Due to the COVID 19 pandemic, courts across the state and nation had to quickly revise their standard operating procedures. Gone were the days where courtrooms could be packed full of defendants and attorneys awaiting their moment before the judge. Now, handfuls of faces are scattered across large television screens via Zoom or Webex. As the pandemic's force seems to be abating, courts are left with a quandary, “do we keep virtual hearings or do we return to in-person hearings?”. Many attorneys and courts are weighing in on this issue, discussing what is lost and gained on both the criminal and the civil side of the court system.

Because we are Seattle DUI lawyers, we have numerous court appearances each week.  There certainly is a benefit for not having to travel lengthy distances for a relatively short and non-essential court appearance.  When a person is charged with DUI in Seattle or Washington State, they typically have at least 3 (many times much more) court appearances each week.

In a recent article, Federal Court Judge John C. Coughenour, outlined some of the major pros and cons of zoom and whether he believes it is here to stay. Some of the pros outlined are the perceived efficiencies of short hearings such as continuances or setting motion dates, and attorneys and clients alike not needing to drive endless hours and miles to attend a court hearing that could individually be less than 5 minutes in front of a judge.

While there are definite pros to virtual hearings, the cons that Judge Coughenour outlines are worth generous consideration. There is no experience quite like seeing a judge come out and take their place at the top of the courtroom and a bailiff calling court into session. The ceremony and tradition is something that adds to the weightiness and importance of the legal experience. When one is in court cell phones are turned off and the focus is on the proceedings in the courtroom. Distractions are minimized or eliminated. Compare this to being at home, children are in the background, dogs are barking, roommates are also trying to work remotely and taking calls, the lawn needs mowing or the kitchen cleaning. We are distracted. This takes away from the experience of the courtroom and undermines the importance of the proceedings we are experiencing.

There is another important aspect that is lost via zoom that Judge Coughenour astutely points out—lack of empathy. As a juror one is the fact finder in any case, they listen to the argument, the testimony, they can see the defendant and the witnesses up close. The event is real, the people are real, this is a serious life event for that person, and when the jury is there and can see the person they are able to empathize with that person more easily—whether it be victim, defendant, or witness. Judge Coughenour likens criminal zoom jury trials to drone attacks—the people the drone is attacking is removed from the controller, like a video game that person is faceless and not real so empathy is lost. While some convictions result in a day of jail, some are for life, and regardless of how long the sentence could be on a charge, it is still impacting someone's life and freedom and empathy should not be lost or forgotten in this process.

The jury argument is also being used as a pro because persons are able to be at home, and work while they wait to be questioned by the attorneys rather than wait in a jury waiting room unable to get proper internet connection and losing days of work. While this is a reasonable argument, I would dare to counter that with the question, “is a jurors comfort more important that a defendant or parties constitutional rights and freedom?”

So what is the solution to this quandary? Maybe it is a mixed system where one can attend nonessential hearings virtually but for essential hearings such as DUI arraignments, evidentiary motions, and trials, they must appear in person with no zoom option available. For our clients, we have elected to appear via zoom hearings such as continuances and when the courts allow us arraignments. However, we strongly believe that our clients have a right to question in person the officers and other persons involved in the incidents face-to-face. We believe the right to confront your accuser is an essential element of the system and we fight to ensure that our clients retain these rights throughout the pendency of their case.

Having two decades of experience representing those accused of DUI in the greater Seattle area, the attorneys at Wolff Defense have adapted to the new normal of remote court appearances while also protecting their clients rights to ensure they are afforded every legal protection in the system.