Making the Call

When courtroom hearings take a backseat to video or telephone conferencing, the question is whether the reporter can get in.

From the Fall 2007 issue of The News Media & The Law, page 24.

By Corinna Zarek

In a legal system ever-attempting to achieve greater efficiency, cutting out the step of bringing lawyers together for a courtroom hearing when they can simply call or videoconference in seems like a logical next step.

But when a judge fails to allow access to those calls or video proceedings, that streamlining results in a public closed off from what should be publicly accessible events.

“It’s very common in both civil and criminal cases” to hold video or telephone hearings, said Jane Mills, a New Haven, Conn.-based freelance reporter who has covered federal courts and attempted to gain access to several telephone conferences.

“It’s very convenient in large cases where parties to lawsuits or defendants in criminal cases have lawyers from out of state or where there are multiple parties to schedule around,” she said.

Dwight Hines, a writer with IndyMedia in St. Augustine, Fla., agreed that it can be a convenience for parties. “In cases where pre-trial info is necessary to one side or the other, and the person is in a different state, it saves money,” he said.

But, Mills stressed, access to these proceedings is just as crucial as is access to any other court matter. Mills, who spent some time looking into the practice, said there is a misconception that these hearings “are only status conferences, but that is not the case — motion hearings where arguments are heard are also done over the phone.”

Call it in

Telephone conferences in federal courts in Connecticut are “quite common,” Mills said. “I suspect that’s the case elsewhere, too. I’ve researched other districts and it appears fairly common.”

Instead of requiring attorneys for the parties to physically come to a judge’s courtroom for a hearing, the judge may list the meeting as a telephone hearing on the docket. Presumably, like any other public hearing, a reporter could sit in on the proceeding to witness the matter. However, Mills says in practice that is not always the case. “I’ve been barred from several telephone hearings,” she said. “I was allowed into one and I was thrilled.”

The telephone hearing Mills attended in May 2007 concerned a convicted CEO’s motion to avoid paying the government back more than $3 billion in restitution for false financial reporting. The hearing occurred in the U.S. District Court in Bridgeport, Conn., where Mills was the only person in attendance other than the judge.

“It was a no-brainer to him” to let her in, she said. “It was without logistical challenges.” Judge Alan Nevas held the telephone hearing in a conference room off of his chambers, Mills said.

But access to such proceedings is not always granted. Mills recalled other instances where she saw telephone hearings scheduled on the docket, “just like any other hearing,” where she was either not allowed in, or a judge failed to respond to her requests to attend.

“It was very easy to accommodate a reporter where the judge was sitting with his phone. They may argue there are space constraints, but I’m not sure that is a realistic concern. Most of the time, maybe one or two reporters want to attend, and in a huge case, I don’t see why it couldn’t be moved to the courtroom,” Mills said.

“A public hearing on the phone is no different from a public hearing in the courtroom,” she added.

Local court rules govern whether and how a court will accommodate telephone or video hearings, said Karen Redmond, a spokeswoman with the Administrative Office of the U.S. Courts. She said that access to these hearings is generally determined just as is access to any other hearing.

“The judge either let them in or didn’t regardless of whether it was a telephone or video hearing, it was more of the nature of the hearing” that determined access, she said.

Out of sight . . .

Though a telephone hearing could preclude access to the proceeding, it may provide cover in sensitive cases.

“Telephone hearings are a good idea in cases where witness protection is necessary,” said Hines, the Florida writer. “It reduces exposure until the trial.”

Hines has covered telephone hearings in four Florida circuits and said he has not noticed a problem with access to such proceedings. He said telephone hearings must be given the same notice as a courtroom hearing, and if the hearing intends to exclude the public, the court must hold a prior public hearing to show it is necessary.

Also, he pointed out, it is “the responsibility of the journalist” to stay on top of the court dockets and know when hearings are scheduled so they will know whether they are potentially missing one.

Videoconferencing is becoming a more common occurrence in criminal cases in order to cut down on the time and expense of transporting those criminally charged – as well as to accommodate safety concerns. Videoconferencing allows participants to see and hear each other via audio and video transmission — essentially a televised telephone call. It is also used in civil cases to allow lawyers and the judge to hold hearings while avoiding travel time and cost.

These types of hearings serve various purposes, federal courts spokeswoman Redmond said. “They’re mostly used for distance reasons as well as security. With prisoners, it’s easier to hold videoconferences on some topics, but not everything can be a videoconference,” she said.

“If the videoconference is part of a public hearing, then the rules are no different than any other hearing which is open to the public, unless the hearing is under seal,” said Lance Bachman, the technology administrator for the federal court in the Eastern District of Virginia.

But, Bachman said, videoconferences are rare in his Virginia district; with changes in technology and infrastructure at the court, he said he expects that to change.

“We have not used video calls that much because we do not have the infrastructure and configuration to support it. I suspect that the frequency of use will increase with the availability of the new systems and new infrastructure configuration.”

“A telephone conference on a motion is one thing, but a prisoner who is not out on bail and not in court, a remote appearance is very controversial,” Mills said. She called video proceedings “very controversial” and said the practice is probably expanding, though reporters may not yet know of it.

The Federal Judicial Center surveyed 14 appellate court judges on videoconferencing and found that almost all those asked liked the practice for the time and money it saves.

The main drawback, the study found, was issues with the technology used, rather than complaints about public access or lack of personal interaction.

Read the transcript

In either telephonic or video hearings to which the public is shut out, the only option to learn what occurred would come from the court record, or a transcript of the proceedings.

These hearings “must follow all the same rules of hearings when someone is to be present,” at least in Florida state courts, Hines said. That means a court reporter must be there to record the proceedings, he said.

However, transcripts are not always made part of the court record and if a reporter — or member of the public — is required to purchase a transcript to learn what occurred, Mills said, it becomes tantamount to paying for a story.

“Forcing reporters to buy transcripts of telephone hearings forces them to buy access to public hearings,” she said.