indigent poor appearing in criminal courts.
84. See, e.g., Swensen v. Municipality of Anchorage, 616 P.2d 874 (Alaska 1980);
Mills v. Municipal Ct. for San Diego Jud. Dist., 515 P.2d 273, 279 (Cal. 1973); State v.
Medenwaldt, 341 N.W.2d 885 (Minn. Ct. App. 1984); State v. Hausen, 384 N.W.2d 651
(N.D. 1986); State ex rel. McEver v. Yakima County Dist. Ct., 596 P.2d 304 (Wash. Ct.
App. 1979).
85. See, e.g., Vitoratos v. Maxwell, 351 F.2d 217 (6th Cir. 1965). In Vitoratos, the
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cause studies indicate that en masse allocution is less effective than
individual allocution.86 Furthermore, it is highly unlikely that a
public defender would recommend the wholesale recusal of guilty
pleas by his or her clients without criticism by the sentencing court,
which is conceivably as interested in disposing of the cases on its
calendar as insuring that any particular defendant received the best
deal possible for “copping” a plea.87
While federal courts have developed a set of procedures governing the acceptance of pleas,88 no specific uniform set of procedures
has been constitutionally imposed upon the states.89 This lack of federal guidance for the state courts has permitted a diversity of procedures in the taking of pleas at in personam appearances.90 As to
electronic plea taking, federal courts have not resolved the issue of
whether it is proper to take misdemeanor pleas from electronically
produced detainees, although such pleas have been authorized by
several state appellate courts.91 The absence of federal guidance has
led to a lack of uniformity not only in the pleading phase,92 but also
in the manner in which the video equipment is set up,93 the type of
Sixth Circuit upheld the state court's practice of taking pleas from indigents at arraignment without the benefit of counsel, finding that arraignments are a non-critical proceeding. Id. at 221. The Sixth Circuit found that because the Ohio Statutes allowed the defendant to change his plea upon appointment of counsel, the defendant was not deprived
of his right to counsel at critical stages of the prosecution, such as trial or sentencing.
Id. at 221; see OHIO REV. CODE ANN. § 2943.03 (Anderson 1993).
86. See, e.g., McDonald, supra note 27.
87. Under the Individual Assignment System (IAS), the judge has the ultimate
responsibility for case management and disposition. Once a case is assigned to a judge,
it remains on his or her calendar until disposed of by a plea or dismissal. All conferences as well as motion practice occur before that judge. Because union rules prescribe the
number of hours court personnel work, judges must constantly minimize the number of
litigants that appear before them if they are to finish their calendars by the close of the
business day.
88. FED. R. CRIM. P. 11 (1993).
89. See McDonald, supra note 27, at 204.
90. McDonald, supra note 27, at 204.
91. Guinan v. State, 769 S.W.2d 427 (Mo.), cert. denied, 493 U.S. 900 (1989); Commonwealth v. Terebieniec, 408 A.2d 1120 (Pa. Super. Ct. 1979).
92. Gilmore, supra note 39, at 400. In Boise, Idaho, for example, both felons and
misdemeanants are electronically produced at arraignment. Id. With regard to felons, the
court will only accept a plea of not guilty. However, for misdemeanants, the court does
accept pleas of guilt and will sentence misdemeanants as long as appropriate waivers
have been signed. Id.
93. In Pinellas County, Florida, the audio recorder, which was not hooked up to
the video projection system, did not properly record the pleas, thereby violating the
Boykin mandate that a record be kept of the plea taking procedure. See Boykin, 395 U.S.
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record that is preserved,94 the need for a waiver of appearance, the
location where pleading takes place, and the functional availability
of defense counsel.95 This diversity exists even among county courts
that are subject to the same state code of criminal procedures and
rules of criminal proceedings.96
A. Variations in Local Procedures Can Have Significant Adverse
Impact on Defendant's Due Process Rights
1. Pre-trial Proceedings
a. Procedures in Dade County, Florida
The Dade County Criminal Justice Counsel in the Eleventh
Judicial Circuit of Florida implemented video arraignments in
1983.97 Initially, only misdemeanants were arraigned by video.98 The
program proved so successful that the court administrators soon
thereafter permitted arraignments on criminal court felony complaints via video cameras.99 Unlike the California Code, the Florida
Court Rules authorize the discretionary production of both felons
and misdemeanants.100 Ordinarily, in Dade County, the arraignment
judge advises the defendants en masse of their constitutional rights
before inquiring into probable cause and setting bail.101 Felons are
routinely held over for probable cause hearings; however, there is a
at 244.
94. In Boise, Idaho, only the audio portion of the arraignment is preserved.
Gilmore, supra note 39, at 399. In contrast, Dade County, Florida, preserves a split
screen audio-visual tape which depicts the communication between the detainee in the
jail and the judge in the courtroom. Miami-Dade Report, supra note 44, at 9.
95. As previously stated, until recently in California, felons had the right to refuse
electronic production while misdemeanants did not. CAL. PENAL CODE § 977 (West 1985
& Supp. 1994), as amended by 1992 Cal. Stat. chs. 264, 863. See supra note 19.
96. In Dade County, Florida, counsel is provided at the cell block. Miami-Dade
Report, supra note 44, at 7. In contrast, in Pinellas County, Florida, functional counsel
is not provided for detainees either at the jail or in the courtroom. Grube, supra note 51,
at 369.
97. See Silbert, supra note 62.
98. Note that video production was initially authorized pursuant to an administrative court order rather than by the Florida legislature. See Admin. Order No. 83-6, Eleventh Judicial Circuit, Dade County, Fla., Feb. 9, 1983.
99. FLA. R. CRIM. P. 3.160. See Appendix C.
100. Id.
101. Interview with Cathleen Witkins, Assistant Administrator of the Dade County
Courts (October 16, 1992).
