In re Remote Commc'n Tech.
| Decision Date | 27 August 2021 |
| Docket Number | Appellate 2020-000447,27 August 2021 |
| Court | United States State Supreme Court of South Carolina |
| Parties | Use of Remote Communication Technology by the Trial Courts |
(a) Purpose. Pursuant to Rule 612 of the South Carolina Appellate Court Rules (SCACR), this Court may provide for the use of remote communication technology by the courts of this State to conduct proceedings, including, but not limited to trials, hearings, guilty pleas, discovery, grand jury proceedings, and mediation or arbitration under the South Carolina Court-Annexed Alternative Dispute Resolution Rules. The purpose of this order is to provide guidance on the use of remote communication technology by the trial courts including appellate proceedings before the circuit court.
Since the start of the coronavirus emergency, remote communication technology has been used extensively by the trial courts, and this use has allowed court proceedings to safely occur despite the pandemic. In addition, this recent use of remote communication technology has shown it can, if used appropriately, conserve judicial resources, reduce travel and wait times for court participants, and reduce courtroom security and safety concerns.
While this order addresses some specific types of matters, it is impossible for it to address every type of matter that can possibly come before a trial court. For matters not specifically addressed in this order, judges should consider the general guidance along with how this order deals with similar matters to determine if a particular use of remote communication technology is appropriate.
When this order indicates that a proceeding may be conducted in whole or part using remote communication technology, it means that the use of remote communication technology can range from allowing a single person, such as a witness or other participant in the proceedings, to participate by remote means, to a proceeding in which all of the participants (judge, counsel, parties, witnesses, etc.) are participating by remote means, or anything in between.
This Court recognizes that various trials, pleas or hearings may have already been scheduled to be conducted using remote communication technology under the guidance contained in the order of June 15, 2021.[1]If so, the use of remote communication technology for that trial, plea or hearing may continue to be conducted under the guidance contained in the June 15, 2021 order, notwithstanding any new limitations in this order.
(b) Definitions. For the purpose of this order:
(1) Judge: a judge of the circuit court, family court probate court, magistrate court and municipal court including masters-in-equity and special referees.
(2) Remote Communication Technology (RCT): technology such as video conferencing and teleconferencing which allows audio and/or video to be shared at differing locations in real time. This can range from a telephone call or conference call which provides only audio to sophisticated software products like WebEx, Zoom or Microsoft Teams which allows both audio and video to be shared. When this order refers to using RCT, Enhanced Remote Communication Technology (ERCT) may be used instead.
(3) Enhanced Remote Communication Technology (ERCT): a form of RCT such as WebEx, Zoom and Microsoft Teams which allows audio and video to be shared at differing locations in real time. When this order indicates ERCT is to be used, that form of RCT must be used.
(4) Trial Court: the circuit court (including masters-in-equity court), family court, probate court magistrate court and municipal court.
(c) General Guidance Regarding Use of RCT.
(1) Discretion of Judges. In various provisions of this order, the decision to allow RCT to be used rests in the discretion of the judge. Even when the language in this order indicates RCT may be used, the facts and circumstances in a particular case or matter may indicate that the use of this technology is inappropriate. To some extent, the exercise of this discretion will necessarily be influenced by the technical skill of the judge, attorneys, other case participants and any supporting staff who will be using this technology. Finally, for some proceedings, this order may restrict this discretion. For example, this order may indicate that certain proceedings must be conducted using ERCT. Another example is that for some types of proceedings the consent of the parties or a sufficient justification must exist before RCT of any type may be used.
(2) Constitutional Rights of Parties. In the absence of a waiver, judges should not allow RCT to be used in a manner which would violate the rights of a party under the either the State or Federal Constitution.
(3) Victims' Rights. Victims' rights under Article I, Section 24 of the South Carolina Constitution and Article 15 of Chapter 3 of Title 16 of the South Carolina Code of Laws must be honored when RCT is used to conduct court proceedings. Nothing in this order shall be construed as preventing a judge, in the exercise of discretion, from allowing a victim to hear and/or view a proceeding or trial by RCT.
(4) Public Access. When a hearing, trial or other court proceeding is of a nature that it would normally be open to the public, the judge should take reasonable measures to provide public access to the portion of the proceeding that is being conducted using RCT. When a portion of a proceeding is being conducted in a courtroom open to the public, this requirement is satisfied if the testimony presented using RCT can be heard by any observers in the courtroom. In other situations, this may be accomplished by other methods such as live streaming the proceeding over the internet, broadcasting the proceeding at a publicly accessible room at a courthouse or other facility, or utilizing a process that permits members of the public to view and/or listen to the proceedings.[2]
(5) Use of ERCT. Even when the use of ERCT, an enhanced form of RCT, is not required by this order, judges should consider using ERCT when the ability to both see and hear the persons participating remotely will assist in reaching a resolution of the matter under consideration.
(6) Consent of the Parties. Except as restricted by the guidance in this order, including the limits on the use of RCT in jury trials under section (d) (11) below, a judge may use RCT to the extent consented to by the parties. Even when the parties have consented, the judge may find it is inappropriate to use RCT based on the specific facts and circumstance of the case, including, but not limited to, the number of parties in the case, the number of witnesses expected to testify or the complexity of the legal issues involved.
(7) COVID-19 and Other Communicable Diseases; Disasters. While the number of COVID-19 infections has decreased significantly from its peak, the virus continues to pose a risk to those participating in court proceedings. Further, in the future, other communicable diseases may pose similar risks. Since the use of RCT can reduce the risk of infection to participants, judges should consider this factor in determining if the use of RCT is appropriate. In the event of a natural or man-made disaster, such as a hurricane, earthquake, flood, war or other armed conflict, or riot, the effects of the disaster may require a greater use of RCT. Finally, nothing in this order should be construed as preventing the Chief Justice from issuing guidance requiring the use of RCT by the trial courts in response to a public health emergency or other disaster.
(8) Attorney-Client Communications. If the use of RCT results in the attorney and the client being at different locations, a means must be available for the attorney and client to communicate confidentially while RCT is being used. This could be done outside of the RCT software using telephonic or text communication, and judges should allow persons to possess cell phones or other electronic devices in the courtroom when necessary for this purpose. Further, this private communication may be possible using the features of the RCT software, such as virtual breakout rooms. In any event, it is the responsibility of the attorney to ensure that an adequate method of communication is available.
(9) Recording Remote Proceedings. Other than the judge or court staff assisting the judge, no person shall record any court proceedings which are conducted using RCT except when the recording is authorized by the judge under Rule 605, SCACR.
(10) Conducting Remote Proceedings to Facilitate Transcript Preparation in Courts of Record. Where a court reporter or court monitor is unavailable, the judge shall conduct the RCT proceedings in a manner that will allow a court reporter to create a transcript at a later date. This would include, but is not limited to, making sure the names and spelling of all of the persons speaking or testifying are placed on the record; ensuring exhibits or other documents referred to are clearly identified and properly marked; controlling the proceeding so that multiple persons do not speak at the same time; and noting on the record the start times and the time of any recess or adjournment.
(11) Remote Administration of Oaths. Where this order authorizes a hearing, trial or other matter to be conducted by RCT, any oath necessary during that hearing, trial or other matter may be administered using RCT. While it is preferable that the person administering the oath have both audio and visual communication with the person taking the oath, the oath may be administered if only audio communication is available, provided the person administering the oath can reasonably verify the identity of the person taking the oath. Notaries who are authorized to administer oaths may administer oaths utilizing...
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