Justices Consider Whether Skype Appearance Violated Juveniles’ Rights

Katie Stancombe for www.theindianalawyer.com

Indiana Supreme Court justices heard arguments in two consolidated and procedurally identical cases Thursday, questioning whether two juveniles who appeared at disposition modification hearings via Skype were denied their rights to be present.

The cases are C.S., Jr. v. State of Indiana, 19S-JV-00136 and Z.T. v. State of Indiana, 19S-JV-00137, in which the Elkhart Circuit Court separately adjudicated both C.S. Jr. and Z.T. as delinquents. A disposition modification hearing was later held for each, but both boys Skyped into the courtroom instead of appearing in person.

The Indiana Court of Appeals held, in part, that the juveniles’ appearances via video conferencing complied with Indiana Code section 31-37-18-1.3 (2007), noting that no requirements existed for a minor to be physically present at a hearing.

But both juveniles appealed, bringing before the high court the question of whether the boys were denied due process because, pursuant to Indiana Administrative Rule 14, they did not waive their right to be physically present by consenting to have the proceeding conducted via Skype.

Nancy McCaslin, representing both juveniles, argued the minors’ due process rights were violated by not allowing them to be physically present in the courtroom. McCaslin began by noting that several issues can arise if video conferencing transmissions occur in court, referencing statements made by the court reporter in both cases that noted much of what was communicated by the juveniles through the computer was indiscernible.

“These are some of the problems with Skype transmissions, because they don’t provide the privacy between attorney-client during the hearing,” McCaslin said. “They don’t provide for the court to see the demeanor of the young person. It is an impersonal way for a court to conduct a hearing for a juvenile.”

Justice Geoffrey Slaughter interjected, opining that the attorney and client’s inability to privately converse might still be a problem even if the parties had consented and complied with Rule 14(B). Justice Mark Massa agreed, arguing that Rule 14(A) explicitly allows courts to have detention hearings via Skype.

But McCaslin maintained that detention and disposition hearings are different, with the child’s future depending on the outcome of the latter. The problem is not whether the child is placed in the Department of Correction, she said, but the problem is with future harm. If juveniles feel they are being cast aside or uncared for by not being allowed to appear in court face-to-face with a judge, then they could rebel further.

“Navigating these turbulent waters of adolescence is not easy, and juveniles can become impersonal,” McCaslin explained. “The idea is to try and keep them from becoming criminals.”

Speaking as amicus curiae, Joel Craig Wieneke of the Indiana Public Defender Council, Juvenile Defense Project argued the right for an adult in criminal proceedings to be present at a hearing should also be extended to juveniles in non-criminal proceedings.

“That is such a core and valuable process to get the child to buy into the system, to understand what’s happening to him, to accept the rehabilitation that we’ve used that to deny children the right to a jury trial,” he said.

When asked how a judge could build a meaningful relationship with a child through a 10-by-12-inch screen, state counsel Andrew Kobe argued that both C.S. Jr. and Z.T. had already appeared face-to-face before the judge during previous hearings.

Kobe faltered, however, when asked whether an oral argument would be as effective if he Skyped in from the attorney general’s office rather than being there in person.

“But I think that creates a question that shows what this case isn’t about,” Kobe said. “This case isn’t about when we should have Skype or video conferencing, and when we shouldn’t. That should be left to cases in which it’s preserved.”

Kobe further argued no fundamental error was committed in either case, noting that because no objections were raised, no one knows that nature of such an error would be.

“The state agrees that it would problematic to have complete proceedings through the juvenile system through Skype,” Kobe said. “But that’s not we’re talking about here at all, not even close.”

Kobe added that because there is no right to be physically present to begin with, it would be difficult for the state to find a reason how that would be fundamental error.