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

With restaurants, schools, venues, and even legislatures shuttering their doors to help slow the spread of the Coronavirus (COVID-19), do courts close too?

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, courts were back up and running in a matter of weeks. The impact of the Coronavirus could last much longer and span the entire nation. Courts could see increased caseloads (if individuals seek judicial relief from emergency government orders) in the face of judge, staff, and juror shortages due to quarantines, personal illnesses, and the need to care for others.

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 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.

Balancing Act: Public Health, Rights of Criminal Defendants, Rights of Victims

During a public health emergency, courts must balance the constitutional rights of defendants with protecting the health of judges, court staff, attorneys, and jurors. Victims also have an important stake in the criminal justice process—they have certain legal rights to participate in criminal proceedings and see speedy justice.

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.

Court Tactics to Protect Constitutional Rights

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

  • utilizing video-conferencing for arraignments and bail hearings
  • expanding jury pools for criminal trials facing imminent speedy trial deadlines
  • extending deadlines for criminal proceedings, and
  • suspending and postponing trials that are not facing constitutional deadlines.

Some courts are finishing criminal cases already in progress. But even this has proved difficult as jurors call in sick and might be motivated to decide cases quickly—which calls into question whether defendants are receiving fair trials. Other courts have suspended all criminal trials, even those in progress.

Defense attorneys are also seeking release of defendants being held in jails to protect their health, especially for nonviolent, pretrial defendants and vulnerable individuals (those older than 60 and those with chronic health conditions).

Will a State of Emergency Suspend Constitutional Rights?

As mayors and governors declare states of emergencies, the question remains on how these declarations impact the criminal justice process. A declaration of an emergency allows a governing body to issue orders to protect life and property and to suspend laws or regulations that might hinder emergency efforts. During emergencies, governments may impose reasonable restrictions on personal liberties. But emergency powers are not absolute and not all rights are checked at the door.

In the aftermath of 9/11, the New York Governor declared a state of emergency. The executive order called for the temporary suspension of speedy trial provisions as necessary to cope with disaster. After the order expired and trials continued to be delayed, judges evaluated provisions in the criminal rules of procedures allowing delays for "exceptional circumstances" (N.Y. Crim Proc. Law § 30.30). While certain allowances were made on delays where courthouses were closed or police officers were not available to testify, courts were cautious not to allow blanket exceptions to speedy trial requirements—rather evaluating circumstances on a case-by-case basis. In some cases, charges were dropped for speedy trial violations.

The full extent of the Coronavirus on the criminal justice system remains to be seen. Undoubtedly, some criminal and civil trials will face delays. It’s unclear how exactly courts will decide on factors relating to constitutional rights, but we could see action by administrative court orders or executive orders or on a case-by-case basis pursuant to court rules and case law.

Check Your Court Website for Resources

If you have any type of court date, contact your attorney and check your local court website for emergency orders. 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.

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