Checking the views: Above, Vigo County Circuit & Superior Courts Systems Administrator Joe LaBree describes how livestreaming technology is used for various hearings. Tribune-Star/Joseph C. Garza
Checking the views: Above, Vigo County Circuit & Superior Courts Systems Administrator Joe LaBree describes how livestreaming technology is used for various hearings. Tribune-Star/Joseph C. Garza
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When Terre Haute attorney Michael Ellis and his clients appeared at a bankruptcy hearing recently, they didn’t have to travel to the federal courthouse on Ohio Street.

Instead, they each appeared via video from different locations, as did the bankruptcy trustee who administered the case.

“My client was able to stay home taking care of two disabled children,” Ellis said. “Her husband was at work. He took a break and called in to the hearing. She didn’t have to get child care. And I didn’t have to go to court. It was just as successful, and it got the job done.”

In Vigo County trial courtrooms, defendants and plaintiffs with internet access are also attending criminal and civil hearings remotely. And the public has been able to watch the judicial system in action by tuning in to a statewide audiovisual communication network approved by the Indiana Supreme Court.

The network was put in place to comply with social distancing and stay-at-home orders issued during the coronavirus pandemic.

Despite the public’s affinity for televised courtroom debates and investigative rehashing of real crime cases, a prohibition on cameras in Indiana courtrooms has long kept video viewers out of trial action. The coronavirus pandemic changed that for the courts, to some extent, and for the public as well.

As one Terre Haute attorney said recently during a discussion of video court, “My wife used to watch all of the real crime shows on TV. Now she’s hooked on our courtroom livestream and she thinks it’s more interesting. She can see what I do in the courtroom.”

Many attorneys have been hesitant to talk on record about whether they like or dislike the video hearing process in case their comments or opinions are turned against them in future legal matters.

Vigo County Prosecutor Terry Modesitt said he believes the livestreaming and Zoom conferencing of hearings and trials has “worked fairly well,” minus some internet connectivity issues at times.

“When you think about it, it helps with security by allowing people to watch a trial from home rather than coming to the courtroom and having it jammed with people,” Modesitt said.

COVID-19 forces changes

Indiana’s court systems made multiple adjustments to continue functioning during the COVID-19 pandemic.

With the receipt of federal CARES Act funds last year, both state and federal court systems have added and supported technology to help courts function with social distancing and to become as paperless as possible.

It’s been a change that legal experts like Joel Schumm, clinical professor of law at the Indiana University Robert H. McKinney School of Law, have been watching with interest.

“I suspect there will be serious discussions and proposals to make cameras in trial courtrooms an option or even required going forward,” McKinney said. “The livestreams, which are optional, seem to have worked well. Many judges and lawyers are now more comfortable with cameras in courtrooms having lived through livestreaming the past year.”

Indiana has been historically “quite resistant” to allowing cameras in trial courtrooms, Schumm said. The exception has been webcasts of oral arguments in front of the Indiana Supreme Court and Indiana Court of Appeals for the past two decades.

In her recent State of the Judiciary address, Indiana Chief Justice Loretta Rush lauded the adjustments made by court staff around the state to keep the courtrooms active and the wheels of justice turning.

“Our judges were determined to keep courts across the state operational, and technology was the key,” Rush said. “We bought hundreds of Zoom licenses and laptops and we even built our own application to host live court proceedings online to make them available to the public. And you know what? People watched.”

Rush stopped short of saying whether livestreaming and remote hearings in Indiana would continue once pandemic-related restrictions are removed and courtrooms become fully open to the public.

Former Vigo Circuit Court Judge David Bolk, now a professor of constitutional law at Indiana State University, admits he was resistant to the use of video hearings.

“From my personal experience, I was not a fan of doing anything on video,” Bolk said of his 26 years on the bench. “I avoided that. For example, if someone who has been cooking meth appears on video, and all I can see is their face, I can’t see their hands to see that they are burned up from cooking meth. I can’t see that their hands are shaking. I can’t see they have four people in the gallery who they are making eye contact and signs with, or that they have 20 family members there in the courtroom who seem to be pretty supportive and want to get this person some help. Those are things you can’t get in a video proceeding.”

Since criminal trials continue to be conducted in person and witnesses still appear in courtrooms where the defendants can face their accusers, no constitutional issue is raised by video hearings, Bolk said.

For hearings in civil matters, such as contested family law cases, some contested hearings have been conducted electronically, but those don’t raise constitutional issues because the confrontation clause does not apply.

Having a video record is not necessary to the judicial process.

Each Indiana court must make an audio recording of hearings and trials in case an appeal is filed. When an appeal happens, the transcript is prepared and the Indiana Court of Appeals bases its decision on the wording in the transcript. The appeals court is not going to watch hours of video in a trial; they will read the transcript.

An area in family court that has benefitted from video access has been adoption hearings, which are confidential.

Bolk said clients who are out of state can attend hearings via Zoom if the presiding judge finds that acceptable.

Bolk, who now handles family law cases in addition to his ISU duties, said he handled an adoption hearing recently for clients in Missouri who appeared via video.

