Navigating

Virtual Proceedings
in Juvenile Court
A Guide for Judges
People do not live on two-dimensional flat screens.
When we see families and young persons solely on a screen, we risk losing
sight of essential aspects of their humanity, of their personhood. When we
hear cases virtually, we lose a thousand and one nonverbal cues that help
us understand who a person is and give us a glimpse of their circumstances.
This is one of the reasons I strive to bring young people and the caretakers in
their lives into the courthouse for substantive or dispositive hearings. If I am
to make a decision that has the potential to alter the trajectory of a persons’
life, I should do so looking that person in the eye while confronted by their
full humanity.

Kenneth J. King

Associate Justice
Middlesex County, Massachusetts Juvenile Court

© The Gault Center April 2023

defendyouthrights.org
@gaultcenter

ncjfcj.org
@ncjfcj

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Since the onset of the COVID-19 pandemic, juvenile
courts across the country have adopted video and
teleconferencing to conduct virtual hearings. Although
initially embraced as an emergency measure, virtual
proceedings continue to be utilized even as jurisdictions
increasingly lift restrictions on in-person hearings. This
new “hybrid” model is being heralded as a groundbreaking
way to make court more accessible and, more importantly,
more convenient. However, as gatekeepers to court
proceedings, judges must ensure that the constitutional
rights of youth in their courtrooms are prioritized over
efficiency or cost-saving concerns. Before proceeding with
virtual hearings, judges should be mindful of access to
technology, constitutional implications, and the limitations
of remote proceedings specific to youth.

Access to Technology
Access to appropriate technology remains an impediment
to virtual proceedings. When setting hearings, judges
should not presume that youth have access to all of the When setting virtual hearings, courts must also be aware
technology necessary to engage in a virtual hearing. that while some youth may have access to technology,
The digital divide1 remains stark. A recent report from they do not necessarily have the skills and familiarity to
the Pew Research Center found that 41 percent of adults use specific platforms. Not all youth are able to navigate
with household incomes below $30,000 do not own the intricacies of virtual platforms they do not utilize daily.
a desktop or laptop computer, 43 percent do not have Moreover, these platforms also create specific challenges
broadband services at home, and 24 percent do not own a for limited and non-English speaking youth and caregivers.4
smartphone.2 Additionally, Black and Latino/a adults, those Individuals with disabilities face additional obstacles
with disabilities, and those from rural communities are accessing the necessary technology for hearings.5
also less likely to have access to multiple forms of digital
technology.3 Of course, some of these adults are the parents Courts must ensure that all parties, especially those from
and guardians of young people who, by virtue of being marginalized groups, have an opportunity to meaningfully
minors, also do not have access to technology. Tackling this engage in proceedings.6 This meaningful engagement does
digital divide is necessary to protect the fairness of virtual not only exist in what courts call “evidentiary hearings,”
court proceedings. but also in “non-evidentiary,” bond and detention, and
status hearings. Can youth really meaningfully engage,
follow along, communicate, and be protected the way the
Constitution and law require in virtual spaces?

1 The “digital divide” references the gap between those who do and those who do not have access to broadband internet and/or the technology to use it.
2 Emily A. Vogels, Digital Divide Persist Even as Lower-Income Americans Make Gains in Tech Adoption, Pew Research Center, June 22, 2021.
3 Sara Atske & Andrew Perrin, Home Broadband Adoption, Computer Ownership Vary by Race, Ethnicity in the U.S., Pew Research Center, July 16, 2021;
Andrew Perrin and Sara Atske, Americans with Disabilities Less Likely to Own Computer, Smartphone, Pew Research Center, September 10, 2021; Emily
A. Vogels, Some Digital Divides Between Rural, Urban, Suburban America Persist, Pew Research Center, August 19, 2021.
4 Brennan Center for Justice, The Impact of Video Proceedings on Fairness and Access to Justice in Court (2020) (noting that “dense court language can be
difficult to communicate via translation to non-English speakers”).
5 Ctr. For Court Innovation & Nat’l Legal Aid & Def. Assoc., Remote Justice: Communication in the Virtual Courtroom (2020).
6 Brennan Center for Justice, Principles for Continued Use of Remote Court Proceedings (2020).

