Virtual Criminal Court Appearances in the Time of the Coronavirus

In the midst of the pandemic, courts are embracing videoconferencing and other remote appearance tools. This development could represent a turning point for the justice system.

In response to the coronavirus pandemic, courts across the country have suspended jury trials, extended filing and hearing deadlines, and restricted public access to courthouses. These emergency measures help cut down on the number of individuals present in courthouses to reduce the spread of the coronavirus. But courthouses could remain closed for some time, which begs the question: How long can justice wait?

Forging Ahead With Technology

To keep the wheels of justice turning, courts are implementing—at an amazing pace—videoconferencing tools for virtual court appearances, pretrial hearings, and oral arguments. Virtual court appearances are 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.

Indeed, many courts have forged ahead to keep justice moving. Courts in Alaska, Florida, New York, North Dakota, and Texas are already conducting remote hearings. And California issued a statewide emergency court rule allowing courts to require that judicial proceedings be conducted remotely, including criminal proceedings (if the defendant agrees). To find out what's happening in your state, check out Nolo's 50-state tracker with links to each state's judicial COVID-19 response page.

Even the Supreme Court of the United States announced it will start conducting oral arguments remotely in May. The Court will hear arguments by telephone conference. You can listen to oral arguments live on C-Span, Fox News, and the Associated Press.

An organization of court administrators and chief judges (Conference of Chief Justices and Conference of State Court Administrators) urges courts to embrace video technology, not only because it offers access to justice during the coronavirus pandemic but also “because it will be around long after the pandemic ends.

What Does Remote Justice Look Like?

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 have 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 look like this, but clearly, a lot has changed.

In fact, anyone interested in observing can search and stream court proceedings using YouTube (check out the YouTube Channel Directory for the Texas Judicial Branch). The New York Virtual Court System allows individuals to appear remotely via Skype. And North Dakota Supreme Court justices heard oral arguments online in March. The National Center for State Courts even developed a pandemic resource on linking a YouTube account to a Zoom account so courts can make hearings available to the public.

Virtual Access to Justice: Responding to the Crisis

Virtual court hearings offer a crucial lifeline to the criminal justice system. As deadlines for pretrial hearings continue to be extended, defendants sit in jail awaiting their first appearance or bail hearing. Most courts have prioritized criminal hearings where a defendant is in custody, but in-person hearings are mostly suspended.

Providing virtual bail and other pretrial hearings places defendants in front of judges—protecting their constitutional rights and helping reduce jail populations where the coronavirus easily spreads. Victims and witnesses under shelter-in-place orders can participate remotely, as well, by providing input through remote access or by video. Judges can also hear "ex parte" (emergency) petitions for victim protection orders via video or teleconferencing.

It hasn’t all been easy, though. The quick rollout of technology poses 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.

Virtual Access to Justice: Continuing After COVID-19?

While some courts might have been slow to this point to embrace technology, tech is now being thrust upon the justice system. Will virtual court appearance outlive the crisis? Some believe this crisis could push courts to accept (and maybe even embrace) virtual courts as part of the new normal.

Before the coronavirus 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.

A key issue that remains is how to resume jury trials. Most states have suspended jury trials, and the virtual technology push might not change that. Jury trials present an opportunity for a cross-section of society to come together and assess the credibility of witness testimony and evidence. Some argue virtual jury trials would allow jurors to focus strictly on testimony and evidence and not be influenced by other factors. Others contend that physical presence is essential to make these crucial, credibility assessments and protect constitutional rights.

Moving Forward

The limitations of virtual court appearances and hiccups with technology have not stopped the courts. To keep the justice system moving, courts are moving forward with videoconferencing and other remote access tools. Judges and criminal justice partners are adapting, court rules are changing, and challenges are being faced head on. Perhaps the new normal will be a new beginning.

Updated: May 6, 2020.

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