The coronavirus pandemic has led to the implementation of stay at home orders and social distancing rules that have impacted all aspects of life, including how the court system functions. In order to contain the spread of the virus, many courts have limited their operations to only the most essential matters. Many criminal proceedings fall into the category of essential hearings, particularly given the dangers of keeping people in custody during the COVID-19 pandemic. In light of the need to keep criminal dockets moving while also protecting the health of defendants, attorneys, court staff, and members of the public, many criminal trial courts have been authorized to expand their use of remote video or telephonic proceedings. While this avenue offers defendants and courts a means of resolving many matters that may otherwise be indefinitely delayed due to coronavirus concerns, using remote technology to conduct criminal court hearings carries potential disadvantages for defendants, and may arguably interfere with certain constitutional rights. In addition, remote technology thus far does not seem to have provided a workable method of alleviating the delays that most criminal jury trials are currently subject to, though this may be a possibility for the future.
Laws Governing Remote Criminal Proceedings
Prior to the coronavirus outbreak, video and telephonic hearings in most jurisdictions were allowed in only certain criminal proceedings, such as arraignments and bail hearings, and only with consent from the defendant. In response to COVID-19 concerns, the federal as well as state governments have taken steps to relax these rules in a manner that minimizes in-person proceedings.
At the federal level, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act in March 2020, which allowed the Judicial Conference of the United States to give federal judges expanded authority during the coronavirus crisis to use remote proceedings in a wider variety of pretrial and post-conviction criminal matters, including detention hearings, waivers of indictment, and pleas and sentencing in misdemeanor cases. Telephonic and video hearings can also be used for pleas and sentencing in felony cases if a judge determines that holding an in-person proceeding would significantly compromise public health and safety, and that additional delays in the case would be detrimental to the interests of justice. Importantly, the requirement that defendants consent to any sort of remote proceeding has remained intact. Additionally, the rules that usually ban the broadcasting of most federal proceedings are being relaxed in order to allow for public access that comports with social distancing rules. To help accomplish this expansion, the CARES Act allocated $6 million to federal courts to use for pandemic-related expenses including increasing their technological capabilities with regard to conducting hearings by video and phone.
Many state courts have similarly been utilizing remote technology for criminal matters to a greater degree in order to limit in-person proceedings in light of the coronavirus crisis. For example, the California Judicial Branch has promulgated temporary rules permitting consenting defendants to appear by video or telephone in the vast majority of criminal pretrial proceedings during the state of emergency. Many jurisdictions have also implemented systems for broadcasting proceedings over YouTube in order to make them publicly accessible. Additionally, the CARES Act allocated $150 billion to state and local governments, and some of those funds are dedicated to law enforcement and technology for justice information sharing, which should serve to support efforts to expand remote hearings in criminal courts.
Constitutional and Other Concerns
While increasing the use of video and telephonic proceedings in criminal cases can help to protect defendants, court staff, lawyers, and members of the public from the risk of exposure to COVID-19 in court, it also carries the potential for some constitutional and practical downsides. For example, conducting critical criminal court matters remotely may interfere with a defendant’s constitutional right to be present, right to confront witnesses, and the ability to communicate privately with counsel. Some defendants may feel that appearing remotely diminishes their ability to advocate for themselves, make a more tangible connection with factfinders, and be treated fairly. Further, even if a defendant consents to a remote hearing, questions may be raised regarding the circumstances under which that consent was given, especially if the defendant consented in an effort to get out of custody due to the dangerous conditions associated with being incarcerated during the coronavirus outbreak.
Depending on where a court is located, some defendants may also be subject to limited access to video proceedings due to a lack of network capabilities or bandwidth. Finally, as long as social distancing policies remain in effect, most criminal jury trials continue to be indefinitely delayed, and so far remote technology does not seem to have been utilized to resolve this issue.