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Constitutional Protections Virtual proceedings also present significant confrontation
issues12 when witnesses testify remotely. Video testimony
While conducting proceedings remotely may eliminate can skew perceptions through camera placement, the
some barriers to participation,7 the practice raises absence of nonverbal cues, and lack of eye contact. 13 In-
significant constitutional concerns. Embedded in the right person confrontation is necessary to protect the integrity
to counsel for youth is the right to effective assistance of of the factfinding process and is designed to enhance
counsel.8 Youth are entitled to “the guiding hand of counsel assessments of credibility.14 Unless courts can ensure that
at every step in the proceedings against him.”9 Due process virtual testimony is reliable, necessary, and does not run
requires that youth have a meaningful opportunity to afoul of the Confrontation Clause, virtual proceedings
communicate with their attorneys.10 Widespread reports should not be used for hearings involving witness
indicate that attorneys do not have reliable means of testimony.
communicating confidentially with their clients during
virtual proceedings, which erodes the attorney-client Youth also have a right to be present at all critical stages
relationship and deprives youth of access to counsel.11 of a proceeding.15 The Supreme Court has held that “due
Youth have a right to participate and assist in their defense, process clearly requires that a defendant be allowed to be
and they must be able to communicate confidentially with present ‘to the extent that a fair and just hearing would
their attorneys before, during, and after hearings. be thwarted by his absence.’”16 Therefore, any substantive
hearing, including but not limited to probable cause
hearings, bail hearings,17 evidentiary hearings, and trials,
carries a right to presence. Ultimately, the constitutional
concerns created by virtual proceedings require courts
to safeguard due process and fundamental fairness. Any
“ If I am to make a decision that has abridgement of constitutional protections requires in-
person hearings.
the potential to alter the trajectory
of a persons’ life, I should do so
looking that person in the eye while
confronted by their full humanity.”
Kenneth J. King
Associate Justice
Middlesex County, Massachusetts Juvenile Court

7  Legal Aid Interagency Roundtable, Access to Justice in the Age of Covid-19 (2021) (For example, the shift to remote hearings often eliminated barriers like
lack of transportation, lack of childcare, and the inability to take time off of work, which reduced default or non-appearance rates.).
8 In re Gault, 387 U.S. 1, 34 (1967); Kent v. United States, 383 U.S. 541 (1966).
9 Id.
10 Nat’l Juv. Def. Ctr., Due Process in the Time of Covid: Defenders as First Responders in a Juvenile Court System Struggling with the COVID-19 Pandemic
(2020) [hereafter Due Process in the Time of Covid].
11 Due Process in the Time of Covid, supra note 10; Stanford Prison Experiment: a film by Kyle Patrick Alvarez (VOD 2015).
12 U.S. Const. amend. VI.
13 Anne Bowen Poulin, Criminal Justice and Videoconferencing Technology: The Remote Defendant, 78 TUL. L. REV. 1089, 1108 (2004).
14 Coy v. Iowa, 487 U.S. 1012 (1988); Maryland v. Craig, 497 U.S. 836, 846 (1990).
Illinois v. Allen, 397 U.S. 337 (1970) (“One of the most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be present in
15 
the courtroom at every stage of his trial.”).
16 Kentucky v. Stincer, 482 U.S. 730, 745 (1987) (internal citations omitted).
17 Edie Fortuna Cimino et. al., Charm City Televised & Dehumanized: How CCTV Bail Reviews Violate Due Process, 45 U. Balt. L.F. 56 (2014).
(Constitutional issues with video bail conferences).

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Limitations of Virtual Proceedings Judicial officers may assume that because young people
are generally active on social media or routinely use video
While issues with access to technology and constitutional game consoles for recreational purposes that they are also
concerns permeate both adult and juvenile courts, there adept at navigating video conferencing platforms and are
are additional limitations to virtual proceedings involving comfortable with the medium. This is a faulty deduction.
youth. Youth are not simply “miniature adults,”18 and they Virtual court hearings are not interactive in the same way
face additional hurdles in engaging with virtual court as social media and video game consoles. With the latter,
proceedings. Defense attorneys across the country have young people are constantly engaged and continuously
noted the negative effects virtual proceedings have had on stimulated by activity and can move quickly from one item
their clients’ ability to understand the legal process.19 This to the next. In video hearings, young people are asked to
compounds the already existing challenge many youth face sit quietly and pay attention without the benefit of actual
because of developmental differences in their capacity for human contact, sometimes for long periods. The two
understanding and behavior-control compared to adults.20 activities – recreational technological use and attending a
Youth with learning disabilities or speech and language court hearing – are not comparable.
impairments are at even greater risk of not understanding
what happens in the courtroom.21 As a result, courts Given these limitations, courts should prioritize in-person
should consider adolescent development and each young hearings as a matter of practice. However, should courts
person’s unique ability to comprehend the substance of decide that a virtual hearing may be warranted and that a
proceedings during virtual hearings. young person would like to proceed virtually, the following
checklist is offered to assist courts in conducting virtual
Previous studies of virtual hearings have shown that remote proceedings.
proceedings can lead to disengagement with the judicial
process and, at times, result in harsher outcomes in cases.22
Given the overrepresentation of Black, Latino/a, Native/
Indigenous, and other youth of color in juvenile courts,23
virtual proceedings can also exacerbate racial disparities.
One assessment found that children were perceived as
less accurate and believable when appearing over video.24
In addition, communication over video can cause the
unintentional dehumanization of participants.25 Absent
in-person interactions in a court room, the gravity of
proceedings can be diminished.26

