Virtual hearings may have been a necessary precaution for the past 14 months because of the pandemic, but a new report from the National Juvenile Defender Center says they take a toll on the legal rights of juvenile defendants and should not remain a normal practice once it’s safe to gather in court again.
Defense attorneys often find it difficult to communicate effectively and confidentially with their young clients and to bridge the “digital divide” because some children and families don’t have access to high-speed broadband or related tools, the report says. This violates children’s rights to equal treatment under the 14th Amendment, particularly children of color.
Influential judges in many jurisdictions are weighing whether to continue using the format regularly in the future. In Texas, for example, influential judges on a Zoom news conference last month pointed to what they see as the “immediate and lasting positive consequences” of remote hearings and suggested to continue using them in the future.
The judges said children, as digital natives, seem to feel more comfortable testifying from the privacy of their own bedrooms rather than in the often intimidating atmosphere of a courtroom. The online format also allows parents to testify during work breaks rather than having to take hours or a whole day off to travel to court. It can also allow rural judges to be more efficient and available because they needn’t travel so much to distant courthouses.
But the defenders say those efficiencies come at a cost that judges and others may not have fully considered, the report states. “The fear is that such emergency usage could lead to permanent usage post-pandemic, especially given efficiency advantages enjoyed by some court system stakeholders who are not ethically or constitutionally responsible to an individual client.”
For example, many of the defenders interviewed for the center’s report said they found it hard to build crucial rapport and trust with kids only via text, phone or videoconference. And they’re concerned that kids might not always speak freely because of fear that a facility staffer or a caregiver might be able to overhear the conversation.
After the pandemic, the report recommends that juvenile courts discontinue all virtual hearings, saying the court’s convenience shouldn’t come at the cost of kids’ constitutional rights. It also recommended that courts hold online hearings only when they can ensure equity and bridge the digital divide.