A new report from a pandemic workgroup found strong support for maintaining extensive remote access to court proceedings.
Chief Justice Tani G. Cantil-Sakauye’s Workgroup on Post-Pandemic Initiatives met with court users representing 46 groups—including civil and criminal attorneys, law enforcement, legal aid attorneys, dependency counsel, and court staff—who presented their input on changes to court processes instituted due to the pandemic and their experiences with remote hearings.
The workgroup recommended that California expand and maximize remote access on a permanent basis for most proceedings and should not default to pre-pandemic levels of in-person operations. The Judicial Council should encourage and support courts in substantially expanding remote access, while adopting policies that ensure consistency and fairness statewide with the flexibility to meet local needs, the workgroup wrote.
“Providing access to the courts through remote technology increases access to justice,” said Chief Justice Cantil-Sakauye. “This issue is about equity and fairness because it can help those who may have to miss work or travel long distances to make brief courtroom appearances. It is about transparency because remote hearings make court hearings more accessible to the public and media. Of course, remote technology should not replace all in-person court hearings, but Californians should have the freedom of choice to conduct their business remotely whenever appropriate.”
Most people who presented to the workgroup voiced strong support for maintaining extensive remote access to court proceedings. Following is some of the input that was included.
Greater access for court users: Court users can attend a remote hearing without missing work or arranging childcare, saving transportation time and costs. Californians who entered courts in person dropped from approximately 40 million to 12 million during the pandemic; 75 percent of self-help visitors chose to use services remotely. Collaborative court participants can attend remote appearances without disrupting drug or medical treatment. Online mediation tools helped those in the military and out of state attend family court hearings. In juvenile law cases, remote options met the needs of those with non-traditional work schedules, incarcerated parents, and youth in school to participate. (In El Dorado County, youth were driven 176 miles over a mountain pass to get to court, prompting safety concerns).
Victims often prefer to have the option of appearing remotely: Vulnerable court users, such as victims of domestic violence or elder abuse, reported they had less anxiety and stress by not having to appear in court with the perpetrator.
Availability of expert witness testimony: Civil and criminal law attorneys reported expert witnesses were more willing to testify if they didn’t have to spend a full day of travel to appear in court.
Virtual visitation option promotes improved relationships and increased participation: Many families involved in court proceedings face housing issues and tend to change residences during the life of their case. This can make it difficult to appear in court and to maintain in-person visitation. Parents who live out of state who have never participated in proceedings or visitation are now able to do that remotely. In dependency cases, offering virtual visitation promotes relationships between birth parents and foster parents, and helps children to stay in touch with parents and other supportive adults in their life.
Remote options increase efficiency, safety, and participation: Remote appearances are efficient for many parts of criminal and civil cases, such as arraignments, pretrial conferences, and progress report hearings. They reduced failure to appear rates in many courts, and courts also saw efficiencies in work for staff and less down time in courtrooms.
Court users expect it: Court users expect that if the courts can serve people equally or better remotely, those options should be available.
Remote hearings allowed California trial courts to resolve a far larger percentage of certain case types during the pandemic, the report showed.
California superior courts averaged a case clearance rate of 86 percent before the COVID-19 pandemic. During the first months of the pandemic (March-August 2020), that average dropped to 73 percent. A court’s clearance rate is the percentage of all case filings that are resolved.
But in areas where courts relied almost exclusively on remote video hearings—most notably juvenile delinquency and dependency cases—clearance rates improved even over pre-pandemic levels, the data showed. Remote hearings allowed courts to handle not just current juvenile cases but also clear previous backlogs, pushing juvenile clearance rates as high as 130 percent.
Remote hearings also helped boost the rate of child support case resolutions by 10 percent from the start of the pandemic back to pre-pandemic levels.
But in criminal and other case types, where remote hearings were used far less often, clearance rates decreased by about 20 percent.
Some presenters noted their concerns with remote proceedings and services, including:
Digital divide: Internet bandwidth is a concern in rural counties, counties experiencing wildfire emergencies, and in tribal lands, as well as the ability to afford access and navigate the technology.
Potential for less accurate court records: Court reporters expressed concerns that technological glitches and other issues may impact their requirement to provide a full, complete court record of a remote hearing.
Challenges of a virtual courtroom: Some courts are not as technologically advanced as others, and courts reported issues with people recording remote proceedings in violation of the law or court directives. Lack of courtroom decorum was also a concern.
Criminal case concerns: Some have the perspective that remote proceedings are not constitutionally permissible for critical stages in a criminal case.
Benefits of In-person interaction: In many types of proceedings, it is helpful to have the judge in the same room as the person who will be affected by their decision.