Parties weigh in on proposal to expand the use of remote appearances for routine criminal matters

Parties weigh in on proposal to expand the use of remote appearances for routine criminal matters

A proposed court rule amendment that would promote greater use of remote technology in routine criminal proceedings has generated scores of comments. More than 50 responses were filed before a Supreme Court comment period expired September 5.

Supporters include 14 past chairs of the Criminal Law Section, a Tobias Simon Pro Bono Award recipient, the Miami-Dade Chapter of the Florida Association for Women Lawyers, the Washington, D.C., based National Center for Victims of Crime, and two Florida Bar board members.

“It is my opinion that this rule change will greatly benefit not just attorneys practicing in criminal court (including prosecutors) but will also prove to provide a more accessible court system for the victims of crimes and the public in general,” wrote Miami’s Sabrina Vora-Puglisi, who was recently elected to represent the 11th Judicial Circuit on the Board of Governors.

Opponents include veteran 10th Circuit Public Defender Rex Dimig. He warned that the proposal would make it harder for prosecutors and public defenders to manage their caseloads.

“Consequently, case management in criminal cases is most effective when there is confidential communication between a defendant and defense counsel, and contemporaneous communication between defense counsel and the prosecutor,” Dimig wrote. “Simply stated, criminal cases can best be resolved when all parties are physically present together in a courtroom.”

The Criminal Procedure Rules Committee proposed amendment to Rule 3.116 is based on a referral from the Florida Association of Criminal Defense Lawyers.

It would add a subdivision (c) “Pretrial Conferences and Non-Evidentiary Proceedings,” that would state: “A court official must grant a motion to use communication technology for a non-evidentiary proceeding scheduled for 30 minutes or less unless the court official determines that good cause exists to deny the motion.”

It continues, “The defendant or the defendant’s counsel must waive the defendant’s physical attendance at the pretrial conference pursuant to rule 3.180 and 3.220(o)(1).”

The Board of Governors voted 34-10 to recommend acceptance of the proposal at a May 12 meeting in Naples.

Rule 3.116(c) currently states, in part, that “a judge may, upon the court’s own motion or upon the written request of a party, direct that communication technology be used by one or more parties for attendance at a pretrial conference, except that, before a judge may direct that the defendant participate in the pretrial conference using communications technology, the defendant or the defendant’s counsel must waive the defendant’s physical attendance at the pretrial conference pursuant to rules 3.180(a)(3) and 3.220(o)(1).”

The Supreme Court adopted the rule in July as part of a sweeping petition by its COVID-19 Workgroup.

FACDL argues the current rule has created a lack of uniformity between and even within circuits.

“Additionally, as we see certain circuits and judges fully abandon the use of remote technology, lawyers, defendants, and victims in those jurisdictions being adversely affected,” FACDL President Ernest Chang wrote in a letter earlier this year to the Criminal Procedure Rules Committee.

FACDL argues the amendment would bring Rule 3.116 in line with Rule of General Practice and Judicial Administration 2.530(b)(1).

The disparity between the two rules “results in criminal and civil lawyers and similarly situated defendants” being treated differently, Chang wrote.

“Non-evidentiary ministerial hearings do not trigger any constitutional considerations, as such, it defies logic as to why civil practitioners should enjoy the convenience of remote proceedings when criminal practitioners are required to make in court appearances for non-essential and brief matters,” Chang wrote.

The Criminal Procedure Rules Committee voted 24-8, with one abstention, to approve the proposed amendment earlier this year. The committee is made up of defense attorneys, prosecutors, and judges.

Not long before The Florida Bar board meeting, the Florida Conference of Circuit Judges submitted a letter to then President Gary Lesser warning that its executive committee unanimously opposed the proposal.

Twentieth Circuit Judge Nicholas Thompson, the conference chair, acknowledged in the letter that remote technology can be beneficial in “some aspects of the criminal courts.”

But he warned that in a large state, “a one size fits all rule” is “neither wise nor feasible.”

The letter cites a litany of concerns, including that the proposed amendment lacks an exemption for “final pretrial, calendar call or docket sounding immediately preceding trial.”

“The vast majority of cases set for trial resolve at the final court date prior to jury selection,” the letter notes. “The in-person attendance of the parties is critical to encouraging resolution of cases so as to avoid crowded courtrooms and juror wait times on jury selection days.”

Remote attendance could also frustrate law enforcement efforts to serve domestic violence injunctions and it would significantly impact mental health and drug courts that depend on “direct, in person involvement,” the letter warns.

Judges also argued the amendment would be “unworkable” because it would equally apply to prosecutors, public defenders, and unrepresented litigants.

“The proposed rule, therefore, would permit ALL PARTIES the option of waiving their personal appearances; while this may be efficient for non-evidentiary proceedings in civil cases, it is unworkable in many criminal courts throughout this state. The necessity of in person attendance for arraignment dockets of unrepresented litigants in the county criminal courts in particular is especially acute,” the letter notes.

Miami’s Jude Faccidomo, a past president of FACDL who serves on the Rules of General Practice and Judicial Administration Committee, has championed the proposal for more than a year.

In his comment to the Supreme Court, Faccidomo argued that the amendment will make the courts more uniform.

“While the rule as written may not have been intended to create this disparity and a lack of uniformity, the strong feelings opposed to the use of remote technology by some members of the judiciary has done just that,” Faccidomo wrote. “A rule of procedure is designed to create a standard throughout the State of Florida.”

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