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Kansas trial courts virtual courtroom
standards and guidelines
November 16, 2020
Governing Authority
Kansas Supreme Court Administrative Order 2020-PR-056 and some Kansas statutes authorize
using two-way telephonic or electronic audio-visual communication for any essential or
nonessential court proceeding or any portion of a proceeding.
The guidance provided here is to give courts:
• standards for remote proceedings;
• guidelines for meeting the standards; and
• examples of practices under the standards.
The Virtual Court Proceedings Committee identified examples of practices for conducting
remote, two way telephonic or electronic audio-visual proceedings. These practices are not the
only way to meet a standard, but serve as examples of what works. They are offered to help
courts and judicial officers develop their own procedures.
Definitions
“Platform” means the conferencing software platform used to conduct a remote court hearing,
such as Zoom, WebEx, or BlueJeans.
“Remote hearing” or “remote court proceeding” is any hearing in which the court conducts a part
of the hearing using conferencing software platform.
“Chat” is a platform feature that allows participants to send written messages, either to an
individual or the collective, while using the software platform.
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A. Legal considerations for remote court proceedings
Standard
A remote court proceeding must be consistent with rights under the United States and Kansas
Constitutions, including those of a criminal defendant or victim.
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Persons are not required to
waive a constitutional right.
Guidelines
• All Matters
o At the start of each remote hearing, the court must verify with each participant that they
are able to proceed and are aware of the procedure for participating, including the time
and method of participating.
o The court should address with the parties and other persons
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having a right to be present
that they are waiving any right they may have to be present in the courtroom for the
proceeding.
• Criminal Matters
o A criminal defendant has a constitutional right to be present at every critical stage of the
proceedings.
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At the beginning of the remote proceeding, the court should inquire and
determine whether the defendant is voluntarily, knowingly, and intelligently waiving the
right to be physically present in the courtroom for the proceeding. If the defendant
requests to be physically present in the courtroom for the critical stage, then the court
should reset the matter for the defendant to physically appear.
o If a witness is appearing remotely, then the court should—prior to taking testimony—
inquire whether the defendant is knowingly and intelligently waiving the right to have the
witness appear in person, unless the person’s appearance is excepted by law.
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o A victim of a crime has the right to be present at public criminal proceedings.
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If a victim
requests to be physically present in the courtroom, then the court should determine and
state in open court whether the victim’s request interferes with the constitutional or
statutory rights of the defendant.
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1
Kan. Sup. Ct. AO 2020-PR-056.
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For example, interested parties in child in need of care proceedings under Kan. Stat. Ann. §38-2241
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State v. McDaniel, 306 Kan. 595, 600–02, 395 P.3d 429, 437–38 (2017).
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State v. Busse, 231 Kan. 108, 111, 642 P.2d 972, 975 (1982); State v. Hall, 298 Kan. 978, 987–88,
319 P.3d 506, 512 (2014).
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Kan. Const. art. XV, § 15.
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Id.
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• Juvenile Offender Matters
o A juvenile at adjudication has constitutional rights similar to an adult criminal
defendant.
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At the beginning of the proceeding, the court should inquire and determine
whether the juvenile is voluntarily, knowingly, and intelligently waiving the right to be
physically present in the courtroom for the adjudication proceeding. If the juvenile
requests to be physically present in the courtroom for adjudication, then the court should
reset the matter for the juvenile to physically appear.
▪ If a witness is appearing remotely, then the court should—prior to taking
testimony—inquire whether the juvenile is knowingly and intelligently
waiving the right to have the witness appear in person, unless the witness’s
appearance is excepted by law.
▪ A victim of a crime has the right to be present at public criminal proceedings.
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If a victim requests to be physically present in the courtroom, then the court
should determine and state in open court whether the victim’s request
interferes with the constitutional or statutory rights of the juvenile.
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o Civil, Child in Need of Care, Domestic and Other Noncriminal Matters
▪ At the beginning of the proceeding, the court should inquire of each party
whether the party consents to the remote court proceeding. If the party does
not consent to all or a part of the proceeding to be held remotely, then the
court must determine whether the use of a remote court proceeding would
promote the opportunity of each party to be heard at a meaningful time and in
a meaningful manner.
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If the matter is a trial, the court should determine
whether good cause and compelling circumstances exist to permit remote
testimony.