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provision in the Rules of Criminal Procedure for felons to waive
prosecution under the information and to plead guilty at the
arraignment.102 Misdemeanants are given the opportunity to plead
guilty in exchange for reduced charges and/or a reduced sentence.103
Dade County provides a public defender at the jail who advises
detainees of their due process rights and negotiates plea bargains
for those misdemeanants who chose to plead guilty.104 A second public defender who consults with the judge and prosecutor is located in
the courtroom.105 The public defenders communicate on a secured
phone line running between the jail and the courthouse.106 Prior to
pleading, misdemeanants execute a written waiver which ostensibly
assures the court that the detainees understand the constitutional
rights that they are waiving by a plea of guilt, including the right to
refuse electronic production.107 These forms are completed in the jail
cell under the watchful eye of the jailhouse guards,108 but the presence of counsel, hopefully, assures that the full ramifications of this
waiver are understood by those signing these forms.
The equipment utilized in Dade County is sophisticated compared with that used in the other jurisdictions surveyed in this Article. The judge has before him a forty-five inch color monitor; the
system projects and records split screen images.109 This equipment
also has a microphone mixer which controls the audio input from the
various microphones in the system.110 The arraignments are
simultaneously transmitted and videotaped.111 The split screen
video-tape of the jail and courthouse proceedings becomes the official court record of the arraignment.112
102.
103.
104.
105.
106.
107.
108.
109.
110.
111.
112.
FLA. R. CRIM. P. 3.160(c).
FLA. R. CRIM. P. 3.170(a).
See interview with Witkins, supra
See interview with Witkins, supra
See interview with Witkins, supra
See interview with Witkins, supra
See interview with Witkins, supra
See Silbert, supra note 62, at 658.
See Silbert, supra note 62, at 658.
See Silbert, supra note 62, at 658.
See Silbert, supra note 62, at 657.
note
note
note
note
note
101.
101.
101.
101.
101.
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b. Procedures in Pinellas County, Florida
Although the same administrative ruling that authorized video
arraignments in Dade County also authorized video production in
Pinellas County, Florida,113 the procedures used by Pinellas County
are quite different from those used in Dade County.114 A study of
Pinellas County weekend misdemeanant115 arraignment procedures
indicates that administrators in this county keep only an audio record of the arraignment proceedings,116 and that a public defender is
not functionally available at either the court or jail.117
The unavailability of counsel at arraignment proceedings stems
from the practice of the weekend arraignment courts in assigning a
public defender to monitor the arraignments as the attorney of record.118 This attorney of record is physically located in the Public
113. FLA. R. CRIM. P. 3.130(a).
114. See generally Grube, supra note 51, at 330. In his Article, Judge Grube uses
the term “first appearance” to describe the proceedings before the court during the arrest
processing. Id. At this first appearance in Florida, the detainee is presented with the
criminal court complaint, informed of the charges against him, apprised of his legal
rights, and given the opportunity to plead guilty or not guilty. Id. The Florida first
appearance is the functional equivalent of California's criminal court arraignment. For
consistency in this Article, the term arraignment is used to describe the procedures occurring at the first appearance in Pinellas County, Florida.
Editor's Note: Pinellas County currently uses video production only for procedures
described in FLA. R. CRIM. P. 3.130. Pinellas County does not use video production for
procedures described in FLA. R. CRIM. P. 3.160. Telephone interview with Jennifer Babcock, Office of the Court Administrator, May 9, 1994.
115. Felons are held over for physical production on the following Monday. See
County of Riverside v. McLaughlin, 111 S. Ct. 1670 (1991) (questioning this practice as
highly suspect because weekends do not constitute an extraordinary circumstance which
will toll the running of the 48 hours within which Riverside County must ordinarily
produce arrestees for arraignment).
116. FLA. R. CRIM. P. 3.160. This rule does not provide that the video arraignments
should be recorded. The only provision for a record is that of the written waiver of counsel which must be signed and dated by the defendant to waive counsel at the first appearance. Id. at 3.160(e).
The process of accepting a guilty plea is governed by FLA. R. CRIM. P.
3.170–.171(a) which provides that “no plea of guilty or nolo contendere shall be accepted”
without a record being made either stenographically or by mechanical means that demonstrates that the plea is knowing and voluntary. This rule also provides that a complete record shall be kept of the proceedings. Id. at 3.170(j).
117. See Grube, supra note 51, at 341.
118. See Grube, supra note 51, at 367–70. In Pinellas County, docket entries indicate that an assistant public defender is appointed to every petit offender who enters a
guilty plea at weekend first appearance hearings. Id. Judge Grube argues convincingly in
his Article that this appointment imposes professional responsibilities upon the named
public defender. Id.
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Defender's Office, in another building.119 There is, however, no telephone link between this office, the jail, and the court.120 The assigned counsel, therefore, merely observes the video processing between the court and jail.121 While recently Pinellas County has
changed its procedures so that only pleas of not guilty can be taken
at weekend arraignment, the practice of mere observation of procedures by defense counsel denigrates the ethical obligation of assigned counsel to vigorously represent the best interests of his client
within the boundaries of the law.122
Because no public defender is functionally available in Pinellas
County, judges rely extensively on the execution of written waiver
forms by detainees to insure that the defendant properly understands the constitutional rights he is waiving by entering a plea of
guilt.123 These forms are given to the detainees by their jailhouse
custodians,124 and are filled out after the pleas are taken and outside
the viewing range of the court.125 Because there is no federal mandate that the judge specifically inquire into the literacy of the detainees who are signing these waivers, the use of these forms is
highly suspect.
In Pinellas County, the weekend arraignment judges allocute
the detainees en masse.126 While sentencing was previously imposed
at these video arraignments, recent appellate case law in Florida
prohibits sentencing without the defendant's physical presence in
the absence of statutory authorization.127
119. Grube, supra note 51, at 367–70.
120. Id.
121. This author's concern with the lack of communication between detainees and
appointed counsel will be discussed in Part V, section 4 of this Article pertaining to the
defendant's right to adequate assistance of counsel at video arraignments. See infra
notes 174–87 and accompanying text.
122. MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-1 (1969).
123. Grube, supra note 51, at 342–43.
124. Id. In his article, Judge Grube states:
In all the cases where [he] observed . . . guilty pleas [being taken] . . . the
defendant signed a written plea form. This procedure was carried out summarily upon request of the [jail custodian]. In none of the observed cases was . . .
the form being explained to the defendant either by the court, by counsel, or by
the corrections officer who obtained the defendant's signature.
