As of the writing of this article, we are currently a year and a half into the COVID-19 crisis. Courts across the nation have been conducting status calls, hearings and trials via Zoom or other software that allows for remote communication.
I, personally, have found Zoom to be breakthrough for litigation. I can represent people in multiple counties and states…all within the space of the same hour. I no longer have to bill for travel or even the time it took to take two different elevators to run between courtrooms at the Daley Center.
Per the Illinois Supreme Court, family law cases should be available via Zoom.
“Case participants shall be permitted to attend court via the circuit court’s available remote appearance technology without any advance approval” Ill. S. Ct. R. 45(c)
There are bright-line exceptions to the not-exactly-explicit right to appear via Zoom.
Zoom may not be required for “the following proceeding types, which shall require the approval of the judge presiding over the matter:
(i) Evidentiary hearings, except for ex parte evidentiary hearings (such as emergency
orders of protection hearings);
(ii) Settlement conferences;
(iii) Bench trials;
(iv) Jury trials” Ill. S. Ct. R. 45(c)
Illinois courts can and will do what they want. In person? Zoom? It’s up to the Illinois court in question.
“[T]he trial court possesses the inherent authority to control its own docket and the course of litigation” J.S.A. v. M.H., 863 N.E.2d 236, 244-45 (Ill. 2007)
“A court has broad discretion to determine if video participation, including giving video testimony, and nontestimonial telephone participation are appropriate for a particular case. A court should take into consideration and balance any due process concerns, the ability to question witnesses, hardships that would prevent the case participant from appearing in person, the type of case, any prejudice to the parties if testimony occurred by video conference, and any other issues of fairness. A court must balance these and other relevant factors in an individual case.” Ill. S. Ct. R. 241, Committee Comments (rev. Feb. 2, 2023);
But, are Zoom hearings and trials even legal? Or is Zoom just an emergency measure that will be struck down like eviction moratoriums and vaccine mandates?
Zoom hearings and trials are legal and constitutional. I hope this article will help you demand that your hearing or trial occur via Zoom in order to save you money, provide due process and encourage a greater access to justice for everyone.
Zoom Hearings For Divorce Are Constitutional
The possible constitutional issue with Zoom is that a Zoom hearing may not allow you to properly “confront your accuser” as the U.S. Constitution guarantees.
“In all criminal prosecutions, the accused shall…be confronted with the witnesses against him” U.S. Const., amend. VI
Confrontation means the right to cross-examine people who are making statements that will be considered as evidence in your case. “[T]he Confrontation Clause reflects a preference for face-to-face confrontation at trial, and that a primary interest secured by [the provision] is the right of cross-examination.” Ohio v. Roberts, 448 US 56 – Supreme Court 1980
The Illinois constitution also enshrines this right. The Illinois constitution used to require that the confrontation occur “face to face.”
“The confrontation clause of the Illinois Constitution was amended on November 8, 1994, to remove the “face-to-face” language of article I, section 8, and conform this state’s confrontation clause to that of the sixth amendment of the United States Constitution, so that it now provides, “In criminal prosecutions, the accused shall have the right * * * to be confronted with the witnesses against him or her * * *” (Ill. Const. 1970, art. I, § 8 (amended November 8, 1994)). People v. Lofton, 194 Ill. 2d 40, 53 (Ill. 2000)
A confrontation doesn’t really have to be face to face to be constitutional.
“[A]lthough the confrontation clause generally requires face-to-face confrontation, the requirement is not absolute” People v. Lofton, 194 Ill. 2d 40, 59 (Ill. 2000)
The whole concept of the right to confront your accuser…assumes an accuser. Which assumes a crime. The requirement of confrontation becomes a lot looser if the case is a civil case like divorce instead of a criminal case.
“Although confrontation rights may be an aspect of due process in purely civil proceedings, the confrontation clause need not be applied strictly in such proceedings.” In re K.L.M, 146 Ill. App. 3d 489, 495 (Ill. App. Ct. 1986)
If testimony is reliable and can be questioned in some manner, that testimony is constitutional.
“[T]he Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation.” Maryland v. Craig, 497 U.S. 836, 857 (1990)
But, is questioning a witness via Zoom enough? Pre-COVID, courts decided that telephone witnesses did not satisfy the constitutions’ confrontation clause’s requirements.
One Illinois appeals court determined that a“[parties’]’ due process rights were denied by the trial court’s ruling which allowed [a witness] to testify by telephone over objection” In re C.M, 319 Ill. App. 3d 344, 356 (Ill. App. Ct. 2001)
So, if a witness testifying via telephone is not sufficient under Illinois law, why is a witness via Zoom constitutional? Because Zoom meets the requirements for due process.
Due Process And Zoom Hearings In Illinois
Due process is the fundamental principal of Anglo-American law. We follow the rules in this country while giving everyone an opportunity to heard (I am a naturalized American citizen who is very grateful for this country and its values).
“The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)(Quotations Ommited)
Due process is a fuzzy concept…and that’s okay.
“[D]ue process is flexible and calls for such procedural protections as the particular situation demands,” Morrissey v. Brewer, 408 U.S. 471, 481.
There are plenty of worthy substitutes for face to face cross-examination under the U.S. and Illinois constitutions.
“[T]he presence of these other elements of confrontation — oath, cross-examination, and observation of the witness’ demeanor — adequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony.” Maryland v. Craig, 497 U.S. 836, 851 (1990)
There are rules to determine what satisfies due process for evidence…and here’s where it gets a little tricky. But, it helps explain why Zoom is a perfectly acceptable substitute for in-person cross-examination.
“In determining whether the procedure provided was constitutionally sufficient, courts consider and balance the following factors: (1) the private interest affected, (2) the risk of erroneous deprivation of the interest by using the procedure and the probable value, if any, of additional or substitute safeguards, and (3) the governmental interests involved.” In re R.D 2021 IL App (1st) 201411
If there’s an important fundamental constitutional interest like a marriage with kids, the courts have to be careful.
“The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000)
Just recently, an Illinois appeals court enshrined Zoom as the gold standard for “conduct[ing] business while keeping people safe”
“We also find that the use of Zoom was necessary to further important state interests. Significantly, Zoom was used to conduct these hearings only because Illinois was in the grips of the COVID-19 pandemic and, at the time, a vaccine was not available. Given the extraordinary challenges presented by the pandemic, Zoom hearings enabled courts to conduct business while keeping people safe from a deadly virus that spreads easily through in-person interactions. …The end of the pandemic remains uncertain, and despite the existence of vaccines, new variants threaten to dismantle plans for reopening the courts for in-person hearings. Keeping children in limbo, particularly when they have already spent years in the system, would not further the state’s interest in their welfare.” In re R.D 2021 IL App (1st) 201411
The Illinois appeals court further elaborated that, “the use of Zoom [gives parties] a fair opportunity to assess a witness’s credibility through cross-examination, thus satisfying the confrontation clause. Counsel [can] conduct[] a contemporaneous cross-examination and, through the monitor, counsel could observe the witness’s demeanor and body language.” In re R.D 2021 IL App (1st) 201411
Zoom is legal in Illinois under current case law…and I hope Zoom stays legal forever in Illinois.
For a Cook County Domestic Relations’ judge’s perspective on Zoom hearings, please read this article.
If you are getting ready for a Zoom hearing, contact my Chicago, Illinois family law firm to learn more about how to effectively communicate your Illinois divorce case via Zoom.