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State v. Spates, 29 Kan. App. 2d 1089, 1096, 36 P.3d 839, 843 (2001); In re L.M., 286 Kan. 460, 471,
186 P.3d 164, 171 (2008).
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Kan. Const. art. XV, § 15
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Id.
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In re J.D.C., 284 Kan. 155, 155–56, 159 P.3d 974, 976 (2007).
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Kan. Stat. Ann. § 60-243(a).
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B. Integrity of the proceeding
Standard
Virtual court proceedings should be conducted in a manner that promotes the integrity of the
judicial system and instills user confidence.
Guidelines
• Maintaining Court Decorum
o Despite not being physically in a courtroom, the court should continue to remind
participants of the following:
▪ The proceeding is live. Anything said or done during the proceeding may be
overheard or seen by all observers.
▪ The proceedings are being recorded. Everything said will be captured and
made part of the record just as in a physical courtroom.
▪ Courtroom decorum rules still apply. Those participating should continue to
operate as if they were inside the courthouse. Standards, for decorum,
demeanor, and dress code, still apply.
▪ Staff participating in remote proceedings should have a professional
background. Courts are encouraged to use pictures of their courtroom as the
background.
o All participants should:
▪ dress appropriately for a court proceeding;
▪ remain in place when appearing on video or by telephone; and
▪ not engage in other activities while appearing for virtual court.
o Witnesses:
▪ A witness may not use notes, papers, phones, computers, or anything else
without permission from the court.
▪ All electronic devices other than the device facilitating the testimony must be
turned off.
▪ Counsel and the court may ask at any time to see anything the witness sees or
to adjust cameras to ensure compliance with all court directives.
▪ No program or window will be open on any computer or electronic device in
the witness’ possession during testimony. No one is allowed to pass notes by
electronic or other means to or from the witness during testimony.
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▪ If a request for sequestration is granted, all witnesses will be moved to the
waiting room until their testimony is needed.
• Participant Safety
o In all matters where a participant’s safety is a concern (for instance, protection order
cases or domestic violence cases), the court should take measures to confirm that the
participant is speaking freely and without coercion.
▪ The court could ask the participant to pan the camera around the room to
make sure no one else is present.
▪ A volunteer agency (such as Legal Services or a domestic violence advocate)
could create a safe space for conducting these hearings and certify to the court
the space is safe.
C. Making a record
Standard
A verbatim record must be made of any remote court proceeding whenever an in-person court
proceeding would require a record. These guidelines are intended to provide some instructions
on how to ensure that any recording made of the remote court proceeding is clear and can be
used to accurately develop a transcript.
Guidelines
• Methods for Making a Record
o The record can be made in any manner that is sufficient to produce a verbatim written
transcript as if the hearing were held in person in the courtroom, including the following
manners:
▪ By use of a Certified Shorthand Reporter (CSR) or Certified Court Reporter
(CCR), whether in person or by remote.
▪ By an in-court audio recording system.
▪ By a recording system that is part of the platform used for the remote court
proceeding.
o For purposes of generating a transcript, courts may use the recording of a remote
proceeding generated by the remote proceeding platform. Kansas Supreme Court Rule
360 authorizes courts to use electronic recording equipment to make a record of court
proceedings; however, it must comply with specifications set forth by the Kansas
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Supreme Court. The electronic recording created pursuant to Kansas Supreme Court Rule
360 is the recording from which a transcript must be produced.
o When using videoconferencing technology or telephonic equipment without a certified
court reporter participating, a suggested practice is for duplicate recording methods, such
as using the platform’s recording capability and simultaneously using the court’s
recording equipment. You will get the best audio quality if you can feed the platform
audio into the court’s recording system. If a direct feed into the recording system is not
possible due to equipment limitations, place a microphone from the recording system
near the speaker emitting audio of the remote court hearing.
• Using Platform Software for Recording
o The following guidelines should be observed if the platform software audio-video
recording of the remote proceeding is the method used for creating a record of the
proceeding:
▪ The court should verify that the default recording format used by the platform
may be used by people who prepare transcripts. In most platforms, the
generated recording is in MP4 format.
▪ The “dial in” or “call in” options can be used if audio quality is an issue.
