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A juvenile charged with delinquency sought permission from the court to attend the hearing virtually after she and her mother had relocated to another state.

Prosecutors refused, demanding that the juvenile attend court in-person or be faced with the issuance of a bench warrant and arrest.

The trial court agreed with the prosecutors. The Appellate Division has now reversed this decision, calling it an "abuse of discretion."

On July 22, 2021, the Essex County Prosecutor's Office filed a Juvenile Delinquency Complaint against a juvenile revealed only as T.W., charging her with offenses, which if committed by an adult, would constitute third-degree invasion of privacy, third-degree invasion of privacy, and disorderly-persons harassment. Prior to the filing of the complaint, T.W. and her mother moved to Sumter, South Carolina.

On December 30, 2022, T.W., who is represented by a state public defender, filed a motion seeking permission to appear at trial virtually. In her application, T.W. asserted that appearing in person would be a financial hardship, as her mother does not have the financial ability to travel from South Carolina to New Jersey. T.W.'s mother represented she does not get paid for days she does not work, does not have the funds to travel, nor does she have friends or family in New Jersey with whom the two could stay during the trial.

The Prosecutors opposed T.W.'s motion, relying on section 2 of the Supreme Court's October 27, 2022, order, titled "The Future of Court Operations – Updates to In-Person and Virtual Court Events," (Order), which provides, in part, that juvenile delinquency matters "will generally proceed in person but may proceed virtually with the consent of all parties."

On January 23, 2023, the trial court denied T.W.'s motion to appear virtually. In an oral decision, the judge initially observed that there existed "no guidance in the [Rules] or relevant case law regarding a defendant's right to appear virtually when appearing in-person is a hardship."

Next, the court expressed concerns regarding the impact T.W.'s virtual appearance at an in-person trial would have on her Sixth Amendment right to participate, namely, her ability to confer with counsel and assess witness credibility. The court also noted it was reluctant to proceed with a hybrid trial due to the confidential nature of juvenile proceedings and the sensitive evidence to be presented in this case. 

The court also noted the possible difficulties in assessing the juvenile's virtual testimony in the event she elected to testify. Finally, the court rejected T.W.'s argument that ordering an in-person trial would amount to ordering her to waive her appearance for trial because the record did not evidence efforts taken by the Office of the Public Defender "to get the juvenile and her parent a bus ticket to New Jersey."

The court also denied T.W.'s subsequent reconsideration application, concluding that permitting T.W.'s virtual appearance would "effectively muzzle" her because "if she is going to appear, it has to be a meaningful appearance."

T.W. filed a motion for leave to appeal, which the Appellate Division granted on an emergent basis.

In a written ruling just released, Appellate judges Natali and Smith agreed and vacated the trial court's decision denying her motion to attend her court hearing virtually.

Contending that the Order "specifically provides" for the type of relief she seeks, T.W. argues that the motion court abused its discretion in denying her motion to appear virtually at her in-person trial. 

T.W. next contends the Prosecutor and the motion court "misread" the Supreme Court's Order, and failed to consider her request under section 7(b) of the Order, which provides:

7. Court events will be scheduled and conducted consistent with the principles of procedural fairness. 

For all types of matters: 

. . . . 

b. In individual cases, all judges will continue to have discretion to grant an attorney or party's reasonable request to participate in person in a virtual proceeding or to participate virtually in a matter being conducted in person.

T.W. also argues the court's denial of her motion to appear virtually amounts to a denial not only of her fundamental right to participate in her trial but also "denies her equal protection under the law," as she does not have the financial ability to appear in-person. T.W. explains the motion judge's concerns with her appearing virtually are based on the incorrect presumption that the alternative to T.W.'s virtual appearance is her in-person appearance, when the actual alternative is that T.W. will be tried in absentia.

In denying T.W.'s motion to appear virtually, the motion court relied on section 2(c) of the Order, which provides, as noted, that juvenile delinquency matters will be among those that "will generally proceed in person but may proceed virtually with the consent of all parties." In this case, the Prosecutor did not consent to a virtual trial. The court, however, did not address whether the Prosecutor's refusal to grant consent was reasonable, or its ability to grant T.W.'s request under section 7(b) of the Order.

The Order "establishes a more sustainable approach to court operations in order to optimize access, participation, and the timely administration of justice." The Order also states that by "continuing to leverage virtual technologies, the court today can effectively balance in-person and virtual proceedings in a way that maximizes access and fairness and supports meaningful participation and timely justice." As such, the Order presupposes that, in cases where a reasonable request for virtual appearance is made, and to consent to such an accommodation is in the interest of justice and fundamental fairness, consent by the opposing party will not be unreasonably withheld.

In this case, the Prosecutor's primary reason for withholding consent to T.W.'s virtual appearance was ostensibly to protect T.W.'s Sixth Amendment rights and ensure the security and decorum of the trial proceeding. We discern no violation or impingement of T.W.'s constitutional rights through a virtual appearance so long as all technological and procedural considerations are observed. As such, we conclude the Prosecutor's refusal to consent was unreasonable. Under the circumstances, the court was empowered to grant T.W.'s request under section 2(c). Finally, we are satisfied that section 7(b) permits T.W. to participate virtually under the unique circumstances presented.

In addition to T.W.'s right to be present, T.W.'s mother is a necessary party to T.W.'s delinquency proceeding. Indeed, Rule 5:20-4 states "the parents, guardians or other person having custody, control and supervision over the juvenile shall be necessary parties to every proceeding in all juvenile delinquency actions." Accordingly, both T.W. and her mother have a right to be present at T.W.'s trial.

In our view, T.W.'s request to appear virtually for trial was eminently reasonable and appropriate. First, as noted T.W. has a constitutional right to participate in her defense, and her mother is a necessary party to T.W.'s proceedings. Second, T.W. demonstrated she and her mother do not have the financial ability to travel from South Carolina to New Jersey for trial. As a juvenile, T.W.'s ability to travel is dependent entirely on her mother's ability to provide for those attendant expenses, and as T.W.'s mother represented to the court she does not have the financial ability to travel from South Carolina to New Jersey, denying T.W.'s request to participate virtually constituted an involuntary waiver of her rights. Allowing T.W. to appear virtually constitutes a reasonable accommodation, is expressly permitted under the section 7(b) of the Order, and under section 2(c) in a situation where a party unreasonably withholds consent.

Accordingly, the Appellate Division judges overturned the trial court's ruling denying the motion to attend court virtually.

Assistant Deputy Public Defender Brian P. Keenan represented T.W.

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