Florida criminal defense attorneys voice support to apply administrative rule to pretrial remote criminal proceedings.
In our latest installment of Devising Depositions: Readback’s Monthly Meet and Confer, we considered remote technology in criminal depositions and one federal court’s assessment of a raised Sixth Amendment right to confrontation and effective assistance of counsel. Whereas civil proceedings have arguably seen a smoother transition to remote technology, our look at that Second Circuit district court decision served as a reminder that remote technology impacts both civil and criminal proceedings. Just as states have amended rules of civil procedure to accommodate a post-COVID reality, so too have they re-examined rules of criminal procedure with respect to remote technology. One state of particular interest is Florida where a proposed amendment to the Florida Rules of Criminal Procedure 3.116 is currently under consideration. In today’s post, we’ll take a look at how Florida might take inspiration from its administrative rules to allow remote appearances, a matter often seen in state rules of civil procedure.
The Florida Supreme Court recently accepted public comment on this amendment presented by the Criminal Procedure Rules Committee and originating from the Florida Association of Criminal Defense Lawyers. If adopted, the change would align criminal procedure with administrative rules for remote appearances in civil non-evidentiary proceedings. Specifically, the proposed amendment would mandate that court officials “grant a motion to use communication technology for a non-evidentiary proceeding scheduled for 30 minutes or less unless the court official determines that good cause exists to deny the motion. The defendant or the defendant’s counsel must waive the defendant’s physical attendance at the pretrial conference pursuant to rule 3.180(a)(3) and 3.220(o)(1).” In effect, the proposed amendment to Rule 3.116 would mirror the approach to civil proceedings as articulated in Florida Rules of Judicial Administration 2.530(b)(1).
Comments for and against (though, overwhelmingly in favor of) this proposal echo sentiments expressed in other states such as California that are dealing with related or similar questions with respect to remote technology. With comments already submitted for consideration, let’s take a look at where Florida attorneys stand on the issue.
In what may be a criticism of at least part of the proposal, Florida attorney George Pavlidakey addressed the mandatory waiver of a defendant’s physical attendance, noting that Florida’s state constitution grants defendants the constitutional right to be heard in-person. But it is worth noting that Florida’s judicial system turned to remote technology as an option for criminal trials during the COVID-19 pandemic. As noted by the Florida Association of Criminal Defense Lawyers in its public comment, infra, Rule 3.116 currently allows judicial discretion with respect to remote appearances in criminal proceedings. With the state already making accommodations for remote technology due to COVID-19, some attorneys have voiced a desire to keep what worked during the pandemic, a sentiment expressed by Joseph Bodiford, a Florida attorney with experience as both a prosecutor and criminal defense attorney:
“We had mandatory virtual court back then, and we all made it work – ministerial hearings were short and sweet, and we all enjoyed more production time than ever. I found that defendant, victim, and observer attendance was higher than ever. By adopting the proposed amendment, we would continue that practice and reap the same benefits.”
This is consistent with the sentiment expressed by Florida criminal defense attorney Derek Byrd whose public comment includes a line repeated by other attorneys supporting the change:
“It is important that the legal profession embraces technology. Remote hearings may be the only positive that we gleaned from the pandemic. Its use should be continued.”
Florida criminal defense attorney Anthony G. Ryan voiced a similar argument in support of the proposal, referencing an axiom offered by former California Governor and U.S. Supreme Court Chief Justice Earl Warren to make his own argument for a forward-thinking approach to technology:
“As an attorney who has practiced criminal law for more than twenty-five years, I understand the reticence of some to fully embrace this new way of practicing law that was literally thrust upon all of us out of necessity. But now that we have been dragged kicking and screaming into the future, there really is no going back.
‘I am a slow walker, but I never walk backwards.’
Earl Warren, slightly misquoting Abraham Lincoln.”
Another argument suggests that the amendment could benefit other parties to criminal proceedings who also seek relief provided by remote technology. In his public comment to the state supreme court, Florida attorney Jason H. Haber highlighted the convenience remote technology can provide:
“While I do not practice criminal law, in my practice I often represent domestic violence victims and other persons interested in criminal cases. The use of remote technology greatly enhances my clients’ ability to stay informed on the progress of their cases and limits the hardships required to be incurred by them to do so, such as taking time off work or finding child care so they can attend court hearings. This, in part, is their right under the Marsy’s Law amendment to the Florida Constitution, as you know.”
The proposed amendment to Rule 3.116 represents yet another instance where states are being asked to keep what works and authorize remote access in the spirit of accessibility, uniformity, cost savings, and efficiency. Even in the context of criminal proceedings, Florida attorneys are voicing their support for modern tools. The Florida Association of Criminal Defense Lawyers makes this point succinctly in its public comment supporting the proposal:
“Attorneys, litigants, clerks of court, and judges have proven that remote appearance technology can be implemented successfully and that it is a useful tool in maximizing time and efficiency. Attorneys across the state have proven that they understand that appearing before a judge remotely is no different than appearing before the judge in court. There is no reason to believe that criminal law attorneys will not practice in the same professional manner as their civil colleagues. Moreover, there are jurisdictions within Florida that have embraced a hybrid model that allows the courtroom to function as both a physical and remote space. Adoption of this rule will result in this model becoming the norm. In doing so, the criminal court system will enjoy the efficiency of the remote hearing system, while not foreclosing the option to appear in person.”
When it comes to deposition reporting, Readback is a modern tool for modern, forward-thinking attorneys. Readback combines state-of-the-art technology with a human guardian to ensure that the deposition runs smoothly, and a team of human transcribers to ensure a verbatim transcript. Active Reporting, Readback’s flagship service, provides certified transcripts in one day, rough drafts in one hour, and access to near-time text during the proceeding, all at low, flat rates. The result is an empowering remote deposition experience that gives attorneys more control over the process. Visit our Frequently Asked Questions page and see what Readback has to offer.
* Disclaimer: Readback is neither a law firm nor a substitution for legal advice. This post should not be taken as legal opinion or advice.