When a participant is first starting the meeting, the participant can change the
audio option to “call in” or “dial in,” then follow the instructions to connect to
the meeting. The participant will then be connected by video, the same as
before, but the audio will be through the participant’s phone line. When
frequent pauses or buffering occurs, this option frequently improves audio
quality.
▪ If the platform software is used to record the hearing, the recording should be
downloaded to the court’s own network daily. The recording should be stored
in the same network location as recordings made through the court’s in-person
equipment. Whenever possible, the recording should be made in or converted
to a format that is readable by common court transcription software.
• Provide Instruction to Participants
o Advise parties to speak slowly and to wait until prompted to speak. At a minimum,
parties who appear by telephone should be instructed to identify themselves each
time they speak.
o Courts must be vigilant in ensuring quality recording so an accurate transcript can be
prepared. Because of software time delay when participating by telephone or
videoconference, parties may be more likely to overlap when talking. Judges should
frequently remind parties to talk slowly and to not interrupt. If overlap occurs, judges
should ask parties to repeat what they said and encourage parties to only speak when they
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have been prompted to do so, unless there is an objection or some other reason to speak
out of turn.
o When multiple people talk at once, it interferes with the platform’s ability to determine
which participant to display if the platform default is to show the video feed of the person
speaking. Using “gallery view” will allow the court to see all participants and the court
reporter or recorder to know who was speaking.
• Identify Participants by Name
o When possible, participants should be instructed to display their full names on the screen.
The court may direct participants to edit their name display or use host functions to edit
participant names.
o When a participant calls in, the default setting may be for the phone number to display on
the screen. If the platform allows it, the host or co-host should change the phone number
to the participant’s name.
D. Court use of platform software
Standard
The court should be familiar with the platform software and use its features to ensure a fair,
orderly hearing.
Guidelines
• Designate a Cohost
o Some platforms allow designating a cohost. Judges can be the host and a staff member,
either a clerk or other court employee, can be cohost and manage participants.
o In advance of any remote hearing, the host or co-host should:
▪ Test the remote videoconference audio and video, including as many
participants as possible.
▪ Test audio and video recording.
▪ Preview lighting, background, camera location, and screen name for the judge
and court officials.
▪ Charge all device batteries. If using a laptop, it should be plugged in or fully
charged. Have a fully charged cell phone or other mobile device available as a
backup, and keep a charger nearby, as videoconference session can drain
batteries quickly.
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• Monitor Audio and Recording
o During the meeting, the host or cohost should monitor sound to ensure that it is
functioning, speech is clearly heard, and the in-court recording system or platform is
recording.
• Troubleshoot Audio Echo in a Meeting
o Some common causes of audio echo, or feedback, during a remote meeting, are:
▪ A participant who called in by phone is also using computer audio at the same
time.
▪ A participant has computer or telephone speakers too close together.
▪ There are multiple computers with active audio in the same conference room.
▪ A participant’s speaker volume is too loud, so the participant’s microphone is
picking up its own speaker’s sound, creating a feedback loop. The participant
can turn down the speaker volume to solve this.
o Most of the time, feedback can be eliminated if there is only one audio source.
o Audio quality will likely improve if participants use headphones and a microphone.
• Using Other Platform Features
o Different platforms offer different options, and the host and cohost should be familiar
with the capabilities of the platform the court uses so these features can be readily used.
Courts need to determine which features work best for their individual needs. Not all
platforms support every function listed:
▪ Waiting room. When the host enables the waiting room function, it allows
the host to individually admit participants and prevent participation by
individuals who are not litigants in that case.
▪ Mute upon entry. This setting automatically mutes participants upon entry
into the remote courtroom.
▪ Raise hand. Participants who want to get the court’s attention may click a
button to “raise their hand.” The host can then unmute them so they can speak.
If the court wants participants to raise their hands before speaking, the court
should advise participants of this expectation.
▪ Chat. The chat function allows participants to type text during the proceeding,
either to the group as a whole or privately to certain individuals. The host can
set chat parameters to allow the host and participants to chat with only the
host, with everyone publicly or privately, or with no one.
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The court may want to use the chat feature for general
instructions or to help resolve technical difficulties.
The court should exercise caution when using the chat feature
because it may result in ex parte communication between a judge
and party or record a confidential communication. Chat records
may inadvertently appear in the platform’s recording.
Therefore, the court should advise participants that the chat
feature may not preserve confidentiality.
