With the sudden spike of the Omicron variant, New Hampshire courts are again expanding reliance on remote proceedings to avoid disruption of court operations during a public health crisis. At the onset of the pandemic, the New Hampshire Supreme Court issued a series of emergency orders authorizing video and telephonic hearings for certain proceedings during established periods of time. See generally https://www.courts.nh.gov/covid-19. Under federal law, the Coronavirus Aid, Relief, and Economic Security (CARES) Act, Public L. No. 116-136, § 15002, 134 Stat. 281, 527-30 (2020) authorized federal courts to expand the use of video and telephone conferencing for certain criminal proceedings.
On November 24, 2021, in State v. Williams, __ A.3d __, 2021 WL 5500541 (NH 2021), the Supreme Court considered the defendant’s challenge to a telephonic hearing. The Court affirmed the trial court’s denial of a due process challenge to the imposition of a portion of Williams’ suspended sentence at a telephonic hearing. Prior to the pandemic, the State had moved to impose Williams’ suspended sentence based on new allegations of theft and identity fraud. On March 2, 2020, the trial court held an in-person evidentiary hearing and issued a narrative order on March 26 finding that the defendant had breached the condition of good behavior of her suspended sentence, which warranted imposition of “a reasonable portion of the suspended sentence.” In the interim, the Supreme Court issued emergency orders suspending all in-person circuit court proceedings due to the pandemic, with an exception for “[p]roceedings necessary to protect the constitutional rights of criminal defendants.” See Williams, 2021 WL 5500541 at * 5 (citing to emergency order).
Two weeks later on April 6, pursuant to the emergency orders, the trial court scheduled a telephonic hearing to decide how much of the defendant’s suspended sentence to impose. Before the telephonic hearing began, Williams objected and asserted her state and federal due process rights to be physically present to defend her interests at the hearing related to her incarceration. She requested a continuance until the Courts re-opened for in-person hearings. The trial court denied the continuance, held the hearing telephonically, and imposed a period of incarceration under the suspended sentence.
On appeal, Williams argued that she had a right to be present to defend her interests at a critical stage of the criminal proceeding. She relied on state and federal cases establishing a due process right to be physically present at sentencing hearings and probation revocation proceedings. See id. In affirming the trial court’s ruling, the Supreme Court noted that the “requirements of due process are flexible.” It found that “the imposition of a suspended sentence is not part of a criminal prosecution and thus the full panoply of rights due to a defendant in such a proceeding does not apply.” Id. (citations omitted). The Court determined that the defendant had misplaced her reliance on due process protections afforded at sentencing hearings because, unlike an initial sentence, the imposition of a suspended sentence is remedial rather than punitive. Id. The Court also emphasized that the trial court had held an in-person evidentiary hearing on the State’s motion to impose the suspended sentence, the defendant was represented by counsel at the telephonic hearing, and she was allowed to address the Court concerning how much of her suspend sentence should be imposed. The Court thus concluded that “the defendant has not demonstrated that her physical, as opposed to telephonic presence at the April 6, 2020 hearing ‘would have been useful in ensuring a more reliable determination’ as to how much of her suspended sentence to impose. Id.
Beyond telephonic hearings, there is considerable debate about the expanded use of remote video technologies in the long term. Remote proceedings implemented well can offer substantial benefits in some criminal matters, offering expanded access to justice to indigent clients, avoiding the costs of travel, and allowing for shorter periods of missed employment. But many defense counsel also have serious concerns, including client access to necessary technology and connectivity, the detrimental impact on the attorney-client relationship, the potential effect on the perceived credibility of witnesses, and client disengagement with judges and the judicial process. There is a plethora of ongoing research by psychologists and social scientists on the potential effects of remote proceedings and to what extent they may alter the outcome of cases. See generally, Brennan Center for Justice, The Impact of Video Proceedings on Fairness And Access to Justice in Court, (September 10, 2020) (discussing research studies).
Remote participation at court proceedings will no doubt continue to be a vital tool in the midst of this lingering pandemic. But the use of remote hearings raises critical questions about the short-term and long-term impacts, both positive and negative, on the rights of litigants. Members of the NH bar should continue ongoing discussion of potential risks. It will be critical for the bar to remain focused on possible ways mitigate actual, potential and/or perceived harms arising from remote hearings.