By Taylor Smith and Tommy Nguyen
SACRAMENTO, CA – The Judicial Council of California this past week here at the State Capitol proposed amendments to legislation that addresses criminal remote proceedings and provides instructions on the appearances of the parties.
Assembly Bill 199 is the budget bill on courts which authorizes criminal remote proceedings by amending Penal Code sections 977 and 1043.5 and Government Code section 7165.1, which deals with the accused’s presence in court proceedings, adding to them Penal Code section 977.3.
This bill – effective July 1, 2022 – extends the courts’ ability to hold criminal proceedings remotely after emergency rules 3 and 5 of the California Rules of Court beyond the former termination date of June 30, 2022.
Like the emergency rules currently in place, AB 199 still requires the accused’s consent, and the court still maintains the right to require the physical presence of any defendant in a felony proceeding.
Currently, the legislation allows accused and witnesses to appear remotely under certain circumstances.
In misdemeanor cases, the accused may appear remotely for everything except a trial, if a trial is necessary. Attorneys are also allowed to appear remotely if the court approves it.
As for felony cases, the same rules apply to the accused as in misdemeanor cases, but the court may waive the accused’s presence for parts of the trial where their presence is not necessary; this is mainly limited to portions of the trial where no testimonial evidence is taken.
Once again, the same rules apply to attorneys in felony cases as in misdemeanor cases.
Witnesses are to testify in any misdemeanor or felony criminal proceeding, with the exception of felony trials, through the use of remote technology, and only with the consent of the parties on the record and the court.
Regarding court reporters, they must be physically present in a courtroom when the court conducts remote proceedings that need to be reported. The Trial Court Employment Protection and Governance Act is amended to ensure trial courts cannot retaliate against a court reporter for reporting technology or audibility issues.
The legislation also aims to improve the administration of remote hearings by focusing on eliminating potential audibility or technology issues. Courts will now have a process for participants to raise concerns about any technology problems before and during a proceeding.
An individual appearing remotely may be required to come in person in case the court is unable to seek resolution for any arising audibility issues in a reasonable amount of time. The Judicial Council is directed to adopt the rules and standards necessary to implement the provisions of the statute.
Besides addressing criminal remote proceedings, the legislation amends the procedure for personal appearance waivers by a felony accused.
The waiver of appearance is allowed to be entered personally by the defendant, or the defendant’s counsel, as long as the defendant has been “advised carefully of their rights at all stages of the proceedings,” and that the procedure is to be followed through entirely.