Witnesses should not be allowed to use the chat feature while
testifying.
Participants should be prohibited from communicating with other
participants during the hearing, unless permission is granted by
the Court.
▪ Remove disruptive participants. Most platforms allow a host to remove a
participant if needed. If the court is using the waiting room feature, a
participant can be returned to the waiting room. That participant cannot rejoin
the meeting on their own and can only be readmitted by the host.
▪ Hold. A host can temporarily remove a participant from the remote
courtroom, while the rest of the participants continue the meeting. When one
or more participants are put on hold, the attendees’ video and audio
connections are disabled. This might be used when the judge wants to speak to
the attorneys (without a witness hearing) or address an issue with only court
personnel.
▪ Play sounds when participants enters or leaves meeting. A host can
configure settings to play a sound when someone enters or leaves a
proceeding. This will help the court and the recorders and operators track
participants in the hearing.
E. Attorney-client communication
Standard
During any court proceeding by telephonic or audio-visual communication, the court must
provide a method for confidential communication between a party and the party’s counsel.
Guidelines
• Breakout Rooms
o Some platforms allow an attorney to meet privately with a client remotely in a breakout
room. Breakout rooms should be considered a private place that counsel and client can
speak openly and preserve attorney-client privilege. As such, breakout rooms should not
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be recorded under any circumstances. However, each platform varies, and courts should
fully research breakout rooms for each platform and be cautious of specifics.
Zoom
▪ Recording: Platform recording will only record the main room, regardless of
what room the meeting host is in. The in-court audio recording system will
record the room where the participant who is recording is located.
▪ Ending the breakout room: The host can set a predetermined amount of time
and bring participants back into the main room. If the host does not want to
put a time constraint on the breakout room, the host can send a time warning
to participants in the breakout room to let them know they should wrap up.
Participants in the breakout room can rejoin the hearing when they are done
meeting.
▪ Communicating with breakout room: There is no ability to communicate
between the main room and the breakout room, so if the host (judge or clerk,
typically) needs to communicate with participants in a breakout room, the
judge or clerk would have to enter the breakout room. If the host is recording
the main meeting using the in-court audio recording system, then the
recording will follow the host and record the breakout room.
BlueJeans
▪ Recording: Platform recording will record all breakout rooms also. In-court
audio recording system will record the room where the participant who is
recording is located.
▪ Ending the breakout room: The host can enter the breakout room or remove
people from the breakout room. The host can also end all breakout rooms at
one time. Participants in breakout rooms are warned their session is ending.
The warning time can be set by the host.
• Chat as Alternative to Breakout Room
o If a private breakout room in not available on the platform, another option to allow
private attorney-client communication must be provided. Most platforms allow for
private chat between participants. However, before this method is considered as an
option, the court should verify the platform does not preserve the chat or allow creating a
transcript from those chats at a later date.
• Other Methods
o If private communication is not available within the platform, courts must allow an
alternate method, such as:
▪ Allow counsel and the client to leave the remote proceeding to discuss
privately by telephone or another method, then rejoin the remote proceeding.
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▪ Allow counsel and the client to communicate during the hearing by some
other method that is not connected to the platform, such as email or text
message.
F. Public and Media Access
Standard
Public and media access to remote court proceedings should be provided either during the
proceeding or shortly afterward, unless the proceeding is closed or access would otherwise be
limited by statute or rule.
Guidelines
• Recording Proceedings
o Recording any remote proceeding by any person other than the court is prohibited. The
court should advise that any party, attorney, witness, or other person who creates an
unauthorized recording of any portion of a remote court hearing may be held in contempt
of court, for which the court may impose sanctions following a hearing, and may face
other penalties.
• Post Daily Dockets
o Courts should post their daily dockets in a public location including the court’s website,
if available, and indicate on the docket which hearings will be held remotely. Instructions
for accessing remote hearings should also be provided.
• Livestream Proceedings
o The court may stream the court proceeding live online. If livestreamed, the court may
include a watermark on the livestream video that states whether recording and
rebroadcasting the proceeding are prohibited. If livestreamed, the court should delete the
livestream immediately following the end of the remote hearing.
▪ If livestreamed, the platform’s meeting ID(s) should not be provided to the
public or media unless requested. This will avoid disruption and keep the
remote courtroom secure.
