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April 05, 2021 Practice Points

The Criminal Trial and COVID-19: Continuing Challenges as Courts Begin to Open Up

In the coming months, criminal lawyers likely will be practicing in courtrooms that look very different from the pre-pandemic days.

By Jane Shvets and Kate Witteman

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When the COVID-19 pandemic spurred lockdowns across the United States, almost every aspect of public life came to a halt. Court procedure—especially in the criminal realm—was no exception. When Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act in March 2020, it empowered federal judges to hold remote proceedings for criminal matters, including detention hearings, waivers of indictment, and pleas and sentencing in misdemeanor cases. It also allocated $6 million for technology upgrades in federal courts to facilitate remote hearings and video and telephonic conferences.

State courts have likewise largely transitioned to functioning remotely, particularly in the more populous states. For example, as early as March 7, 2020, New York Governor Andrew M. Cuomo gave state courts the discretion to waive the physical appearance of a criminal defendant except at hearings and trials. A number of governors suspended the speedy-trial provision, a move that commentators anticipate will lead to a wave of appeals once courts resume more regular functioning.

As federal and state-court systems have confronted longer-than-expected lockdowns, they have had to embrace new realities with respect to empaneling juries, handling witness testimony, and redesigning the physical spaces in courthouses. The strategies they adopted are being put to the test as COVID-19 restrictions ease alongside wider vaccine distribution.

One of the toughest barriers to criminal procedure during the pandemic was and remains empaneling juries for trials. Currently, most states do not have statewide orders prohibiting jury trials, and many major population centers are beginning to invite jurors back into courtrooms. For example, on March 22, 2021, New York Chief Judge Janet DiFiore announced that seven criminal trials would begin in New York City that week. That same day, 56 jurors—less than 10 percent of those summoned—appeared in Chicago’s criminal courthouse to serve as potential jurors in the city’s first criminal trial in over a year. Chicago’s announced precautions included the requirement that potential jurors fill out a health questionnaire and submit to a temperature check upon arrival at the courthouse. But even strong safeguards do not eliminate all risk of exposure to the virus, and one federal trial in Manhattan encountered what some might consider an inevitable obstacle: a juror tested positive for COVID-19, news that was announced on the fourth day of a multi-week trial. In that case, the trial continued with an alternate.

Because of the heightened risk posed by jury service—sitting indoors among other people for a prolonged time—New York City Mayor Bill de Blasio proposed that jury summonses be accompanied by appointments for COVID-19 vaccines, indicating that potential jurors should be one of the priority groups for the vaccine rollout. This policy has not yet been adopted in New York and it is unclear whether it will gain traction elsewhere. What is clear, however, is that courts are beginning to ask jurors to report for service again. While criminal litigators should expect fewer people to show up to courthouses for selection, as was the case in Chicago, they should be prepared for a jury empaneling processes that employ masking and social-distancing requirements.

Another likely challenge to criminal proceedings going forward will be the issue of witness testimony. The Constitution’s Confrontation Clause guarantees a criminal defendant a face-to-face meeting with witnesses appearing before a jury. Federal courts have adopted varying practices, including the use of two-way, closed-circuit television, for video testimony where a witness is too ill to appear in person, or is physically prevented from coming to the United States, among other reasons. Most courts to consider whether video testimony is acceptable in criminal trials due to the dangers posed by COVID-19 have determined that a criminal defendant’s confrontation rights should not be overridden by COVID-19 concerns. One such example is the finding by the U.S. District Court for the District of Kansas that it was not strictly necessary (the legal standard most courts employ when deciding whether to allow video testimony) for two witnesses from New York, who would have had to fly to Kansas and be subject to a two-week quarantine, to testify by video.

If a witness is successfully brought into court for in-person testimony, COVID-19 concerns remain. Lawmakers and practitioners have expressed concern that, even if a witness testifies in person, the impact of the testimony would not be the same if the witness is required to wear a mask while testifying. In February 2021, lawmakers in Massachusetts debated whether a witness should remove a mask during testimony, so that jurors could better assess the witness’s credibility.

Even courts within the same state have taken different approaches to this issue. A public defender in Portland, Oregon, successfully argued that witnesses should be required to remove face coverings for their testimony, while an attorney in Ashland, Oregon reported that witnesses and jurors were permitted to keep masks on during all proceedings. To align a defendant’s confrontation rights with public safety, some courts have been encouraging the use of transparent face masks and face shields by witnesses.

Apart from facing procedural challenges, in the coming months, criminal lawyers likely will be practicing in courtrooms that look very different from the pre-pandemic days. Some courts have leased larger spaces to maintain social distancing, while others have made changes to existing courtrooms by erecting plexiglass barriers, removing every other chair from jury boxes, and installing hand-sanitizer stations throughout. Courts will have to find manageable ways to convene proceedings to begin addressing the significant backlog of cases that accumulated over the past year. Whether current practices are sufficient to maintain public safety will become clearer as courts settle into the new reality.

Jane Shvets is a partner at Debevoise & Plimpton in London, United Kingdom, and Kate Witteman is a law clerk with the firm’s New York, New York, office.

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