Later this month, the Board of Governors will review a proposed rule amendment aimed at promoting the increased utilization of remote technology in specific criminal proceedings.
The Criminal Procedure Rules Committee has put forward an amendment that, unless there is a valid reason shown, would require judges to allow the use of remote technology in non-evidentiary hearings lasting 30 minutes or less.
Advocates argue that the existing rule grants judges excessive discretion to reject remote hearings, leading to a "lack of consistency not only among judicial circuits but also among judges themselves."
In a letter addressed to the CPRC in January, Ernest Chang, President of the Florida Association of Criminal Defense Lawyers, expressed concern over the adverse impact on lawyers, defendants, and victims in jurisdictions where certain circuits and judges have fully abandoned the use of remote technology.
At present, Rule 3.116 (c) states that "a judge may, at the court's discretion or upon written request from a party, direct the use of communication technology by one or more parties for attendance at a pretrial conference. However, before a judge may require the defendant's participation through communication technology, the defendant or their counsel must waive the defendant's physical attendance at the conference as per rules 3.180(a)(3) and 3.220(o)(1)."
The Supreme Court incorporated this rule in July 2022 as part of a comprehensive rules petition presented by its COVID-19 Workgroup.
During oral arguments, the FACDL contended that the rule did not sufficiently facilitate the use of remote technology.
The proposed amendment would establish: "A court official must grant a motion to employ communication technology for a non-evidentiary proceeding scheduled for 30 minutes or less, unless the court official determines that there is a valid reason to deny the motion."
The amendment further clarifies, "The defendant or their 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 January, the CPRC, comprised of defense lawyers, prosecutors, and judges, approved the proposed amendment with a vote of 24-8, with one abstention.
According to a staff analysis, the proposed amendment would align Rule 3.116 (c) with Rule of General Practice and Judicial Administration 2.530(b)(1).
In his letter, Chang argued that the discrepancy between the two rules results in differential treatment of criminal and civil lawyers, as well as similarly situated defendants.
"Non-evidentiary ministerial hearings do not raise any constitutional concerns. Therefore, it is illogical that civil practitioners can benefit from the convenience of remote proceedings while criminal practitioners are required to physically appear in court for non-essential and brief matters," wrote Chang.