At the beginning of the pandemic, courts—like everything else—were forced to shutter and come up with a plan on how to operate through and after the crisis. But as we know: "Justice delayed is justice denied." For defendants sitting behind bars awaiting justice, significant constitutional rights were and are at stake. Even those who were released pretrial have unresolved charges pending against them. Victims, too, feel the impact of not seeing justice done.
This article will review how courts responded to the pandemic and how their decisions impacted criminal defendants and their constitutional rights.
Even during emergencies, courts must generally continue their operation to some extent. In addition to pending criminal and civil cases, courts need to hear legal issues that arise as part of the public health emergency.
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.
Over the course of the pandemic, judges issued thousands of emergency orders. Initially, these orders applied at the state level and some still do. Many states eventually placed most decision-making authority at the local level so judges could respond to surges and health concerns affecting their immediate community.
During a public health emergency, the courts need to balance the constitutional rights of defendants with protecting the health of judges, court staff, attorneys, and jurors. Court operations evolved throughout the pandemic but generally followed similar paths.
At the start of the pandemic, many courts prioritized critical cases where immediate constitutional rights or individual safety were at stake. Examples of critical cases might include hearing initial criminal matters, such as arraignment and bail hearings, as well as restraining order requests to protect victims. Court hearings in these critical cases were initially heard remotely and, in rare instances, permitted in person. For instance, an in-custody defendant might have appeared remotely from a jail conference room. Because criminal jury trials could not be heard remotely, most jury trials were suspended.
The courts—like many of us—had a steep learning curve when it came to remote justice. But as the pandemic wore on, virtual justice quickly became part of the new normal rather than a quick fix. Judges amended court rules to allow more virtual hearings and started working through a backlog of hearings. Courts also started using virtual hearings for grand juries and jury selections as they began planning how to resume in-person jury trials. Many courts rearranged courtrooms to allow for social distancing, installed transparent barriers, and updated ventilation systems in preparation to reopen to the public.
Once the vaccinations rolled out and COVID-19 cases began to decline, many courts started to open back up at varying levels. Jury trials resumed in many places, as did more in-person proceedings. Remote hearings were still used and encouraged for those hearings where a defendant did not need to be present or consented to a remote hearing (not for jury trials though). (Many civil cases remained virtual.)
While many courts opened back up, the surge in cases due to the delta variant upended some courts' reopening plans. Some responded by temporarily closing, while others responded by reinstating mask mandates and hearing only a limited number of essential cases. Most courts are continuously adjusting to COVID-19 numbers in their area.
Even with courts reopening, the backlog of criminal hearings and trials is enormous. Some courts estimate it could take months or even years to get through these backlogs. Courts and prosecutors are being forced to prioritize cases and trials. Some prosecution offices are dropping low-level cases or those that don't involve a victim, so they can prioritize scarce resources for criminal cases involving violent offenses.
For criminal defendants, the pandemic put many of their constitutional rights on hold. 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, questioned, and impaneled.
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.
Throughout the pandemic, courts worked to protect defendants' constitutional rights by prioritizing cases, amending court rules to allow justice to continue, and working to safely restart jury trials. But defendants still faced many hardships. Some ended up in jail longer. Some had a difficult time preparing their defense with an attorney they had never met. Others hung in limbo never knowing when their hearing or trial would be heard.
As courts regain a semblance of normalcy, criminal cases and hearings are making their way through the system. As that happens, we may start to see challenges from defendants alleging violations of their constitutional rights during the pandemic and as a result of the backlog of cases.
Below are some of the constitutional challenges we may see in the months and years ahead.
Probably the most obvious constitutional issue at hand is a defendant's Sixth Amendment right to a speedy trial.
Many state governors and chief justices initially and throughout the pandemic used their emergency powers to suspend speedy trial deadlines. Defendants may challenge these suspensions and extensions as a violation of their speedy trial rights. While the occurrence of a public health emergency likely weighs in favor of justifying these suspensions, the courts must also consider the length of the delay and any resulting prejudice to a defendant. A speedy-trial violation can result in the case being tossed out.
Plus, as suspensions and extensions of speedy trial deadlines come to an end, courts and prosecutors anticipate a surge of speedy trial demands, which requires cases to go to trial usually in a matter of days or weeks. Defendants who may have waived their right to a speedy trial in the past (to bolster their defense) might invoke their right to put pressure on prosecutors to drop charges or offer better plea deals.
Criminal defendants also have the right to effective assistance of counsel in their defense. Generally, a criminal defendant meets one-on-one with counsel to prepare for trial and can consult with counsel during court hearings and trial. At the beginning of the pandemic, counsel couldn't meet with clients. And now with social distancing and masking restrictions in place, both defendants and counsel have expressed frustrations of not being able to effectively communicate during court proceedings. We could see defendants appealing their cases based on ineffective assistance of counsel.
Defendants also have a right to have their case decided by an impartial jury. Due to prohibitions and concerns regarding large public gatherings, some courts implemented virtual jury selection. Conducting jury selection remotely or even in person with masks on can make it difficult to assess a potential juror's credibilty. Defendants might argue these restraints violate their right to an impartial jury.
Courts also ended up with more limited jury pools because, among other factors, essential workers couldn't leave their jobs, caretakers couldn't leave dependents, and many individuals have pre-existing health conditions. A defendant might argue that the jury did not represent a fair cross-section of the community.
Known as the Confrontation Clause, this constitutional right assures a defendant the right to face and confront their accusers. In most instances, this means cross-examination takes place face-to-face, not over video or behind a mask and plexiglass. Most courts placed criminal trials on hold to protect this right, but COVID-19 safety precautions (such as requiring masks or barriers) could possibly be found to infringe on this right as trials move forward.
The full impact of the COVID-19 pandemic on the criminal justice system remains to be seen. Talk to a criminal defense attorney if you believe your constitutional rights were violated.
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. You can use Nolo's 50-state tracker to find out how your state's courts are responding.
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.
Victims should check the court or prosecutor's website and look for resources, such as victim advocates and victim services units.
Updated: October 6, 2021