As I write this, federal and state courts across the United States are continuing their daily business of, among other things, hearing and adjudicating disputes. Of course, that daily business includes accepting filings and trying cases, both civil and criminal. Focusing on jury trials, this article will present an overview of the right of public access and how it might be affected by the pandemic.
Case in point: I live in Bergen County, New Jersey. As reported in a local paper, the Hackensack News, the county saw its first “socially distant” criminal jury trial a short time ago. The jurors wore masks and were screened. And here is what happened during the trial:
The Superior Court in Hackensack livestreamed the proceedings during the week via Zoom but the court was unable to broadcast the state’s closing argument due to a technical glitch. No spectators were allowed inside the courtroom.
In other words, the public was denied its right under the First Amendment to monitor and engage in oversight of its courts. What does this mean?
Protective Orders vs. Sealing Orders.
We need to back up a bit to understand what the right of access is under different circumstances. There is a fundamental difference between protective orders, which can be issued on a showing of good cause, and sealing orders, which bar access to filings and, for our purposes, trials. The former requires at least a threshold showing of good cause and can be issued on consent. The latter requires a compelling interest. The formulation may vary among the courts, but the bottom line is that a sealing order is hard to get – and to keep when challenged. There was no sealing order issued in the Bergen County trial. However, as a direct result of the pandemic, the courtroom doors were closed to the public. Moreover, as an indirect result of the pandemic, the means chosen to afford access to the public failed. This led to a possible First Amendment violation.
Is There a Solution?
I would like to say that the pandemic will soon be a memory and that courts can return to in-person trials, nonjury or jury, as these were traditionally conducted with trial counsel pacing the courtroom and coming into close physical contact with other counsel, parties, and jurors. Unfortunately, those days are gone, at least for the foreseeable future. We will experience social distant seating for spectators and participants in the trial process. We will be masked. We will be separated by screens and partitions. Under these circumstances, to reasonably assure the integrity of the trial process and the safety of all its actors, remote access seems to be the way to go (unless one subscribes to a theory that letting a few people into a courtroom is sufficient “public” access). And there lies the rub: what if the technology fails? To avoid that – or to at least minimize the possibility of failure – courts will need robust virtual technology. That means adequate funding and competent personnel to manage and troubleshoot the technology.
As a possible harbinger of the future, look at the “Order Allowing Audio and Video Coverage of Trial” in State v. Chauvin Dist. Ct. File 27-CR-20-12646, etc. (Dist. Ct. 4th Jud. Dist., County of Hennepin: Nov. 4, 2020), the criminal jury trial arising out of the death of George Floyd in Minneapolis, Minnesota. The order establishes conditions under which the trial may be “recorded, broadcast, and livestreamed.”
We will likely see variations of this order, and its conditions, from now on. For example, see "judiciary Authorizes Video/Audio Access During COVID-19 Pandemic” (United States Courts: Mar. 31, 2020).