No Presumed Confidentiality in Remote Hearings: The Wisconsin Supreme Court’s Ruling in State v. Kordell L. Grady (2025 WI 22)

Key Holding: During remote or hybrid court proceedings, a circuit court is not constitutionally required to create or enforce a private attorney-client channel unless the defendant clearly requests confidentiality; communications are privileged only if demonstrably intended to be confidential.

1. Introduction

Case name: State of Wisconsin v. Kordell L. Grady, 2025 WI 22.

Court: Wisconsin Supreme Court. Majority opinion by Justice Ziegler; concurrence by Justice Dallet (joined by C.J. A.W. Bradley); dissent by Justice Protasiewicz.

Parties: State of Wisconsin (plaintiff-respondent) vs. Kordell L. Grady (defendant-appellant-petitioner).

Procedural posture: Review of a Court of Appeals summary affirmance upholding a restitution order and denial of post-conviction relief.

Central issue: Whether Grady’s due-process rights and attorney-client privilege were violated when, during a Zoom restitution hearing, he consulted with counsel in open court and the prosecutor used the overheard remarks to argue ability to pay.

2. Summary of the Judgment

• The Court affirmed the circuit court and Court of Appeals, ruling that no due-process violation occurred.
• Key factual finding—not clearly erroneous—was that Grady did not intend a confidential consultation; he spoke after the judge warned that everyone could hear him, yet neither he nor counsel sought privacy.
• Because confidentiality was never requested, the circuit court had no constitutional duty to halt proceedings, clear the courtroom, or create a virtual breakout room.
• Without an intent to keep the conversation private, WIS. STAT. § 905.03 (attorney-client privilege) did not attach; thus the prosecutor’s reference to the statements was permissible.
• The ineffective-assistance claim failed for lack of prejudice, as the restitution amount ($19,071.28 repairs + $1,000 deductible) was undisputed.
• Decision sets a precedent: in remote hearings, the burden rests on the litigant (or counsel) to invoke confidentiality; absent such a request, no per se due-process breach arises.

3. Analysis

3.1 Precedents Cited and Their Influence

• Mathews v. Eldridge, 424 U.S. 319 (1976) – flexible due-process balancing; majority references to show that fairness depends on context, not rigid formulae.
• Strickland v. Washington, 466 U.S. 668 (1984) – governs ineffective-assistance framework; applied to reject prejudice prong.
• State v. Wiskerchen, 2019 WI 1 – articulates deferential “clearly erroneous” standard for factual findings; linchpin for upholding trial court’s view on intent.
• Lane v. Sharp Packaging (2002) & State v. Meeks (2003) – define attorney-client privilege as limited to communications intended to be confidential.
• Pico (2018) & Kerr (2018) – reinforce de novo review of constitutional questions while deferring to trial-level fact-finding.

3.2 The Court’s Legal Reasoning

1. Standard of review first. The Court framed the entire analysis around whether the circuit judge’s factual finding on intent was “clearly erroneous.” Finding it was reasonable, all downstream constitutional claims collapsed.
2. No request – no duty. Relying on the flexible nature of due process, the majority concluded that fundamental fairness did not compel the judge to sua sponte create a private channel. Defendants must signal the need.
3. Privilege follows intent. Because confidentiality was not intended, § 905.03 simply did not apply; therefore, the prosecutor did not exploit privileged information.
4. Collateral issues disposed. The Machner (ineffective-assistance) hearing was unnecessary; even had counsel objected to the extra $1,000 or sought privacy, the restitution result would not have changed.

3.3 Potential Impact of the Decision

The ruling has significant implications for remote justice:

• Shifts Burden to Litigants: Defendants and attorneys must affirmatively request confidentiality tools during video proceedings; silence is treated as waiver.
• Standard for Trial Judges: No automatic constitutional violation arises from failing to provide breakout rooms; judges remain encouraged (but not required) to offer them, as emphasized by the concurrence.
• Attorney-Client Privilege in the Digital Age: Privilege hinges on demonstrable intent; open-mic conversations on Zoom are presumptively non-privileged.
• Best-Practice Momentum: Justice Dallet’s concurrence outlines “best practices” (announce private channels, periodic checks). While non-binding, they are likely to influence circuit-court protocols and judicial-education materials.
• Dissent as Roadmap for Reform: Justice Protasiewicz’s dissent argues for a due-process requirement that judges proactively explain confidentiality mechanics. Future litigants may cite the dissent in pushing for rule amendments or in jurisdictions outside Wisconsin.

4. Complex Concepts Simplified

“Clearly Erroneous” Standard

Appellate courts do not redo fact-finding. They ask only whether a reasonable judge could reach the same factual conclusion on the evidence. If yes, the finding stands—even if the appellate judges might have found differently.

Attorney-Client Privilege vs. Confidentiality

The privilege protects only those communications that were meant to be private. Saying something where you know third parties can hear (e.g., open Zoom channel) generally destroys the privilege.

Due-Process “Fundamental Fairness”

Due process is about fairness, not perfection. Courts look at the total circumstances. If the procedure was good enough to avoid injustice, the Constitution is satisfied.

5. Conclusion

State v. Grady cements a pragmatic rule for the videoconference era: confidentiality must be claimed to be protected. The decision reinforces judicial deference to trial-level factual determinations and clarifies that the attorney-client privilege is not self-executing in digital courtrooms. While the majority sets a clear constitutional floor, the concurrence and dissent highlight the growing expectation that courts proactively safeguard private attorney consultations in virtual settings. Practitioners would be well-advised to:

• Explicitly ask for a breakout room or other private channel whenever sensitive discussions are needed.
• Record any denial or technological shortcomings for potential appellate review.
• Educate clients—especially those appearing from correctional facilities—about the open nature of video feeds.

In the broader landscape, Grady will likely steer courtroom technology policies, incentivizing formal directives or rule changes to ensure informed, knowing waivers rather than inadvertent forfeitures of confidentiality.