18 J.D.B. v. North Carolina, 564 U.S. 261, 274 (2011).

19 Due Process in the Time of Covid, supra note 10.
20 See generally, Laurence Steinberg et al., Are Adolescents Less Mature than Adults? Minors’ Access to Abortion, the Juvenile Death Penalty, and the
Alleged APA “Flip-Flop,” 64 AM. PSYCHOLOGIST 583 (2009); Thomas Grisso et al., Juveniles’ Competence to Stand Trial: A Comparison of Adoles-
cents’ and Adults’ Capacities as Trial Defendants, 27 Law & Hum. Behav. 333 (2003), (discussing youth competency and decision-making); see also
Jodi L. Viljoen et al., Adjudicative Competence and Comprehension of Miranda Rights in Adolescent Defendants: A Comparison of Legal Standards, 25
Behav. Scis. & L. 1 (2007).
21 See, Pamela C. Snow & Martine B. Powell, Oral Language Competence, Social Skills and High-Risk Boys: What are Juvenile Offenders Trying to Tell Us?,
22 Children & Society 16 (2008).
22 The Impact of Video Proceedings on Fairness and Access to Justice in Court supra note 4; Shari Seidman Diamond et al., Efficiency and Cost: The Impact
of Videoconferenced Hearings on Bail Decisions 100 J. of Crim. L. & Criminology, 869, 900 (2010).
23 See generally, Barbara Robles-Ramamurthy & Clarence Watson, Examining Racial Disparities in Juvenile Justice, 47 J Am. Acad. Psychiatry L. 1 (2019).
24 The Impact of Video Proceedings on Fairness and Access to Justice in Court, supra note 4.
25 Min Kyung Lee, et al., Making Decisions From a Distance: The Impact of Technological Mediation on Riskiness and Dehumanization (2015);
Due Process In The Time Of Covid, supra note 10; Stanford Prison Experiment: a film by Kyle Patrick Alvarez, supra note 11.
26 Shari Seidman Diamond et al., supra note 22, at 879.

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 Checklist for Conducting Virtual Hearings

Evaluate Legality & Necessity of Virtual Proceeding

n Assess constitutional implications of specific proceedings with respect to right to presence, confrontation, and
effective assistance of counsel.
n Consider case-specific factors, including but not limited to:
• Stage of Proceedings: arraignment, probable cause hearing, detention hearing, status hearing, evidentiary
hearing, trial, or disposition.
• Placement: whether a youth is detained, in an out-of-home placement, or with parents/caregivers in the
community.
• Youth’s Ability to Engage: assess a youth’s age; intellectual, emotional, or learning disabilities; and any
other information known to the court that indicates a youth would struggle to comprehend or meaningfully
engage with a virtual hearing.
• Willingness of Parties: ascertain each party’s willingness to proceed virtually prior to setting any hearing.
Ensure attorneys have sufficient time to confer with clients before stating a position.

Create a Clear Record

n Ensure the consent of each party to proceed virtually is stated on the record.
n Ascertain whether a youth’s consent is knowing and voluntary. Specifically ask whether a youth has had the
opportunity to consult with their attorney about the decision to proceed virtually.
n Have all parties identify themselves by name and role in the proceeding (e.g., prosecution, probation officer,
youth defense counsel, service provider).
n Articulate the legal basis for proceeding virtually, citing to an executive order, local rule, or applicable
authority.
n State if a proceeding will be recorded through audio or video and/or transcribed by a court reporter.
Safeguard Confidentiality
n Confirm that proceedings are not streamed or available to the public. Depending on the platform, courts may
be able to create meetings that require a specific ID and password to join.
n Remind all participants that proceedings may not be recorded in any form.
n Create a waiting room for participants to prevent others from joining a hearing in-progress. This allows the host
to approve each participant.
n Disable platform chat function or confirm all participants are aware that anything written on the chat function
will become part of the record.
n Ensure attorneys have a confidential means of communication with clients that is not recorded. If a platform
allows for “breakout rooms,” these can be an effective way to provide for confidential conversations.
n Permit breaks throughout the hearing to allow for confidential communications.
n Confirm youth have a safe, private space to participate in the hearing.
Facilitate Use of Technology
n Provide all participants with a guide on how to join proceedings and ensure this guide is available in
languages other than English.
n Ensure youth have access to appropriate technology for hearing.
n Confirm appropriate accommodations are in place for persons with disabilities, as well as non-English
speakers and those with limited English proficiency.
n Inform participants of how the court will proceed if technical difficulties emerge and how participants should
proceed if their connection drops during a hearing.
n Allow youth defenders to co-host the virtual meeting platform during the hearing. This capability allows
defenders to adjust the sound and/or stop the video if the youth is having a difficult time or needs a break.
n Do not penalize any party for technological difficulties.