Id. at 343.
125. Id.
126. Id. at 356.
127. See Powell v. State, 582 So. 2d 1248 (Fla. 4th DCA 1991) (holding that sentencing a defendant while he was in jail, and while the trial judge and counsel communi-
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The implications of such diverse processing as to the methods of
allocuting, record keeping, and attorney representation in Dade
County and Pinellas County are disturbing. The Pinellas County
procedures clearly can be deemed inherently prejudicial, as will be
discussed in Part V of this Article.
2. Post-trial Proceedings
Procedures used in Cole County, Missouri
On March 1, 1988, the Missouri legislature passed far reaching
legislation authorizing video production of prisoners at arraignment,
and also at any pre-trial or post-trial proceeding at which crossexamination is not required.128 This statute further authorized video
production at pleading and sentencing upon waiver of the right, if
any, to physical production.129 The statute was passed after the Missouri Supreme Court prohibited the state penitentiary from producing prisoners electronically in the absence of statutory authorization.130
The Missouri production procedures are similar to those of the
Dade County, Florida arraignment courts. Video production is ordinarily conducted in the court's discretion.131 In addition, counsel is
physically present with the detainee in the cell block.132 Recorders
preserve a split image of the proceedings in the cell and the courtroom.133
The Missouri Attorney General's Office justifies this statute on
two distinct grounds. First, sentenced prisoners present an unacceptable risk of escape which can only be prevented, given current
resources, by video production;134 and second, convicted prisoners
cated to him through closed circuit video, constituted reversible error); Thomas v. State,
574 So. 2d 323 (Fla. 4th DCA 1991) (holding that a defendant must be physically present
in the courtroom during sentencing); Jacobs v. State, 567 So. 2d 16 (Fla. 4th DCA 1990)
(requiring that sentencing take place in a courtroom).
128. MO. REV. STAT. § 561.031 (1988 & Supp. 1993).
129. Id.
130. Guinan v. State, 769 S.W.2d 427, 430–31 (Mo.), cert. denied, 493 U.S. 900
(1989).
131. MO. REV. STAT. § 561.031 (1988 & Supp. 1993).
132. Guinan, 769 S.W.2d at 430–31.
133. See supra text accompanying notes 111–12 for a discussion of how this split
image proceeding becomes the official record of the court.
134. Brief of Respondents at 31–33, State ex rel. Carl Turner v. Honorable Byron L.
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have fewer rights than other citizens, therefore, the state may produce them in any manner that minimally comports with procedural
due process.135 A juxtaposition of the Cole County, Missouri production procedures with the Pinellas County, Florida procedures reveals
that the Cole County procedures do in fact provide more procedural
protections than those of Pinellas County. However, such a far
reaching statute should not have been implemented without at least
a cursory review by the United States Supreme Court.136
V. DUE PROCESS ISSUES IN ELECTRONIC
PRODUCTION OF DEFENDANTS
A. Defendant's Right to be Arraigned in Open Court
At common law, the defendant had the right to be judged by his
peers.137 The prosecution took place in a courtroom, a public area
with sufficient space for members of the community to observe the
propriety of the state's actions against the accused.138 In the early
1980s, the Supreme Court held in Gannett v. DePasquale139 that this
public space extended beyond the four walls of the courthouse to the
television viewing audience. Thus, there appears to be no constitutional bar to the substitution of the defendant's electronic image for
the defendant's physical presence before the public convened within
and without the courtroom.
Court administrators in Dade, Pinellas, and Cole Counties have
provided for the defendant's right to be arraigned in an open court
by installing television monitors which project into the public view-
Kinder, 740 S.W.2d 654 (Mo. 1987) (No. 69546).
135. Brief of Respondents at 30, Turner (No. 69546).
136. It is indicative of the Rehnquist Court's conservative stance that the same
court that decided on its own motion to severely restrict the right of habeas review in
Teague v. Lane, 489 U.S. 288, 316 (1989), also refused to consider the death row complaint of Guinan, who argued that his post-appellate claim of his trial counsel's incompetence should have been heard in person rather than by electronic transmission. Guinan,
769 S.W.2d at 429–30.
137. “No free man shall be taken or imprisoned or [dispossessed] or outlawed or
exiled or in any way destroyed . . . except by lawful judgment of his peers and the law
of the land.” Magna Charta, 1215, 17 John, cl. 39 (Eng.).
138. The Sixth Amendment provides that in all criminal proceedings, the accused
shall enjoy a right to a public trial. U.S. CONST. amend. VI. It is a safeguard against
any attempt to employ our courts as instruments of prosecution. See, e.g., In re Oliver,
333 U.S. 257 (1948).
139. 443 U.S. 368 (1979).
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[Vol. XXIII
ing area at the side of the courtroom.140 One can argue that this
video image satisfies the right of the public to be present at the proceedings. While this public viewing of a monitor permits the family
of a detainee to observe him or her, due process would be more adequately served in places like Pinellas County if the monitor were at
least a forty-five inch color monitor, and detainees were given the
opportunity to say a few words to their families. Additional monitors
displaying the conditions of the jail cell should also be on public view
to assure family members that the detainee is safe while in police
custody.
B. Defendant's Right to be Present at Critical Stages of
the Prosecution
As previously discussed, the United States Supreme Court has
not specifically addressed the constitutionality of electronic production of detainees.141 However, federal and state appellate courts accept the fact that an electronic image is a constitutional “presence”
because video production allows the court to observe the demeanor
of both the accused and the witnesses testifying against him.142
Jurisdictions diverge, however, on the necessity for a waiver of
any right to be physically present at the arraignment. This divergence reflects a split in opinion on any right to physical presence at
court proceedings. For example, in Idaho, court administrators consider an electronic appearance to be the functional equivalent of a
physical appearance as required by the administrative court rules
which permit the local arraignment court to determine the manner
in which a defendant is produced.143 California lawmakers, on the
other hand, have understood that court administrators have a duty
beyond the mere transmission of an electronic image when arraigning felons.144 Therefore, the California Penal Code requires a waiver
140. See Silbert, supra note 62 for an explanation of the Dade County proceedings
and Grube, supra note 51 for an explanation of the Pinellas County proceedings. See also
Gilmore, supra note 39 and Guinan, 769 S.W.2d at 427.
