REMOTE HEARINGS BY
ELECTRONIC MEANS A USEFUL TOOL
MIKE HAGBURG
Attorney at Law
Since mid-March, the Supreme Court has
enacted eight administrative orders aimed
at providing guidelines for court operations
during the COVID-19 pandemic. Five of
these orders have language authorizing or
recommending the use of reliable electronic
means for court proceedings.
Conducting proceedings using reliable
electronic means is endorsed in Order 27
on evictions, Order 29 on guardianships,
Order 30 on permanency hearings, and
Order 31 on traffic hearings. Order 28
on interim order proceedings specifically
allows emergency and merits hearings to be
conducted, and evidence to be presented,
using reliable electronic means.
These orders all reference Administrative
Rule 52, which is the rule governing “the use
of contemporaneous audio or audiovisual
transmission by reliable electronic means
in North Dakota's district and municipal
courts.”
Rule 52 generally allows a court to conduct
proceedings by reliable electronic means
on its own motion or a party's motion.
Electronic means hearings may be requested
at any time, not just during a judicial
emergency. Parties seeking to hold an
electronic means proceeding must provide
notice to the other parties and obtain
approval from the court.
Under Rule 52, the court, in a civil action,
is allowed to conduct a hearing, conference,
or other proceeding, or take testimony, by
reliable electronic means. In criminal matters,
the use of electronic means is more limited.
For example, a defendant in a criminal
case may not plead guilty nor be sentenced
by reliable electronic means unless the
parties consent. When an electronic means
proceeding is held, the defendant’s attorney
must be present at the site where the
defendant is located unless the attorney's
participation from another location is
approved by the court with the defendant’s
consent.
Perhaps the biggest barrier under Rule 52 to
the wider use of electronic means in criminal
proceedings is the requirement a witness may
not testify by reliable electronic means unless
the defendant knowingly and voluntarily
waives the right to have the witness testify in
person.
This restriction is consistent with United
States Supreme Court precedent. In
Maryland v. Craig, 497 U.S. 836 (1990),
the Court held that the use of alternatives
to in-person witness testimony (such as
testimony by reliable electronic means)
may be allowed “only where . . . necessary
to further an important public policy and
only where the reliability of the testimony is
otherwise assured.” Courts nationwide have
generally not allowed remote testimony over
a defendant’s objection in a criminal case
except when vulnerable child witnesses are
involved.
Rule 52 also includes detailed guidelines for
holding proceedings by reliable electronic
means in mental health matters and
revocation of probation proceedings for outof-state
offenders.
The rule traces its roots to the early 2000s,
when the Supreme Court authorized
interactive television pilot projects in the
East Central, South Central, and Southeast
Judicial Districts and developed orders
setting out the procedures to be followed
under these projects. Rule 52 was originally
conceived of as a uniform rule for the use
of interactive television in the courtroom
and brought together the most successful
features of the pilot project orders. It was first
adopted in 2005.
In 2015, Rule 52 was amended to apply
to all proceedings conducted using
contemporaneous audio or audiovisual
transmission. The amendment was
specifically intended to bring proceedings
conducted by telephone under the rule, but
the expansive language was included so that
other reliable electronic means could be used.
During the pandemic, court proceedings
have been conducted using computer-based
conferencing applications in addition to
interactive television and the telephone.
26 THE GAVEL