Protecting sensitivities in court proceedings

By Atty. Eduardo T. Reyes III

 

The “right to a public trial” is enshrined in the Constitution. One of its facets is the right to access by the public and the press over happenings in court proceedings.

As the term implies, it is a “right”; which rightly belongs to the accused. And just like any other right, it can be waived by the person to whom it belongs.

In criminal cases, there are only four instances under the rules when the presence of the accused is mandatory: (1)during arraignment, when he needs to enter a plea after the indictment is read to him; (2) during pre-trial; (3) when a witness would need to make an in-court identification; and, (4) during promulgation of judgment which includes sentencing.

In turn, in civil cases, while parties may be required to be present at certain stages of the trial, they may do so through their attorney-in-fact whom they may appoint via a special power of attorney.

Worryingly, some courts require the personal presence of both the complainant and the accused in criminal cases, as well as all the parties in civil cases, in all stages of the case, ie., at each and every hearing to include mere motions. And because of the court’s residual power to cite for contempt any party that fails to comply with its edicts, parties have to marshal every ounce of energy to attend the hearings to the point of dropping all of their other pressing concerns and, in effect, numbing their sensitivities.

Do party-litigants have the right not to attend some of the hearings?

First the psychological dimension, before the legal.

In a recent study by Karl Moore who is an associate professor at McGill University in Canada, he observed that “around 40% of the population are introverts, 40% are extroverts and 20% are “ambiverts” who can display both characteristics”. (“The link between personality and success, combining introverts and extroverts”, The Economist, March 18^th 2021).

Factoring in the sensitivities of each personality type is important. Psychologists are in agreement that while extroverts draw their energy from meeting and talking with people, introverts gather theirs from solitude and silence.  For introverts therefore to be constrained to go out in public for a prolonged period of time, it will drain so much of their energy. In her bestselling book entitled “Quiet”, Susan Cain gave an example of how much it would take from an introvert to engage in public speaking for a long period of time. She described how a well-loved professor would go on lecturing for hours in front of an inspired class only for him to spend his lunch-break walking alone in the nearby beach experiencing nausea and even vomiting. He is an introvert.

This is what is called “social anxiety disorder” which introverts experience with the mere idea of going out in public. In “Quiet”, citing Schwartz’s research, “he suggests something important: we can stretch our personalities, but only up to a point”.  While Jason Fried, cofounder of the web application company 37signals quipped that he “prefers passive forms of collaboration like e-mail, instant messaging, and online chat tools. His advice for other employers? Cancel your next meeting”.  “Don’t reschedule it. Erase it from memory”.

And going back to the article “The link between personality and success, combining introverts and extroverts”, The Economist, March 18^th 2021, citing the book “Running Meetings That Make Things Happen” by Jon Baker, he recommends that “managers should encourage introverts to contribute to the discussion by asking specific questions of them in their area of expertise. Another approach is to ask people to write down their ideas rather than contribute verbally.”

Compelling litigants therefore to indiscriminately attend every hearing may have an adverse impact on their psychological make-up and self-esteem. Save for those instances when their presence is really absolutely necessary, courts should be more sensitive to the sensibilities of the parties and allow them to opt not to attend some of their hearings.

And now from the legal standpoint.

It is respectfully submitted that this is a right that is embraced within a person’s right to privacy which harkens back to common law and was officially recognized in Griswold v. Connecticut (1965) as part of the substantive right to due process. Griswold’s precursor is the dissenting opinion of Justice Brandeis in Olmstead v. United States (1928) where he profoundly described the right to privacy as follows:

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone – the most comprehensive of rights and the right most valued by civilized men.” (Italics, underlining and emphasis supplied).

Assuredly, in the skeins of litigation, the sensitivities, emotions and sensations of the litigants must be taken into account when courts bang their gavels.

(The author is the senior partner of ET Reyes III & Associates- a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).