141. See supra notes 1–41 and accompanying text.
142. See Maryland v. Craig, 497 U.S. 836, 951–52 (1990) (stating that “the use of [a]
one-way closed circuit television procedure, where it is necessary to further an important
state interest, does not impinge upon the Confrontation Clause's truth-seeking or symbolic purposes”).
143. IDAHO R. CRIM. P. 43.1 (1993).
144. Of the jurisdictions discussed, only California requires a signed waiver of physi-
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of the right to be physically produced before conducting a video felony arraignment.145
In several jurisdictions, appellate courts have recently held that
while a waiver of physical presence at arraignment and other designated proceedings is not required, court administrators may dispense with the physical presence of defendants only upon legislative
authorization. Thus, the Ninth Circuit in Valenzuela-Gonzalez v.
United States146 strictly construed Rule 43147 of the Federal Rules of
Criminal Procedure and struck down a federal administrative court
rule permitting video production at arraignments within that circuit.148 Likewise, appellate courts in California,149 Florida,150 and
Missouri151 also have held that substituting a video presence for a
physical presence must be done through the state legislature rather
than by court administrators.152
While earlier federal authority held that defendants have the
right to be present at critical stages of the prosecution, courts have
recently limited this right only to the cross-examination of the
cal appearance at arraignments. CAL. PENAL CODE § 977 (West 1985 & Supp. 1993).
145. Id. New York State, which has yet to implement its long standing statute on
video production, also requires that both felon and misdemeanant detainees sign a
waiver of physical appearance prior to electronic production. N.Y. CRIM. PROC. LAW §
182.10 (McKinney Supp. 1994).
146. 915 F.2d 1276 (9th Cir. 1990).
147. FED. R. CRIM. P. 43. This rule requires that the defendant be present at arraignment, at the time of his or her plea and at every stage of the proceeding including
the impaneling of the jury, the return of the verdict, and the imposition of the sentence.
Id.
148. Valenzuela-Gonzalez, 915 F.2d at 1281.
149. In Hochheiser v. Superior Court, 208 Cal. Rptr. 273, 284 (Ct. App. 1984), the
appellate court struck down an order by which a child witness would have appeared by
closed circuit television on the grounds that the trial court lacked the authority to substitute a televised image for an in personam witness.
150. See, e.g., Powell v. State, 582 So. 2d 1248 (Fla. 4th DCA 1991); Thomas v.
State, 574 So. 2d 323 (Fla. 4th DCA 1991); Jacobs v. State, 567 So. 2d 16 (Fla. 4th DCA
1990).
151. See, e.g., State ex rel. Turner v. Kinder, 740 S.W. 2d 654 (Mo. 1987); State v.
Porter, 755 S.W.2d 3 (Mo. Ct. App. 1988).
152. The Missouri Statutes state: “For the purpose of a judgment, if the conviction
is for an offense punishable by imprisonment or if imprisonment be assessed as punishment by the jury, the defendant must be personally present.” MO. REV. STAT. § 561.031
(1988 & Supp. 1993). They continue: “If the defendant is in custody, he must be brought
before the court for judgment.” Id. § 546.560. The Florida Rules state: “[D]efendant shall
be present [for the] pronouncement of judgement and the imposition of sentence.” FLA. R.
CRIM. P. § 3.180(a)(9).
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prosecution's witnesses.153 While one can argue that a criminal court
arraignment is not a critical proceeding,154 in those jurisdictions
surveyed by this author the first appearance combined the probable
cause hearing, arraignment, and bail applications for both felons
and misdemeanants.155 Further, as to misdemeanants, both pleas of
guilt and sentencing were conducted electronically.156 Such proceedings have more than a mere incidental effect on the rights afforded
defendants under the Due Process Clause of the United States
Constitution.157 Consequently, a defendant should have the right to
refuse electronic production.
Part I of this Article suggests that in other types of proceedings,
such as the far reaching Missouri video prisoner production statute,
the discretionary substitution of an electronic presence for a physical presence should be examined by the United States Supreme
Court to insure that the procedure comports with due process. 158 For
in the same manner in which a televised image of a child is something less than a face-to-face confrontation,159 the video image of the
defendant can be far less conscience-invoking than a living being demanding his procedural rights.
C. Defendant's Right of Confrontation
While the Supreme Court has not yet ruled on the constitutionality of electronic production of defendants, the Court has held in a
153. See, e.g., Snyder v. Massachusetts, 291 U.S. 97 (1934), overruled by Malloy v.
Hogan, 378 U.S. 1 (1964); United States v. Lewis, 146 U.S. 370, 372 (1892), overruled by
Malloy v. Hogan, 378 U.S. 1 (1964).
154. See County of Riverside v. McLaughlin, 111 S. Ct. 1661, 1670 (1991) (holding
that an arraignment is not a critical proceeding).
155. See supra note 43 for a list of articles discussing the arraignment procedures in
these jurisdictions.
156. California, Florida, and Missouri initially authorized sentencing by video
through administrative order, but subsequently decided that only a legislative act could
authorize video production at sentencing. See supra note 42 for the statutory authority
for video arraignments in these states.
157. The Sixth Amendment to the United States Constitution mandates that:
No State shall make or enforce any laws which shall abridge any of the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life liberty or property without due process of the law; nor
deny to any person within the jurisdiction the equal protection of the law.
U.S. CONST. amend. VI.
