How Is the Coronavirus (COVID-19) Impacting Criminal Cases?

During a public health emergency, we see action and coordination of various local, state, and national resources. But what happens to court operations? During a public health crisis, do courts need to maintain operations? Do trials continue?

Court Operations During Domestic Emergencies

Court systems have weathered various domestic emergencies. Storms like Hurricane Katrina and Superstorm Sandy temporarily shut down courthouses. And after 9/11, some New York trials were delayed due to diversion of resources and concerns of a second wave of terrorist attacks.

As horrible as these emergencies were, local courts were back up and running in a matter of weeks. The impact of the coronavirus outbreak spans the entire nation and will last much longer.

Court Emergency Response Plans

Even during emergencies, courts must generally continue their operation to some extent. In addition to pending cases, courts need to hear legal issues that arise as part of the public health emergency.

In many states, court rules or statutes give the state’s highest court or its chief justice broad discretion to manage court operations during a state of emergency. (For example, see Cal. Gov't Code §§ 68115 et seq.; Va. Code § 17.1-330.)

While each state’s laws differ, generally, the chief justice can issue emergency orders or create temporary rules to administer justice. Examples include suspending jury trials, ordering extensions of time limits to file documents or conduct hearings, limiting hours of court operations, moving court locations, using technology to take testimony and conduct hearings, and changing jury management rules. But how do these orders affect individuals’ constitutional rights?

Constitutional Rights of Criminal Defendants

For criminal defendants, immediate constitutional rights are at stake—most notably, their loss of liberty. All criminal defendants are innocent until proven guilty. They have a constitutional right to a fair trial—a speedy trial held before an impartial jury. Criminal defendants also have the right to a public trial and the right to confront witnesses and their accusers. They have the right to counsel.

To ensure these rights are met, court rules specify time periods for holding certain hearings—like first appearances and bail hearings. Witnesses must testify in court and under oath. Jurors are summoned. Basically, every step of the criminal process from arrest through appeals is guided by strict rules and procedures. As these steps get delayed, a defendant's constitutional rights are delayed.

Balancing Act: Public Health and Rights of Criminal Defendants

During a public health emergency, courts must balance the constitutional rights of defendants with protecting the health of judges, court staff, attorneys, and jurors.

Critical Cases and Essential Functions

Similar to state agencies, some courts have public health emergency response and operation plans. These plans generally outline critical and essential functions of the court and prioritize caseloads. Critical cases often reflect those where immediate constitutional rights or individual safety are at stake. Examples of critical cases might include:

• in-custody criminal and juvenile cases (where defendants are being held in jail)
• emergency protective orders (such as in domestic violence and child abuse cases)
• bail hearings, and
• contested quarantine and isolation orders.

The emergency plans generally direct courts to hear critical cases first and delay or suspend hearings in other cases, such as civil actions or contesting a speeding ticket. Many courts are delaying jury trials to minimize health risks to jurors and families.

Court Tactics for Critical Cases

For critical cases, courts around the country are implementing various tactics. Some include:

• utilizing videoconferencing for hearings
• allowing virtual meetings with criminal justice partners (law enforcement, probation)
• waiving certain appearance requirements
• extending filing or hearing deadlines, and
• suspending and postponing trials that are not facing constitutional deadlines.

Some courts finished criminal cases that were in progress when governors started issuing shelter-in-place orders. Others suspended all criminal trials, even those in progress.

Virtual Court Hearings

As the pandemic shuttered many courthouses, the judicial system turned to technology to keep the wheels of justice turning. Videoconferencing of court hearings is not new, but its use has been limited in the past. Now court systems are rolling out remote access tools at an incredible pace. Using videoconferencing platforms (such as Zoom or Skype), judges can hear first appearances, bail hearings, motions, oral arguments, and sometimes sentencing hearings, with the prosecutor, defense attorney, and defendant all in separate locations. (Jury trials have not gone virtual.)

Will a State of Emergency Suspend Constitutional Rights?

Many state governors and chief justices used their emergency powers to suspend deadlines for trials and other court proceedings. For example, the New York Governor issued an executive order temporarily tolling (suspending) any time limits relating to criminal procedure. California’s Chief Justice extended speedy trial deadlines for 60 days. Federal court judges issued similar extensions. (Cal. Jud. Council Order (Mar. 23, 2020); N.Y. Exec. Order No. 202.8 (Mar. 20, 2020); Standing Order M10-468 (S.D.N.Y. Mar. 13, 2020).)

Of course, delaying a trial impacts a defendant’s constitutional right to a speedy and public trial. As governors and courts continue to declare and extend emergency orders—and thereby slow down criminal trials and hearings—(potentially innocent) defendants can end up in jail longer and have a harder time preparing a defense with their counsel. On the flipside, the delays “may actually work in the favor of defense,” observes Luis Emilio Carlo, a private criminal defense attorney in Washington. He expects to see a large backlog of cases once courts reopen. According to Carlo, because of big caseloads, the prosecution might not be able to try every case, which could result in better plea deals for defendants.

Check Your Court Website for Resources

The full impact of the coronavirus outbreak on the criminal justice system remains to be seen. Initially, many courts limited or suspended in-person hearings. But as states and communities reopen, courts are following suit. You can use Nolo's 50-state tracker to find out how your state's courts are responding.

If you have any type of court date, contact your attorney and check your local court website for updated emergency orders and any virtual court appearance options. If you’ve been called to act as a juror, check your local court website for information—you might need to contact the jury management office. Defendants should consult with their attorneys. Victims should check the court or prosecutor’s website and look for resources, such as victim advocates and victim services units.

Updated: June 24, 2020.