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Is it a constitutional violation for a judge to mute defendants during video sentencing?

Nicole Black//July 11, 2022

Is it a constitutional violation for a judge to mute defendants during video sentencing?

Nicole Black//July 11, 2022

Zoom meeting

The past few years have drastically impacted the way that the world operates. The shift to remote work was a sudden and drastic change, but whether it will be a permanent one remains to be seen.

The overnight transition to virtual interactions was particularly impactful on our court system. Because a complete standstill was not an option, routine appearances and extended trials alike shifted to online videoconferencing platforms.

That move to online proceedings was a bumpy — and interesting — journey. Since the start of the pandemic, I’ve written a lot about remote work and virtual court appearances, ranging from the ethical issues presented to the outrageous gaffes that occurred during online legal proceedings. Virtual court has provided ample fodder for my writings and I’m happy to say that it’s the gift that keeps on giving.

Case in point: U.S. v. Braman, No. 21-1354. In this case, which was handed down by the U.S. Court of Appeals for the Eighth Circuit in May, the court considered whether the district court committed plain error by muting the defendant twice during his virtual sentencing hearing, once before he was sentenced and once afterward. The defendant asserted that by muting him before his sentence was imposed, the trial court violated his right to counsel and that the second muting negatively impacted his right to meaningful allocution.

In reaching its decision, the court first addressed the rationale behind the trial judge’s actions. The court explained that the behavior of a defendant can affect his rights at trial, “The right to be physically present at trial can be lost if the defendant ‘insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.’”

Next, the court noted that, contrary to the defendant’s claim, his Sixth Amendment rights were not implicated when the trial court muted him during his virtual sentencing since muting is not akin to physical removal, “What this argument ignores is context — we are reviewing a sentencing proceeding during which Braman was not physically removed.”

According to the court, it was the defendant’s Fifth Amendment due process rights that were potentially affected, not his Sixth Amendment right to confront witnesses. The court explained that “(a)s no witness was testifying and Braman did not object factually to the PSR, the Confrontation Clause was simply not at issue … ‘(T)he right to be present at proceedings that lack testimony (usually true of sentencings) comes from the Fifth Amendment’s Due Process Clause.’”

Having determined that Due Process Clause analysis applied, the court turned to the assessment of whether muting the defendant prior to his sentencing violated his Fifth Amendment right to due process. The court concluded that was not the case, “The matters discussed while he was muted were the § 3553(a) sentencing factors, the conditions of his supervised release, and his right to appeal. The muting did not adversely affect counsel’s ability to urge a favorable sentence.”

Finally, the court analyzed the defendant’s claim regarding the second muting. The court determined that the post-sentencing muting did not impact his right to a meaningful allocution since the trial court afforded Braman two opportunities to speak. Even though the second allocution occurred after he was sentenced, it nevertheless provided an opportunity to be heard since it “retain[ed] the potential to affect the sentence.”

Once again, the pandemic’s effects on the administration of justice have provided a unique legal issue that otherwise might not have arisen. I have no doubt that there will be plenty more to come even as we return to a semblance of normal. While not everyone would agree, I, for one, think that many of the temporary effects of the pandemic, including virtual court proceedings for more routine appearances, will become permanent. Of course, only time will tell if I’m correct.

Nicole Black is a Rochester attorney, author, journalist and the legal technology evangelist at MyCase legal practice management software. She can be contacted at [email protected].

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