158. See supra text accompanying notes 1–24.
159. Craig, 497 U.S. at 865 (Scalia, J., dissenting).
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split decision, Coy v. Iowa,160 that the Constitution protects the defendant's right to confront his accusers as a core guarantee. 161 Justice Scalia, writing for the majority, argued that this right of confrontation grants the defendant the right to physically confront the
witnesses against him to insure the integrity of the fact-finding process by making it more difficult for the witness to lie.162 The Supreme Court vacated the lower court's adjudication of guilt on the
grounds that the screen placed between Coy and the child witnesses
deprived the defendant of a “face to face” confrontation.163
In a separate concurring opinion, Justices O'Connor and Kennedy stated that, while they agreed with the majority's holding, the
right of confrontation is not absolute and may give way to competing
compelling public interests.164 Further, they argued that nothing in
the majority decision invalidated legislation authorized in more than
fifty of the states165 which permits child victims to testify against the
accused via closed circuit television or through previously taped testimony.166
160. 487 U.S. 1012 (1988).
161. Id. at 1017.
162. Id. at 1018–19.
163. Id. at 1022.
164. Id. (O'Connor, J., concurring).
165. Id. at 1022. Twenty-four states have authorized the use of one way closed circuit television testimony in child abuse cases. See ALA. CODE § 15-25-3 (Supp. 1993);
ALASKA STAT. § 12.45.046(a)(2) (Supp. 1993); ARIZ. REV. STAT. ANN. § 13–4253 (1989);
CONN. GEN. STAT. § 54–86g (1994); FLA. STAT. § 92.54 (1993); ILL. REV. STAT., ch. 38,
para. 106B-1 (1993); IND. CODE § 35-37-4-8 (Supp. 1993); IOWA CODE, § 910A.14 (Supp.
1993); KAN. STAT. ANN. § 38–1558 (1986); KY. REV. STAT. ANN. § 421.350(1), (3) (Baldwin
1992); LA. REV. STAT. ANN. § 15–283 (West 1992); MD. CTS. & JUD. PROC. CODE ANN. §
9–102 (Supp. 1993); MASS. GEN. L. ANN., ch. 278, § 16D (1992); MINN. STAT. § 595.02(4)
(1988); MISS. CODE ANN. § 13-1-405 (Supp. 1993); N.J. REV. STAT. §§ 2A:84A–32A (Supp.
1993); OKLA. STAT. tit. 22, § 753(b) (1993); OR. REV. STAT. § 40.460(24) (1993); 42 PA.
CONS. STAT. §§ 5982 & 5985 (1993); R.I. GEN. LAWS § 11-37-13.2 (Supp. 1993); TEX.
CRIM. PROC. CODE ANN., § 38.071 (3) (West Supp. 1994); UTAH R. CRIM. P. 15.5 (1994);
VT. R. EVID. 807(d) (Supp. 1993); WASH. REV. CODE § 9A.44.150 (Supp. 1993).
Nine states authorize the use of a two-way system in which the child witness is
permitted to see the courtroom and the defendant on a video monitor and in which the
jury and judge are permitted to view the child during the testimony. See CAL. PENAL
CODE § 1347 (West Supp. 1994); HAW. REV. STAT. § 626, HAW. R. EVID. 616 (1985);
IDAHO CODE § 19–3024A (Supp 1993); MINN. STAT. § 595.02(4)(c)(2) (1988); N.Y. CRIM.
PROC. LAW §§ 65.00–65.30 (McKinney Supp. 1994); OHIO REV. CODE ANN. § 2907.41(C)(E)
(Anderson 1993); VT. R. EVID. 807(e) (Supp. 1993); VA. CODE ANN. § 18.2–67.9 (Michie
1988).
166. Coy, 487 U.S. at 1022.
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Subsequently, in Maryland v. Craig,167 the Court, in a majority
opinion written by Justice O'Connor, held that the taking of testimony of a child victim via closed circuit television is not, of itself, a
violation of the defendant's right to confrontation168 where other elements of confrontation are granted to the accused.169 These elements
include: 1) the physical presence of the witness in a room adjacent to
the courtroom; 2) the placement of the witness under oath prior to
testifying; 3) the subjection of the witness to rigorous cross-examination; 4) the observation by the defendant and the court of the witness while that witness was testifying; and 5) a showing of necessity
for the substitution of an electronic presence for a physical presence.170
While court procedures must be expedited to keep pace with
rising arrests, something more than mere administrative convenience on the part of court personnel including the defense counsel,
must be demonstrated before the mass installation of video production equipment in the courts of the United States will satisfy constitutional guarantees of due process. The necessity accepted by the
Missouri Supreme Court for video production of prisoners was an
admission on the part of the prosecution that court and jail personnel could not adequately supervise the detainees being physically
produced from the county jail because of the proximity of the
courthouse to schools, houses of worship, and places of commerce.171
However, such a finding of necessity should be made only after the
legislature and court administrators have made an honest and rigorous examination of the options available to them. For example, a
solution more equitable than barring a prisoner from a courtroom is
the suggestion that judges from the outlying courthouses go to the
central jail and operate courtrooms within the jail.172
167. 497 U.S. 836 (1990).
168. Id. at 857. The majority opinion noted that the Maryland Court of Appeals
interpreted Coy as requiring that two conditions be met before allowing testimony by
closed circuit television, and stated that testimony by way of one-way closed circuit television “cannot be invoked unless the child witness initially is questioned . . . in the defendant's presence . . . [and the] trial judge must determine whether [the] child would
suffer `severe emotional distress' if he or she were to testify by two-way closed circuit
television.” Id.
169. Id.
170. Id. at 855.
171. State ex rel. Turner v. Kinder, 740 S.W.2d 654, 659 (Mo. 1987).
172. Thompson, supra note 14, at 39–40.
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D. Defendant's Right to Adequate Assistance of Counsel
The Supreme Court held that an indigent defendant is entitled
to appointed counsel at arraignment proceedings where state law
provides that defenses are abandoned if they are not raised at that
point.173 Similarly, the Court found that the Sixth Amendment applied where the defendant was asked to enter a non-binding plea at
his first appearance which, though later withdrawn, was used
against him at trial.174 The Court also ruled that appointed counsel
is not required at an arraignment where any plea or waiver of rights
made without the assistance of counsel could be withdrawn after
appointment of counsel and such a plea could not be utilized in subsequent proceedings.175
Video production procedures have been developed on an ad hoc
basis and lack uniformity. Riverside County, California, and
Pinellas County, Florida, do not provide counsel at the video arraignments of misdemeanants. Dade County, Florida, on the other
hand, insures that there is a public defender in the courtroom, as
well as the jail cell, for both felons and misdemeanants.
