Virtual Criminal Court Appearances During and After COVID-19

Reality and justice changed quickly in 2020. Will virtual justice remain the new normal?

By , Attorney

At the start of the COVID-19 pandemic, courts across the country suspended jury trials, extended filing and hearing deadlines, and restricted public access to courthouses. These emergency measures helped to cut down on the number of individuals present in courthouses and reduce the spread of the coronavirus. But justice could only wait so long, requiring the justice system to adapt—quickly.

Forging Ahead With Technology in the Courts

To keep the wheels of justice turning, courts initially implemented videoconferencing tools for virtual court appearances, pretrial hearings, and oral arguments. Virtual court appearances were not new to courts. Over the years, some states and judges had embraced the technology, while others fought it. But reality has changed, and courts are changing with it.

Virtual Access to Justice: Responding to the Initial Crisis

Virtual court hearings offered a crucial lifeline to the criminal justice system as the pandemic nearly ground the system to a halt at its start. As deadlines for pretrial hearings were extended, defendants sat in jail awaiting their first appearance or bail hearing. Most courts prioritized criminal hearings where a defendant was in custody, but in-person hearings were mostly suspended.

Providing virtual bail and other pretrial hearings placed defendants in front of judges—working to protect constitutional rights and help reduce jail populations where COVID-19 was rapidly spreading. Victims and witnesses under shelter-in-place orders were able to participate remotely, as well, by providing input through remote access or by video. Judges could also hear "ex parte" (emergency) petitions for victim protection orders via video or teleconferencing.

It wasn't all smooth sailing, though. The quick rollout of technology posed challenges for court systems. Problems range from hiccups with audio and visual technology to financial costs and cybersecurity concerns. And even before the crisis, opposition to remote court appearances, especially in criminal cases, was common. Opponents argue that remote appearances can deprive defendants of their constitutional rights to confront witnesses, get effective assistance of counsel, and receive a fair trial.

How Remote Justice Adapted in Criminal Cases

Before 2020 and COVID-19, a remote appearance typically involved a video conference with the judge and prosecutor in a courtroom and the defendant and defense attorney in a jail conference room. Jump ahead to April 2020, with social distancing measures in place, and you had a Florida prosecutor appearing remotely from her back patio, the lead detective videoconferencing from his car, and the defendant appearing from the jail conference room. Not all remote hearings looked like this, but clearly, the justice system was working in new ways.

In-Person Criminal Proceedings

When shelter-in-place orders started expiring, a few courts resumed certain in-person court hearings (primarily in states with lower infection rates). This trend—returning to a new normal—continued to expand across the country once the vaccines were rolled out. Courts began to prioritize which criminal hearings would be heard in person. Jury trials largely remained on hold because they require more than a dozen people to be present in a courtroom. A winter surge of COVID-19 cases in late 2020 and early 2021 suspended progress in some places, but most courts resumed their re-opening plans in mid-2021.

In-Person Criminal Jury Trials

As the surge waned, courts forged ahead with resuming in-person jury trials. Certain initial proceedings, such as the selection of potential jurors (called "voir dire"), could be continued remotely if needed. Courthouses updated ventilation systems, installed plexiglass barriers, and rearranged courtrooms to accommodate social distancing. To keep courthouse numbers down, many civil hearings and certain criminal matters were still heard remotely.

Hybrid Approach: In-Person and Remote Hearings

As vaccination rates increased, courthouses began resuming more in-person hearings and services. Many courts brought back most or all of their judges and staff, and most decisions shifted from the state to the local level to accommodate areas' differing needs. Even in fully staffed courthouses, the use of remote technology continues—and thankfully, has much improved in a short amount of time.

Virtual Access to Criminal Justice: Continuing After COVID-19

The courts are really no different than other businesses. They need to implement flexible systems that can adjust to an ever-changing environment. Remote justice has become the key to this flexibility and keeping the wheels of justice turning. It's become the new normal for many facets of life and likely will remain a part of the criminal justice system post-pandemic.

Before the pandemic shut down courthouses, the judicial system was evaluating the potential benefits of remote appearances. In fact, a report issued by the State Justice Institute in 2017 noted that remote appearances "reduce the number of persons coming to court ... going through security screening … and filling small courtrooms." Other key benefits to remote appearances include reducing travel time and costs for everyone involved, from attorneys and witnesses to victims and their families.

For certain court proceedings, like criminal jury trials, opposition to virtual court appearances likely won't disappear. Jurors need to listen to witness testimony and evaluate evidence. This crucial function isn't as adaptable to remote technology as say a motion hearing involving two lawyers and one judge.