Traverse City Record Eagle: Zoom a boon for courtroom victims, witnesses

By August 17, 2020September 19th, 2020No Comments

TRAVERSE CITY — The living room couch tends to be a comfier spot than the wooden pews and aged upholstery found in local courtrooms.

Many victims and survivors agree, some court officials are finding.

“It has absolutely helped some victims,” said Grand Traverse County Prosecutor Noelle Moeggenberg.

In the county, the most recent victim-intensive matters were conducted in person because of a then-dropping, now-rising coronavirus case count. Still, she’s handled several other cases where the virtual setting offered notable benefits.

“I had one (personal protection order) victim who was extremely nervous about being in the same vicinity as the defendant,” Moeggenberg said. “Being able to stay at her own house … she was able to really focus better and testify about what happened without having to worry about her physical safety.”

Two victims in two recent felony domestic violence cases also noted the ease of on-screen appearances, she added.

Video testimony could be a boon in cases involving child victims too, said Sue Bolde, executive director of the Traverse Bay Children’s Advocacy Center.

The organization works closely with law enforcement, prosecutors and Child Protective Services on cases. Most begin with introducing a suspected victim to a trained forensic interviewer.

Those trauma-informed interviews are hosted at the CAC in spaces designed to help younger visitors relax, Bolde said. Recordings of those chats are shared with investigators, she added, but aren’t admissible in court — something she’s long pushed for.

“It’s much less traumatizing for the child,” Bolde said. “You get a much more comprehensive sense of what’s going on, as opposed to if they go to court and they’re afraid.”

Virtual platforms have great potential in that aspect, Bolde added — and would do well as a permanent substitute for bringing children into a courtroom.

She feels modern-day courtrooms simply don’t serve a child’s needs.

“It’s too hard to expect them to recall what’s often the most difficult time or most painful experience of their lives in a courtroom full of strangers — most of whom are adults — with the (defendant) sitting right there,” Bolde said. “Very traumatic.”

Locally, the chosen medium is video-calling program Zoom. Its courtroom use began in mid-April, when it was clear government-imposed COVID-19 restrictions could last a while.

Courts couldn’t put off their dockets entirely, so the Michigan Supreme Court established a guide for hearings to be conducted virtually.

Normally, defendants can attend arraignments and a short list of other court actions remotely, but felony sentencings, preliminary exams and most other hearings must be conducted in-person. The higher court lifted those restrictions amid the COVID-19 pandemic.

Early on, courts prioritized pressing criminal cases, 13th Circuit Court Judge Kevin Elsenheimer said earlier this year. Case prosecutors, defendants, court recorders and defense attorneys appear from their living rooms, offices or any other socially distant spot of their choosing.

The practice soon expanded to make a dent in the number of backed-up civil cases and address lingering felonies and misdemeanors.

There are some kinks in the system, Elsenheimer said, but he has also seen benefits for victims in his Zoom courtroom. Still, proceedings have hit bumps, like static-laden calls and audio problems.

“In terms of people’s comfort level, I think there has been an improvement,” he said. “(Zoom) is a very different thing, and (it’s) probably far less intimidating to be part of a hearing from your E-Z Chair.”

But the videochat venue will eventually face a significant challenge — one at a Constitutional level.

The 6th Amendment outlines each person’s right to a fair and speedy trial by jury. The amendment’s confrontation clause grants a defendant the right to face, or “confront,” their accuser, Elsenheimer said — which could prove problematic.

He suspects courts will be called upon post-pandemic to test the program’s constitutionality.

Some victims, too, find no solace in having their face and testimony on the internet.

Court streams, aired live on YouTube and typically deleted soon after, contain a warning against recording or taking screenshots. But as Moeggenberg knows, not everyone follows the rules.

For some, it just adds another layer of anxiety.

“If you’re in the courtroom, you know who’s there watching you,” she said. “But when you’re on Zoom and it’s on Youtube for anyone and everyone to see, victims worry about, ‘Is his whole family watching?’ ‘Who is watching?’”

Elsenheimer also noted the value of letting juries see a witness’s mannerisms and demeanor during trial — especially in more serious criminal cases. It’s something difficult to review via Zoom.

Moeggenberg suspects the platform will be useful for remote hearings, like arguments before the Michigan Court of Appeals that otherwise require hours of travel. Zoom will also be an efficient tool for defense attorneys who bounce back and forth between Bellaire and Traverse City courthouses.

For now, Moeggenberg knows that as long as the pandemic continues, the new virtual norm is here to stay.