Public defenders have objected to any video arraignment system
which prevents the defendant and his or her counsel from being
together at the same location for a pre-arraignment defense interview as well as during the arraignment.176 They believe that a lawyer should be with the defendant to instill confidence in the legal
system in the defendant.177 This objection has been resolved in some
jurisdictions, such as Dade County, Florida, by placing defense counsel with the defendant in the holding cell.178 This placement is not
without drawbacks. One disadvantage is that the public defender
cannot approach the bench and effectively negotiate a plea bargain
for his client. Another disadvantage is the creation of an “us”
against “them” mentality for the court, in which the prosecutor is
physically present with the judge, while the public defender is pro173. Hamilton v. Alabama, 368 U.S. 52, 55 (1961).
174. White v. Maryland, 373 U.S. 59 (1963).
175. Vitoratos v. Maxwell, 351 F.2d 217, 221 (6th Cir. 1965), cert. denied, 383 U.S.
105 (1966).
176. Interview with Michelle Maxian, Appellate Division, Legal Aid Society of New
York (February 10, 1992).
177. Id.
178. Id.
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duced in an electronic box next to the defendant. This process may
give rise to a perception of unfairness.
The absence of physical presence of counsel with
misdemeanants in county jails is troubling. While a probable cause
determination may not seem to be a critical stage of the proceedings
against an accused, a plea of guilty has the same effect as a finding
of guilt after a trial on the merits. Such critical proceedings should
not occur without the accused having an opportunity to confer in
person with counsel.179
Certainly where an attorney is appointed by a court as an attorney of record to defend a person charged with a crime, that attorney must insure that his client's plea is knowing and intelligent.180 The attorney also must insure that his client is aware of the
collateral consequences of taking a plea.181 Processing such as that
in Pinellas County that fails to provide communications links is a
violation of professional ethics and fundamental due process. Processing such as that in Dade County, where one public defender is in
the jail and a second public defender is in the court with a secured
phone line running between the courthouse and jail, is affordable
and necessary to insure that electronic production and plea taking
meets minimal standards of due process and fundamental fairness.
In taking pleas from electronically produced detainees, arraignment court judges should be sensitive to the fact that the “limited
`cameo' appearance of defendants provided by a television monitor
greatly reduces the [judge's] opportunity to observe the [detainees']
179. See People v. Rogers, 397 N.E.2d 709, 711 (1979) (holding that the right to
counsel attaches at arraignment, and that this right cannot be waived except in the
presence of counsel).
180. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.4. This rule is entitled
“Communications” and provides as follows:
A. A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
B. A lawyer shall explain a matter to the extent reasonably necessary to permit
the client to make informed decisions regarding the representation.
Id.
181. See Grube, supra note 51, at 370–72. Judge Grube pointed out that defendants
frequently are unaware of the collateral consequences of pleading guilty. Id. The conviction may be used for probation violation, charge enhancement under habitual offender or
recidivist statutes, impeachment at a future trial, use in sentence enhancement in subsequent charges for the same offense, and use in scoring for felony guideline sentencing.
Id. See also David S. Rudstein, The Collateral Use of Uncounselled Misdemeanor Convictions after Scott and Baldasar, 34 FLA. L. REV. 517 (1982).
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interaction with his environment.”182 Consequently, the court must
take special care when counsel is not provided in the jail cell, because the arraignment judges must insure that a detainee is not
merely acquiescing to the authority of the jail personnel by signing
waivers at the time the plea is taken.183 Therefore, arraignment
judges, in their allocution, should take special care to insure that a
detainee is physically and mentally competent184 to plead voluntarily.185 The arraignment judge should also insure, on the record, that
the detainee reads and understands any written waiver which he
executes for the court.
State courts should seek to emulate the Missouri prisoner production statute to insure that the court has sufficient control over
what occurs in the jail block.186 For example, court personnel should
be assigned to the jail. Further, court personnel, rather than prison
personnel, should be responsible for distributing and collecting waivers. Finally, a public defender should be present in the cell block.
This public defender should be responsible for explaining the constitutional rights waived and the practical consequences of such a
waiver.
E. Need for Full and Accurate Record Keeping
Stenographers in many states are under oath of office to produce full and accurate records.187 Stenographers are also charged
with the duty of keeping complete records of their notes for a set
182. Grube, supra note 51, at 366.
183. Id.
184. Id. at 365–66. Judge Grube noted that:
The importance of being able to screen for physical impairment and mental
disability is particularly important in the acceptance of guilty pleas at weekend
first appearance hearings. The potential for encountering physical and mental
impairment is tremendous at first appearance hearings, if for no other reason
than the promptness with which the first appearance occurs following the initial arrest. Many defendants appear within a matter of hours from the time
that they were alleged to have committed offenses involving physical trauma or
the ingestion of drugs or alcohol.
Id.
185. Id. at 365.
186. See supra notes 128–36 and accompanying text for a discussion of MO. REV.
STAT. § 561.031.
187. See 82 C.J.S. Stenographer §§ 2–3, 9–10 (1953 & Supp. 1993) for an explanation of the duties of stenographers.
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period of time.188 Video records are more complete than stenographic
recordings, and in some instances tapes are far superior because
they memorialize the visual image seen by the court.189 Stenographic
recordings are an unnecessary expense in those jurisdictions that
have authorized videotaping190 and, therefore, the audio-video tape,
rather than a stenographic recording, should be the official record of
the court.
