Can You See and Hear Us, Ms. Smith?: Protecting Defendants’ Right to Effective Assistance of Counsel When Using Audio and Video Conferencing in Judicial Proceedings

Ivaylo Valchev | May 14, 2020

As new technology is developed and older technology upgraded, people find new efficiency and flexibility in virtually every aspect of their personal and professional lives. The judiciary and broader legal profession have found the influx of technology just as useful as other professions. However, as new technology continues to reshape the practice of law, we must be cognizant of its effect on judicial proceedings and vigilant in protecting basic Constitutional guarantees, especially for criminal defendants. While the twenty-first-century courtroom is wired to bring efficiency and flexibility to the practice of law, the very core of the judicial process is not modern displays but a document ratified in 1788. This Comment discusses how one emerging technology—audio and video conferencing—poses a risk to the right to effective assistance of counsel. The Comment advances three main arguments. First, the use of audio and video conferencing makes it more difficult for a criminal defendant to confront state witnesses. Second, the extent to which audio and video conferencing negatively impacts the right to effective assistance of counsel is dependent on the type of judicial proceeding. Lastly, the current constitutional tests for finding ineffective assistance of counsel are inadequate in cases where audio and video conferencing may be used.