Access to Oral Argument for Clients in Custody

February 11, 2022

We write to encourage you to consider requesting remote viewing access to oral argument for your clients incarcerated in jails and prisons or civilly committed to state hospitals or local psychiatric facilities.  Now that appellate oral arguments are routinely held remotely, our clients – who have the most at stake in these arguments – should benefit from the new technology and be able to view their arguments if they wish. We believe this is an important opportunity for furthering our clients’ rights to access to justice and the courts in California.

We are aware of at least one such request for remote access in the First District Court of Appeal so far.  In that case, the Attorney General agreed that remote access was appropriate for that litigant’s circumstances.  The AG also declared that CDCR “regularly grants represented inmates the courtesy of such access,” though they also noted that “the Department considers each request for remote access to court proceedings individually, to balance institutional safety, security, and logistical concerns.” While oral argument has not yet occurred in that case, the AG agreed to help facilitate remote viewing of oral argument in that case.

After deciding to request oral argument, we hope that you will discuss with your clients whether they would like to view the argument remotely. A template client letter with sample language is available here. Of course, it will be important that your client understands they will be a viewing member of the audience, whose image will not be visible on screen during the proceedings. In addition, just as with in-person settings, it is important to remind your client (or their family members) that appellate argument is not at all like a trial (i.e. no evidence is presented, there are no witnesses, the appearance is short, and the court will not rule from the bench). 

If you have a case where you believe requesting remote access to oral argument would be appropriate, please reach out to your FDAP consulting attorney, who would be happy to strategize with you and provide a sample request.

After contacting your consulting attorney, if your client is in prison, you should begin by contacting the prison’s litigation office with the request. We suggest that such requests be made in writing so there is a written record in the event a request is denied. Contact information for litigation coordinators can be found here. If your client is in county jail or at a state hospital or another psychiatric facility, you should communicate with the institution directly or the local public defender about the correct procedure for such a request. Many jails, state hospitals, and local psychiatric facilities have already been using video conferencing for remote trial court proceedings, so the technology is in place.

For now, we recommend against seeking remote access to oral argument in a sex offense case or any other case that might jeopardize the safety of a client in prison or jail.  As for our clients who are in custody but do not speak English, we would like them to have meaningful remote access to their oral arguments, but we have not yet identified a means of providing access to interpreters.  We also have not yet tested the waters in the delinquency context, which presents unique challenges.  If you would like to pursue remote access to oral argument for a youth in juvenile detention, please consult with your FDAP consulting attorney first.

 We also ask that you please share the results of your requests with us.  This is a developing issue, and we are eager to see how different institutions address the requests and how considerations such as a client’s security level may impact the willingness of CDCR and other institutions to facilitate remote access.  Having this information will help us to tailor our strategy for future requests to grant our clients remote oral argument access.