In-Person Oral Argument Should Go the Way of the Dodo


“May it please the Court. . . “

It’s one thing for the Guv to announce that we can now eat at restaurants, and a good thing too, since we’re pretty sick of our own cooking. But going to court in person? Who needs it? State criminal courts were pestholes long before Covid.  And those were the public areas where they took school groups. As for backstage, affectionately known as “the pens,” they haven’t been cleaned since Judge Crater disappeared in 1930, carried off by giant rats.  Not to worry, they say, the arraignment booths have been fitted with plexiglass partitions. Yes, a convenient alternative to the floor for spitting on.  

Why should we ever go back to in-person appearances? protests Manhattan Judge Daniel Conviser?

“Virtual appearances promote efficiency and save money, by eliminating the need for lawyers and defendants to travel to courthouses and for incarcerated defendants to be transported from jails” he says. “Remote appearances promote public health, by reducing the extent to which persons must travel to and convene in courthouses. The COVID-19 emergency may be over. But the presence and threat of future COVID-19 variants and the number of people who remain unvaccinated continue to counsel caution.

“Indeed, there will likely continue to be instances where a defendant’s liberty interests may be protected by a plea, sentence or hearing which can be conducted sooner through a remote appearance. . . . In our adversary system, where the judge, the prosecutor and the defendant all agree that a remote proceeding is preferable, it is difficult to understand why it should not be allowed.” 

But what about the Confrontation Clause, you ask? The inalienable right “to meet face to face and frowning brow to brow,” as Shakespeare put it, channeled through Justice Scalia. “Look me in the eye and say that!” Coy v. Iowa (1988).

But if we’ve learned anything from the pandemic it’s that you can perfectly well look each other in the eye via Zoom without having to breathe in each other’s faces.  We refuse ever again to attend a meeting that doesn’t have a mute button. 

So it’s even more “difficult to understand” why the appellate courts are reverting to in-person oral argument. Why should we put on our shoes and get on the subway just to be frowned at brow to brow by judges who read only bench memos by clerks who read only the People’s brief? It’s a regressive ritual as meaningful as a rigged quiz show. Our liberty interests are best served by phoning it in. 



About Appellate Squawk

A satirical blog for criminal defense lawyers and their friends who won't give up without a squawk.
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