High court further expands video, phone proceedings during COVID-19

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The Indiana Lawyer on 5/14/2020 by Katie Stancombe

Indiana Supreme Court justices have permitted the expansion of remote proceedings until further order amid the coronavirus public-health emergency.

“Pursuant to Indiana Administrative Rule 17 and this Court’s inherent authority to supervise the administration of all courts of this state, the Court finds that the trial courts’ efficient and effective operation to hold timely hearings and dispose of cases requires broader authority to conduct court business remotely,” says the order signed by Chief Justice Loretta Rush.

The order broadens Indiana Administrative Rule 14, which governs trial court use of telephone and audiovisual telecommunication. The order provides that courts may use audiovisual communication to conduct proceedings whenever possible to ensure all matters proceed expeditiously and fairly under the circumstances. That includes all proceedings in felony cases, including guilty pleas; sentencings where the defendant waives the right to be present in court; and any other proceeding with witness testimony where the defendant waives the right of confrontation.

Additionally, any party not in agreement to the manner of the remote proceeding must object at the outset of the proceeding, on the record, and the court must make findings of good cause to conduct the remote proceeding.

The court may also use telephonic communication for the proceeding for a party or witness if the court finds audiovisual communication is not possible, practical, or safe for a victim, and no party will be prejudiced, the order states.

Likewise, the order says all proceedings must be consistent with a party’s constitutional rights.

Once jury trials can resume by order of the Supreme Court, parties may agree to use audiovisual communications, consistent with the order, to select a jury. In civil jury trials, the parties may also agree to conduct the entire trial using remote audiovisual communications, the order says.

Courts may allow a witness to testify remotely except in criminal proceedings involving the right of confrontation or the right to be present, absent personal waiver.

Lastly, the court must also create a procedure for creating a recording, at every stage of the proceeding, sufficient to enable a transcript to be produced for the record on appeal.