Our court system (as well as our society in general) was completely unprepared for a pandemic. Few people in government and science had the forethought to anticipate the devastation that a disease like Covid could visit upon us, and of those who spoke up, most seem to have been largely ignored. So, when the tidal wave of illness hit, where did that leave us? It unfortunately left us with our proverbial pants down. Virtually every corner of every community was severely affected, from restaurants to airlines and from concerts to casinos. Courts, police, and lawyers were affected as well. Comprehensive solutions had simply not been put into place ahead of time.
In Chicago and other cities across Illinois, some courts were quick to react while others reacted slowly. Some court houses promptly shut down while others continued doing business as usual for many months thereafter. Cases piled up, police slowed down arrests, and defendants were left without any clear guidance about whether they should appear in court or not. Today, a patchwork of plans across Northern Illinois exists with virtually no two courthouses handling matters exactly in the same manner. But what do all these courts have in common? Something that many people had never even heard of before: “Zoom”.
Who’s Zooming Who?
Like “Facetime”, Zoom is a free app that allows multiple people to meet online and speak to one another for a variety of purposes. Primarily used for business meetings in the past, court systems across Illinois and the country were quick to adopt this as a partial solution despite some security and privacy issues. Some courts are now operating nearly 100% on Zoom, while others use a mix of Zoom and in-person court appearances. So, at least for the time-being, our courts are wedded to Zoom in one way or the other. Was it a long courtship leading up to this marriage? Not really. It was more a wedding of convenience or a “shotgun wedding”. But here we are, nevertheless. Do you, court system, take this Zoom as your lawfully wedded app? Let’s examine whether this marriage is for better or for worse—
Zoom to the Rescue
When the pandemic hit, courts in Chicago and elsewhere had some difficult decisions to make. Some of their choices included:
- Closing down entirely and letting the cases pile up until the day came that they could safely reopen again. For a while, many courthouses did exactly this. March cases were continued for a planned reopening in April, but then April came and went as did May and June. It soon became clear that there could be no accurate prediction of when it would be “safe” to reopen and something needed to be done.
- Continuing to conduct business as usual – Many courts in Cook, Lake, Kane, Will, McHenry and DuPage counties did this to one extent or the other. Defendants, court personnel and attorneys were all instructed to wear masks and maintain social distancing when attending court. Some courthouses quickly erected acrylic and plexiglass to prevent the spread of disease, while others were slower to act. But by August, most courts in the Northern District of Illinois understood that 100% “business as usual” was unsustainable if the goal was the prevention of disease.
- Employing Zoom in some manner – This ultimately became the obvious choice for courts that wanted to avoid the spread of Covid and also wanted to avoid the certain damage that would result to the legal system by shuttering the doors to the courtroom for an extended period of time.
Top 5 Worst Things About Zoom Court
- People behaving badly – Many defendants and lawyers had never heard of Zoom before this app was thrust upon them. It soon became clear that not everyone is technologically savvy. After all, a certain percentage of our population still bangs their TV remote on the coffee table to get it to work. So, what did you expect? Unsurprisingly, people sometimes show up on Zoom Court missing very important items of clothing or eating yesterday’s pizza for breakfast on camera. Even some lawyers have been spotted appearing in court from beneath the covers of their bed. Others cannot seem to locate the “mute” function and carry on sometimes very personal conversations in front of the courtroom. Although the results are sometimes very amusing, they can also be very detrimental to the judicial process and may even constitute “contempt of court” in some circumstances.
- Lack of Privacy – Criminal and most other court proceedings (excluding juvenile court) are open to the public by law. But before Covid, the only people who typically went to the courthouse were lawyers, defendants, prosecutors and victims. Now, Zoom court proceedings are broadcast for anyone to see. Now, co-workers, ex-spouses, neighbors, bosses, stalkers, and children can have easy access without driving to the courthouse. This isn’t a problem in and of itself because there’s nothing wrong with public access. The potential problems involve people with bad intentions taking part, which may result in:
- “Zoom Bombing” – People unassociated with the court proceedings have appeared online and impersonated judges and defendants. Others have created disruptions or made threats against the court and court personnel.
- Disclosure of Sensitive Information – A great deal of personal information is sometimes disclosed during Zoom Court. Official court documents are viewable during a “screen share”, very specific details of crimes are discussed, and a defendant’s criminal history, along with psychological/medical information is often disclosed during sentencing; things that would typically not be audible to court visitors sitting in the gallery.
- Potential for criminal activity – For a great many years, people with bad intentions have used publicly available information to blackmail defendants charged with prostitution / solicitation or merely to cause trouble for others. The very sensitive data that such people now have access to has been expanded. People with “an axe to grind” may unfortunately use this information to destroy the lives of others, especially on social media.
- Lack of Control – In a physical courtroom, a judge can see and control all aspects of the court proceedings and use the court bailiff or sheriff to maintain proper order and decorum. But on Zoom, the following matters are sometimes difficult or impossible to control:
- Exclusion of witnesses – During a criminal or traffic trial, a “motion to exclude” is a typical motion that is enforced to prevent one witness from hearing what the other witness is testifying to. But during a Zoom trial, it’s virtually impossible to be sure that other witnesses (or people listening on their behalf) are not violating this important court order.
- Coaching Witnesses – In traffic or criminal trial or motions, lawyers and other people are not allowed to coach witnesses, tell them what to say, or show them notes. On a zoom proceeding, preventing this from happening can be a challenge.
- Unauthorized recording or videotaping – Recording of court proceedings is generally against the law without specific permission from the judge. As a matter of fact, in some courtrooms, merely having your phone on is a violation of court order and may be considered contempt of court. Policing this during a Zoom hearing is also virtually impossible to do.
- Judging Demeanor of Witnesses – During a criminal trial or a motion, one of the most important things that a judge does is to examine how a witness speaks and acts on the stand; this relates to defendants as well as police officers and witnesses. A determination of their credibility and truthfulness is vital to a judge’s final decision regarding guilt or innocence. Although some have said that Zoom is even better for this purpose in that a judge can see the person’s face up close on the screen, others point out that other body clues can’t be seen, such as whether a person’s hands are shaking or who he/she is looking at in the courtroom.
- Time Considerations – Sometimes, Zoom court proceedings are a savings of time with cases that are handled quickly without the necessity of travel to a far off courthouse. Oftentimes however, proceedings take far longer than usual (or require unnecessary continuances) due to a variety of issues such as:
- Technical problems related to delayed opening of the room or delayed admittance of participants from the “waiting room”;
- Participants that cannot understand how to operate the “mute” function and disruptive participants;
- Problems in communication between prosecutors and defense attorneys related to negotiation of plea arrangements, despite the availability of “private chat” and “break-out room” functions;
- Necessity of contacting prosecutors in advance to negotiate plea arrangements along with the necessity of drafting of court documents also in advance, then sending, signing, scanning, filing of these documents before the Zoom court proceeding.
Zoom Will Remain Part of the Solution
There are undoubtedly problems with Zoom. But no one has ever caught a disease through a computer, so as long as this pandemic continues to exist, solutions like Zoom remain the best chance of stemming the tide of illness. Criminal and traffic courts were never designed to work with Zoom, so this last-minute marriage of law and technology continues to experience significant growing pains with some “for better” as well as a fair share of “for worse”. Hopefully, the courts’ abilities to manage Zoom will improve over time and some day soon, we’ll be able to return to court as usual.
Mitchell S. Sexner & Associates LLC practices in the areas of criminal, traffic and injury law and can be reached 24/7 at (312) 644-0444.