Conversely, those jurisdictions availing themselves of the convenience of video should be charged with preserving a full record of
arraignment and post conviction proceedings.191 Just as stenographers are charged with the duty of signing a certificate of completeness and correctness as to a court transcript,192 the video technician
must be placed under a similar duty to preserve a complete recording of the arraignment. The practice of Pinellas County, Florida, in
preserving only the audio portion of the taped arraignment, in effect
destroys part of the record that existed during the court proceeding.193 Jurisdictions should be compelled to follow the examples of
Cole County, Missouri; Dade County, Florida; and Riverside County,
California, and preserve on a split screen the communication between the judge and the detainee. The split screen allows a subsequent viewer to observe the demeanor of those in the courtroom as
well as the arrestee in the detention facility.194
188. See id.
189. Visual images of the detainee being arraigned prove extremely important in ascertaining, for example, 1) if the detainee was so impaired by alcohol that he could not
knowing plead guilty to driving while intoxicated, 2) if the detainee was injured while in
police custody prior to arraignment, and 3) if the detainee shows physical signs of being
coerced into making a confession.
190. In Praise of Video, 11 NAT'L L.J., Oct. 10, 1988, at 12 (noting that the Judicial
Conference of the United States approves experimentation with videotapes as opposed to
transcripts in federal courts).
191. One can argue that at those proceedings where the defendant is not an active
participant in the proceedings, such as motion practice or discovery, there is no need to
preserve a visual record. However, plea bargaining during arraignments and post-conviction proceedings involve the active participation of the detainee or prisoner, which is
best preserved in video.
192. 82 C.J.S. Stenographer §§ 9–10 (1953 & Supp. 1993).
193. Grube, supra note 51, at 342.
194. Turner, 740 S.W.2d at 658 (Welliver, J., dissenting). In a dissent, Judge
Welliver discusses the advantages of split screen video for transmitting the communications between the judge and defendant sitting in separate courtrooms. Id. He notes that
the split screen video process allows the viewer to evaluate the “look of the eyes, the
facial expressions, the mannerisms and the body language of the communicating party.”
Id.
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Care must be taken to insure that the equipment utilized for
video production properly records the communication between the
judge and the detainee. In Pinellas County, Florida, the audio-cassette recorder which records the official audio tape is placed on the
judge's podium, approximately twenty feet from a video monitor
projecting the voices of the detainees.195 The failure of technicians in
Pinellas County to link their audio cassette recorder to the electronic communication system running from the jail to the courthouse has resulted in recordings of such poor quality196 that all the
pleas taken are subject to reversal because the court has failed to
make and retain an adequate record of the proceedings.197
In an attempt to avoid such problems in the implementation of
video court reporting and video production at arraignments, the
Chief Judge in New Jersey convened the Supreme Court Committee
on Court Reporting (Stenographic and Electronic).198 This committee
spoke with vendors and users of video court reporting systems.
Among the recommendations of this committee were: 1) all counties
should have a courtroom with video recording equipment of JAVS199
quality; 2) each of these courtrooms should be provided with sufficient audio and video backup to ensure that the court proceedings
can continue with a minimum of interruption in the event of equipment failure; 3) the role of the audio-video operators should be
professionalized by expanding the current training program and creating a certification program; 4) the judiciary should initiate a required orientation program on the in-court steps necessary to ensure
an accurate record; 5) written instructions should be provided to
attorneys prior to video proceedings on attorney conduct which facilitates a clear record; 6) trained audio-visual coordinators should
195. Grube, supra note 51, at 342.
196. Id. An inspection of the audio tapes recorded in spring of 1990 by Pinellas
County Judge Harold Grube revealed that these tapes were of such poor quality that the
tapes would be of dubious value as a record for appellate or collateral review. Id.
197. See Boykin v. Alabama, 395 U.S. 238 (1969) (holding that the acceptance of a
petitioner's guilty plea was reversible error because the record failed to show that the
plea was voluntary).
198. COMMITTEE ON COURT REPORTING (STENOGRAPHIC & ELECTRONIC), SUPREME
COURT OF THE STATE OF NEW JERSEY, FINAL REPORT (1991).
199. Id. at 3. David Green of Jefferson Audio Video Systems (JAVS) developed this
video recording system for the Kentucky state courts. Id. It consists of integrated audio
and video equipment, backup equipment, a sound mixer and several cameras. Id. This
system has spread to several other courts. Id.
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be hired who are directly responsible to the assignment judge and
appellate division's court reporting services; and 7) the judiciary
should strictly limit transcribers' use of such terms as “inaudible”
and “indiscernible” by sanctioning those transcribers who are not
diligent in listening to various tape tracks until they can transcribe
what was said.200
F. Right to be Free From Testimonial Compulsion
Traditionally, courtrooms have been deemed consecrated spaces,
akin to church sanctuaries, where the accused is brought before an
impartial magistrate who, in a neutral and detached manner,
informs the accused of the charges against him, or listens to the
nature of the prisoner's complaints. One may argue that the physical and psychological atmosphere of a jail, as opposed to the atmosphere of a courtroom, is so inherently coercive that the jail itself
prevents detainees from objectively assessing their situation. Moreover, it may be argued that a jail impermissibly fosters plea taking
rather than defending against the prosecutor's accusations. One
may also argue that prisoners will have little confidence in administrative due process when filing complaints or seeking writs if they
never leave the compound their jailers control.
Where courtroom proceedings are conducted from a jail or penitentiary, the presiding judge must insure that the atmosphere in the
jail is non-coercive. Where defendants are informed of their due
process rights en masse, the court must conduct a careful inquiry to
insure that the defendants understand the import of those rights.
Where written waiver forms are distributed, the judge has the duty
to act as a conduit to the distribution and explanation of the rights
enumerated in the waiver forms. In addition, the use of adversarial
counsel, or jailhouse guards, to distribute and explain the waivers is
both highly inappropriate and unduly coercive.201
To insure that all proceedings in the jail cell are made known to
the judge and that defendants are not being coerced when communicating with the court, video cameras should scan the entire cell
block during the proceedings. Furthermore, court personnel should
200. Id. at 2.
201. State v. Haugen, 384 N.W.2d 651, 653 (N.D. 1986) (holding that the explanation of an uncounselled defendant's rights by the prosecutor, in the court's absence, was
improper).
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be in the jail cell to act as the judge's agents, insuring that the jail is
a neutral territory where the defendant is not coerced into taking a
plea.
