Why Skype Is a Bad Idea for Arraignments

, New York Law Journal

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Michael S. Pollok rightly decries New York's failure to comply with the constitutional command to provide counsel at arraignments in many areas of the state, a violation that is only now beginning to be addressed in the wake of the Court of Appeals' ruling in Hurrell-Harring v. State of New York, 15 N.Y.3d 8 (2010) ("Use Video Hook-Ups for Arraignments," Jan. 15, 2014).

But his prescription for a quick cure, the use of Skype or other audio-visual applications to facilitate arraignments is a bad idea. Shortcuts that separate clients from their lawyers, or keep defendants from actually appearing in a courtroom, degrade the attorney-client relationship and the proper functioning of the courts.

Arraignments conducted via Skype or other remote audio-visual applications interfere with the development of trust between attorney and client, and can seriously interfere with a lawyer's ability to effectively advocate for a client. The closed-circuit process offers defense lawyers two equally objectionable choices: to be physically present in a detention facility with a client, or in the courtroom with the judge and prosecutor.

In the former situation, a defense lawyer's ability to advocate for a client is diminished by his or her absence from the courtroom, the locus of authority and decision-making. In the latter situation, counsel cannot stand by the client's side during the arraignment process, the critical first stage in most attorney-client relationships.

The physical separation of attorney and client inevitably results in poor communication, a situation that is only made worse when the client has special needs, such as language difficulties or mental health issues. In one New Jersey study, 68 percent of the clients arraigned by closed-circuit television did not get to speak to an attorney during the bail hearing, and an overwhelming 96 percent did not get to speak to an attorney following the hearing.

This lack of communication can only serve to alienate attorney and client during this important early phase of their relationship. In addition to the fixing of bail, judges make determinations during an arraignment that can have wide-ranging consequences for criminal defendants.

Judges must decide at the arraignment whether to refer an apparently mentally unstable defendant for psychological testing to determine competence to stand trial, or whether to issue a temporary order of protection to protect a crime victim, or whether to suspend a defendant's license to possess a firearm, or to drive a motor vehicle.

In order to make any of these discretionary judgment calls, judges must have the ability and means to size up the defendant, a difficult and largely intuitive process that would be seriously impaired if judges were relegated to making decisions based on whatever information could be gleaned from the defendant's image and voice on a computer screen. When the accused is not physically present in the courtroom, the court cannot get a full spectrum of nonverbal cues about the defendant's character and trustworthiness. The defendant is likewise deprived of an opportunity to personally engage the judge when endeavoring to convey sincerity and respect for the legal process. See Ann Bowen Poulin, Criminal Justice and Videoconferencing Technology: The Remote Defendant, 78 Tul. L. Rev. 1089 (2004).

Audio-visual arraignments are destructive of the rights of criminal defendants and are inconsistent with the deliberative process of the courts. As we struggle to implement Hurrell-Harring's promise and command, we must resist the easy temptation to water down the right to counsel itself.

Jonathan E. Gradess
The author is executive director,
New York State Defenders Association

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