New York(CNN) In the middle of April, with offices closed and air travel at a standstill as coronavirus ravaged the country, federal prosecutors in Georgia contemplated what to do about a long-running criminal health care fraud investigation, according to a person familiar with the matter. They needed to conduct additional interviews to advance the probe, but no one knew how long it would be until they could question witnesses in person.
So, they took a step typically reserved in cases of extreme security concerns or severe illness: Prosecutors interviewed a witness over the phone. The plus: They could push the case forward. The minus: They had limited ability to read the witness's body language or assess a host of other cues they typically use to determine a person's credibility.
With prosecutors' offices closed around the country -- and many, especially in coronavirus hot spots, having no opening date in sight -- they have begun to interview witnesses remotely in criminal investigations, a step that allows authorities to make progress on a case but comes with a host of technological, investigative, legal and ethical issues that complicate what can be a delicate process even under normal circumstances.
Though few imagined at the outset of the pandemic that prosecutors would turn to virtual interviews, offices from California to New York have begun to embrace the practice, using Zoom, Skype and sometimes even FaceTime to question people about a potential crime.
While some are reserving virtual interviews for white-collar cases that are particularly time-sensitive, perhaps involving an ongoing threat, others -- such as the Manhattan district attorney's office -- are using it with cases "across the board," said Karen Friedman Agnifilo, the office's chief assistant district attorney. They include cases of homicide, sexual assault, domestic violence, attempted murder and robbery.
Agnifilo said she alone has conducted a dozen such interviews in recent weeks.
"These are extraordinary times and we have to take extraordinary measures," she said. "No one views this as a permanent change. But we're doing the best we can do without putting lives in danger. There's so many logistical hurdles right now to doing a face-to-face interview."
The virtual interviews come with their own sets of hurdles, for both prosecutors and defense attorneys.
"One major issue with virtual interviews is that it is difficult to read facial expressions, variations in voice and other body language that often helps the questioner assess credibility and what areas to focus on or to further explore," said Carrie Cohen, a former federal prosecutor who is now a criminal defense attorney at Morrison & Foerster LLP.
Across a video chat, it can be harder to tell whether someone's voice is wavering, see if they're fiddling their hands or determine if they are breathing heavily.
Another issue, Cohen pointed out, are technical hiccups that might lead a witness to offer more information than he or she might otherwise. Cohen said she reminds clients that "pauses and silence are to be expected and that when the video freezes, as it almost always does, they should not attempt to fill that void with continued explanations or restate any answers provided."
In early April, two lawyers at the Manhattan firm Lankler Siffert & Wohl LLP published recommendations for participating in the new trend toward videoconference interviews, which they described as "likely to be awkward and difficult to navigate."
The lawyers, Jillian Berman and Lise Rahdert, urged attorneys to make advance requests for documents that prosecutors might ask their clients about, pre-schedule breaks to be able to consult with their clients "without sending signals to the prosecutors," and talk in advance about whether someone's children might disrupt the proceedings.
The pair cautioned that "the very real risk" of a videoconference interview is that because the attorney is physically separated from both his or her client and from prosecutors, "the defense lawyer is constrained by the technology to act more like a spectator than a lawyer."
That sentiment was echoed by Todd Blanche, a former federal prosecutor-turned-criminal defense lawyer who represents Igor Fruman, one of the two Soviet-born associates of Rudy Giuliani charged with federal campaign finance violations. (Fruman has pleaded not guilty.)
"I think conceptually, for a white-collar lawyer, the idea of doing a Webex interview where your client isn't sitting next to you is almost malpractice, because the whole reason for your existence is to interrupt or consult," he said.
Particularly in non-white-collar cases, there are also physical safety concerns. In domestic violence cases, for example, it may not be wise for someone to talk to prosecutors from their home if they are quarantined with their abuser, said Agnifilo, of the Manhattan district attorney's office. In those situations, she said, "we try to get them to a safe place, like a police precinct," in order for them to conduct the video chat.
Similar issues arise with other types of violent crime cases. "One of the things that we talk about with our prosecutors is, be mindful of the fact that you don't know who else is listening" to your video conference, Agnifilo said. "You don't want to put anyone's safety in jeopardy."
In addition, she said: "Some crimes are so traumatic that some people don't feel comfortable speaking to a total stranger about it, and the video just adds another layer to that."
There is also the possibility that remote interview sessions could be surreptitiously recorded by a witness or someone in their household, a danger that many said there is virtually no way to prevent aside from the honor system and the threat of being charged with a crime if they are caught.
And there may be safety concerns of a cyber nature as well. Because the US Department of Justice hasn't instructed federal prosecutors' offices to use any specific form of video chat, according to people familiar with the matter, it is up to each office -- and sometimes each prosecutor -- to determine what platform to use. Security concerns have arisen about some platforms, particularly Zoom, which has been criticized over privacy and security issues.
A spokesman for the Justice Department said it has given guidance on the subject but refused to elaborate, citing security concerns.
And while there are pitfalls for both sides, there are certain advantages, too. For prosecutors, they can speak to people while events are fresh in their mind, rather than waiting perhaps months until the pandemic is over. And for witnesses, they could earn credit with a prosecutor for helping advance an investigation, particularly during a challenging time.
Or, as Blanche posited, the unusual circumstances of a virtual interview could potentially be used in the future by an attorney to try to walk back or get leeway on certain statements their client made during the process. Blanche said he envisions attorneys questioning the use of the statements made during a remote interview.
"There's going to be a little more give," he predicted, "because of the fact that you were kind of handcuffed."