G. Need for State Legislatures to Pass Uniform
Video Production Statutes
As this Article's overview of the laws of Dade County and
Pinellas County, Florida; Riverside County, California; and Cole
County, Missouri, indicates, there are significant variations in procedures. Both the State of Missouri202 and the Ninth Circuit203 have
struck down administrative rules issued by their courts on the
grounds that these courts, while acting in an administrative capacity, overstepped the powers entrusted to them by the citizens to
whom they are ultimately accountable. Sentences have been nullified due to the lack of legislative authorization for conducting sentencing by electronic means.204 In response to the action of the Missouri Supreme Court, the Missouri Legislature passed a detailed
statute which authorized sweeping reforms in the criminal production laws of Missouri.205 This far reaching statute was the subject of
judicial scrutiny by the Missouri Supreme Court, which held the
statute constitutional under its interpretation of both the United
States and Missouri Constitutions.206
As of this writing, the United States Congress has yet to promulgate similar authorization for video production pursuant to the
Federal Rules of Criminal Procedure. In Valenzuela-Gonzalez, the
Ninth Circuit declared null and void a federal district court's administrative order predicated on an identical Arizona court's administrative order.207 The court reasoned that the federal district court
lacked the authority to issue federal legislation.208 As a result, criminal justice administrators may now choose discretion as the better
part of valor, and suspend the implementation of procedures that
save thousands of tax dollars, at least until the Supreme Court
202. Turner, 740 S.W.2d at 656.
203. Valenzuela-Gonzalez v. District Ct. of Ariz., 915 F.2d 1276 (9th Cir. 1991).
204. See supra note 130.
205. MO. REV. STAT. § 561.031 (1988 & Supp. 1993).
206. Guinan v. State, 769 S.W.2d 427 (Mo. 1989). See supra note 130 for a discussion of this case.
207. Valenzuela-Gonzalez, 915 F.2d at 1276.
208. Id.
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speaks with authority delineating guidelines and/or specifications
for the video production of defendants at arraignments.
VI. CONCLUSION
This writer's examination of the sparse literature relating to
electronic production of defendants at pre-trial and post-trial proceedings reveals the existence of divergent procedures within and
between jurisdictions that impact on a defendant's rights in significantly adverse ways. While the use of video technology does expedite
production, the absence of the defendant's physical presence may
result in an emotional detachment by those sworn to uphold the
rights of the accused. Moreover, the physical detachment of the
criminal justice administrators can pose serious deficiencies in the
processing of detainees by those sworn to uphold their rights.209 This
is especially true where counsel is not functionally available for the
defendant in the detention facility where he or she is housed.
The paucity of litigation over the demise of the fundamental
right of the defendant to be physically present in the courtroom
during the critical stages of the proceedings, leads this writer to
believe that public defenders are cooperating too readily with the
courts in implementing video production.210 This is understandable,
considering that electronic court appearances are far less onerous on
the overburdened overseers of criminal justice,211 and probably on
the detainees as well.
Yet there is a danger in the indiscriminate use of machinery in
the courts, for this machinery can adversely affect the solemnity of
the judicial proceedings and the reverence with which society looks
upon the law. Courtrooms are designed to emphasize the importance
of the rituals conducted therein: the use of marble in the halls, the
209. Grube, supra note 51, at 341. Judge Grube, in his Article on misdemeanor plea
taking in Pinellas County, Florida, insinuated that the physical detachment of the judges
at the electronic arraignments leads to serious deficiencies in the taking of pleas. Id.
210. See Thompson, supra note 14, at 39. Thompson mentions the insidious practice
which occurs when lawyers ask for appearances merely to avoid visiting their clients in
the jail. Id. While obviously these attorneys would disfavor video production, this author
believes that most public defenders burdened with processing their clients through antiquated courthouses rejoice at having some control over the time and circumstances of
prisoner production. Id.
211. As pointed out by a former drug enforcement prosecutor, the implementation of
teleconferencing meant that numerous hours hauling up and down the Florida Keys
could be eliminated.
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display of the emblems and flags, the use of a wooden bar to separate the laity from those admitted to the practice of law, the height
of the judge's podium and the use of the gavel to declare order in the
court. These symbols reinforce our recognition of the authority of the
courts to act as surrogates for society's censure of criminal acts. To
the extent that electronic equipment provides the defendant with
the sense that justice has been served, he or she will accept the punishment as fair. Indiscriminate tampering with the trappings of justice is foolhardy unless the state advances a compelling reason.
This author agrees with Justice Scalia that the physical confrontation of the accused and the accuser produces superior justice,212 if only because it forces those sitting in judgment to recognize
the humanity of those being judged. It can be all to easy for those
court officers practicing in a climate controlled courtroom to treat a
televised image as less than equal under the law. Because of exploding caseloads, public health concerns, and shrinking budgets, this
author believes electronic production will become more commonplace. Consequently, consideration must be given to procedures that
safeguard the constitutional right of presence.
To do justice, court administrators should use procedures and
equipment which will insure the defendant his or her due process
rights under the United States Constitution. Multiple cameras
should be set up in both the courtrooms and the detention facility. If
a defendant's family is in the courtroom, he or she should be able to
see them, if only for moral support. If a prison guard is hovering
over the defendant in a menacing manner, the judge must be able to
see this conduct if he or she is to admonish and stop it. The video
equipment should be of the highest quality and have the most reliable performance ability. The state must keep a full record of the
court proceedings. Further, in all proceedings where the state has a
duty to produce the defendant, that duty should encompass the requirement that the record kept be a full pictorial record of the defendant's physical appearance, not merely a voice recording or a transcript.
Uniform standards for electronic production should be proscribed by concerned professional organizations such as the National
Legal Aid Association, the American Bar Association, and the Amer-
212. See supra note 162 and accompanying text.
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ican College of Judges. These standards must be reviewed by the
Supreme Court to insure that they comport with due process guarantees, for, in the absence of physical confrontation, officers of the
court must insure that defendants receive a fair approximation of a
day in court.
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