“I don’t know if that would have happened a couple of years ago,” he said of the use of Zoom video. “It is also nice if you have people from around the country who wanted to watch an adoption so they can be included in the happy event.”

‘Court didn’t stop’

When the Vigo County Courthouse hallways fell silent in spring 2020 as part of the social distancing effort, it was in stark contrast to previous days when courtrooms had bustled with activity as defendants and attorneys appeared for hearings.

By order of the county commissioners, appointments had to be made for those doing business with offices in the courthouse, and visitors were screened for coronavirus symptoms and required to wear masks.

Prior to COVID-19, Vigo County was among a few Indiana counties that periodically utilized video connections for remote hearings between courtrooms and jails to dispense with inmate transport. The public, however, had no access to that video outside of sitting in the courtroom to watch video monitors with court staff.

Some logistical and technology issues prompted the courts to stop using that system a few years ago. Only one court at a time could use the video connection to the jail, and hardware issues did not maintain a stable connection for voice and video, which was frustrating to attorneys and judges.

Joe LaBree, information technology manager for the county courts, said ongoing upgrades to the system since the pandemic have increased bandwidth to stabilize the ability to send out and receive more information faster. That has stabilized audio and video for remote hearings.

“Court didn’t stop. Only the trials did,” LaBree said. “We still had hearings.”

Livestreaming in-person jury trials, which were allowed to resume March 1, has been more challenging.

The first challenge was going from no courts using video to six courts being able to run video and livestream in the span of a week.

“Some issues had to do with hardware capabilities of cameras, how the hardware runs with the software we are using, how secure the software is that we are using, and really just putting it all together in a way that not only works, but is simple enough for everyone to use, and stable enough to use multiple times a day,” LaBree said.

Indeed, judges quickly became adept at starting and stopping the livestreaming of court hearings.

For the more complicated jury trial settings, LaBree has been in the courtroom to handle the technological aspects of public access to trials.

It is important to note the public is prohibited from recording any court proceeding that is livestreamed, and video is not archived by the courts. The public has a choice of which court proceedings to livestream by going online to https://public.courts.in.gov/incs#/.

Advantages and disadvantages

Judge Michael Lewis of Vigo Superior Court 6, said he thinks the Vigo County court staff has become comfortable with streaming hearings.

“Some courts still do not stream everything, and this is due to either confidentiality of the type of hearings or information that is contained within the hearing,” Lewis said.

The county’s courtrooms are limited in space, so even pre-pandemic, it was a tight squeeze to get 75 potential jurors seated in the gallery for the selection process.

To allow for social distancing, the courts made arrangements with local agencies that had large gathering spaces to spread potential jurors. Once 12 jurors and two alternates were selected in those venues, the trial process returned to the courtrooms where the jurors were again socially distanced throughout the gallery and jury box.

Safety guidelines also meant no paper or other evidence objects could be handed to jury members to examine during trials. The courts set up a few video monitors in the courtrooms so images of documents and evidence could be shown while staying touchless for the jury members.

“With the lack of space in a courtroom, that is really where the streaming of the trials has helped a great deal, in that we do not have space for the public or even any visitors in the courtrooms,” LaBree said.

Lewis said the livestreaming did not, however, have much effect on reducing the backlog of criminal cases in the courts. But, the backlog did not get as out of control as it could have without the video hearings.

“The livestreaming really only helped facilitate the ability for the public to be able to see and hear the court proceedings,” Lewis said. “The remote hearings part of the video equipment in the courtroom did allow us the ability to hold hearings even when we were under the peak COVID-19 waves, without putting any parties in danger,” he said.

The system still has its disadvantages.

With jail video, for instance, the number of inmates allowed in the video room still must be limited. That creates a delay as the next group of inmates are brought into the video room for hearings.

Technology manager LaBree said video rooms are being included in the new Vigo County Jail now under construction to more easily accommodate hearings for defendants in custody.

“Many of our courts have been weaving in live parties between video parties to reduce the amount of downtime and waiting between cases,” Judge Lewis said. “In some other situations, there could be glitches in the video depending on outside parties’ connection strength or equipment.”

Some defendants and litigants connecting from home use older laptops or cell phones that might not maintain a stable connection during the video hearing.

Quality in the electronic hearing is essential, because a good record is needed in case the information becomes part of a defendant’s appeal.

The video technology has also been useful in civil cases, such as small claims hearings.

“Some of our civil hearings were the first to use video testimony from a remote witness during a hearing,” Lewis said, “as well as displaying videos over the feed to testify about.”

While the increasing use of video in criminal and civil cases has helped to protect defendants, court staff, lawyers and the public from exposure to COVID-19 in the courtroom, it also carries the potential for some constitutional downsides.

Defendants do have the right to be present during hearings, confront witnesses and to communicate privately with their counsel. Another constitutional issue impacted by the pandemic is the right to a speedy trial.

The Indiana Supreme Court has not set an expiration for its emergency order permitting expanded remote court proceedings. Any decision about the future of video recordings in the courtroom will come from the Supreme Court.
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