On March 19, 2010, the Seventh Circuit Court of Appeals held that a federal district court violated Rule 32.l(b)(2) of the Federal Rules of Criminal Procedure when the judge used videoconferencing technology to appear at a supervised release revocation hearing.
Christopher R. Thompson was convicted in federal court and released on supervised release. He was later arrested for DUI, operating an uninsured motor vehicle, driving with a suspended license, speeding and improper lane usage. After he failed to notify his probation officer of the arrest within 72 hours, the government sought to revoke his supervised release.
The district court held both an initial hearing and a revocation hearing at which the prosecutor and appointed federal public defender were present in the Rockford, Illinois courtroom but the judge appeared via videoconferencing from a courtroom in Key West, Florida. The judge revoked Thompson’s supervised release and, despite the prosecutor’s recommendation of eight months’ incarceration, imposed a 12-month prison sentence and one year of supervised release. Thompson appealed.
The government admitted error, so the Seventh Circuit appointed an amicus attorney to defend the district court’s procedure. The Court of Appeals held that Rule 32.l(b)(2) states a defendant is “entitled to” an “opportunity to appear” to “present evidence and question any adverse witnesses,” and to “make a statement and present any information in mitigation.”
“Appear” in this context means “to come formally before an authoritative body.” This includes the right to be physically present in the same room with the authority, in this case the federal judge. A face-to-face meeting between the defendant and the judge allows the judge to experience “those impressions gleaned through ... personal confrontation.” The ability to assess the moral fiber or credibility of another person is lessened when videoconferencing is used, the Seventh Circuit held.
Videoconferencing also diminishes the impact of the rights to allocution, cross-examination and presentation of evidence, especially the testimony of the defendant. Therefore, a judge appearing via videoconferencing is inadequate pursuant to Rule 32.
This is in line with the Sixth Circuit’s prior ruling that a defendant’s appearance at a supervised release revocation hearing via videoconferencing was inadequate to fulfill the requirements of Rule 32. See: Terrell v. United States, 564 F.3d 442 (6th Cir. 2009).
Although such an error is subject to harmless error analysis, the amicus counsel did not argue harmless error. That would have been difficult anyway, as “there is no way to know what the judge would have done had he been present in Rockford and face-to-face with Thompson.” Therefore, the revocation of Thompson’s supervised release was vacated and the case remanded to the district court. See: United States v. Thompson, 599 F.3d 595 (7th Cir. 2010).
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Related legal case
United States v. Thompson
|599 F.3d 595 (7th Cir. 2010)
|Court of Appeals