▪ Livestreaming may not be appropriate for sealed or sensitive cases. In those
cases, complying with the open court requirement by allowing remote
attendance, as described below, may be preferable.
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• Attending the Hearing
o For cases not statutorily sealed but still sensitive, publishing the platform’s meeting
information and allowing attendance may be preferable to livestreaming. This method
allows the court to monitor who is attending.
▪ The court may allow observers into the remote court proceeding but mute
them, thereby allowing observation of the open court proceeding but not
participation.
▪ The court may allow observers into the courtroom where the remote court
proceeding is occurring so the observer can view the remote court proceeding.
This may be accomplished by having the proceeding broadcast on a television
or monitor in the courtroom or other designated location.
▪ The court may post a recording of the proceeding on the court’s website for a
limited time following the hearing. If this is used, the prohibition against
duplicating the proceeding will still apply.
G. Logging requirements
Standard
All audio or audio-video recordings of remote court proceedings should be logged as to date,
time, case number and party name so that they may be located in the event transcription of the
proceeding is required.
Guidelines
• Logging recordings
o Logs for remote hearings should be kept in the same manner and location as logs for
other court recordings.
o The court should make sure log information and the recording, whether by platform or
local recording system, is provided to the local court clerk where the case is filed.
o Storage for audio-video files needs to be large, secure, and accessible.
o The court should use tools available through the platform to help keep accurate logs and
information.
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H. Exhibits
Standard
Materials that are intended to be used as evidence at or during a proceeding must be submitted to
the court as directed for introduction into evidence as exhibits. Such materials shall not be filed
with the clerk of the court prior to the proceeding.
Guidelines
• Exhibits should be premarked and submitted electronically to court and counsel and
accompanied by a master exhibit list. Courts should follow established timelines for
submitting exhibits prior to the proceedings.
• Courts may direct exhibits be uploaded to a centralized, secure storage platform that allows
participants access to exhibits prior to and during proceedings. If cloud-based storage areas
are used, designated links should be provided by the court to all participants prior to the
proceeding.
• The use of electronic exhibit stickers for marking documents prior to a proceeding is
recommended. This should be completed by the process recommended by the trial judge.
Electronic stickers require document exhibits to be maintained in PDF format. For easier
exhibit identification and access during a proceeding, documents should be saved in separate
files.
• At the conclusion of a proceeding, PDF exhibits should be “flattened” to prevent
modifications.
• Exhibits admitted or proffered for the record should be maintained under the same protocols
as exhibits admitted or proffered for the record in in-person proceedings.
I. Provide meeting information to parties
Standard
The court shall provide adequate notice to the parties and ensure that the parties are able to
participate remotely.
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Guidelines
• The court can provide remote court proceeding information to parties either by email,
traditional mail, or by any means of service of process authorized by statute or Supreme
Court rule.
o The court should approve a form notice of hearing that advises participants of the correct
software, meeting ID, and time of hearing.
o The notice should include concise instructions for joining by video AND for joining by
phone audio only.
o The notice should contain contact information for court personnel who can provide
specific, detailed instructions.
o If the party does not have email or the ability to join by video, the notice or the party
providing the notice should provide the telephone number and meeting code to join the
meeting so that person can participate by telephone.
J. Business processes in support of remote courtroom
Standard
Courts must be able to support their fundamental business processes when establishing a remote
courtroom. This includes the ability to operate as if the court was using its traditional brick-and-
mortar courthouse. The court needs to account for electronically filing documents, electronically
signing orders to document the court’s hearings, and maintaining court decorum. Each court will
have slightly different business processes to account for local differences.
Guidelines
• Electronic Signatures
o If a court uses an audio-visual means for remote court, the court should also have the
means to access signatures and provide documents electronically or by other means.
K. Failure to appear in remote court
Standard
Failure to appear for remote proceedings should have the same consequences as failure to appear
for in-person proceedings at the discretion of the court.
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Guidelines
• Failure to Appear
o The document that requires a participant to appear for a remote court proceeding needs to
include language that failing to appear for the remote proceeding carries the same
consequence as missing an in-person proceeding.
• Reasonable Accommodations
o The court should evaluate reasonable accommodation if a participant tells the court they
are unable to or desire not to appear remotely, or if the court determines that the
participant has made a good faith attempt to participate but was unable to because of
technical difficulties such as loss of signal or connectivity.
