Coronavirus (COVID-19) is changing how the legal system works for lawyers, judges, defendants, and plaintiffs. On March 31, 2020, the Judicial Conference of the United States temporarily authorized video and teleconferencing for specified criminal cases and teleconferencing for civil cases due to the COVID-19 national emergency.
Under the Coronavirus Aid Relief and Economic Security Act (CARES Act), the Judicial Conference allowed chief district judges in certain criminal proceedings (with the defendant’s consent) to temporarily authorize video and teleconferencing as long as the national emergency lasts. Any video and teleconferencing must end 30 days after the end of the national emergency or, if earlier, the date on which the Judicial Conference determines the courts are no longer affected by COVID-19.
Introducing the Working Group Resource Guide
On May 22, 2020, the Judicial Council of California put in motion the Pandemic Continuity of Operations Working Group. The Working Group collects best practices from the California Judicial Branch, federal, state and local governments to design a plan the California Superior Courts can use to manage court operations during the COVID-19 crisis.
On June 3, 2020, the Pandemic Continuity of Operations Working Group released a 75-page resource guide for the courts. The guide provides information on various administrative changes that may be useful during the COVID-19 pandemic. The suggested areas of change include:
- Health screening for courthouse visitors and staff
- Plexiglass between staff and members of the public
- Reservation systems to avoid crowds and waiting for service in lines
- Social distancing rules for jurors both during jury selection and during trials
Courtrooms Impacted by COVID-19
On June 1, 2020, state courts across California were closed to the public through June 27, and criminal jury trials were deferred until July 15. The court also stayed the processing of appeals and evictions through July 14. Jury trials were suspended until July 29. As jury trials resume at the end of July, jurors must complete questionnaires remotely in advance. Small claims actions and emergency hearings take place remotely.
Courts Handled COVID-19 Changes In Different Ways
The federal court system also issued orders relating to COVID-19. Here are a few of the changes related to the pandemic:
- Supreme Court oral arguments were postponed. Some were delayed until May and will be conducted by a telephonic conference. The cases not rescheduled for May will be delayed until the new Supreme Court session in October 2020. The clerk’s office staff was substantially reduced, and all contact with the clerk’s office will be by phone or email.
- The various circuits of the U.S. Appeals Courts issued their own rules to address COVID-19. A few examples include:
- The Second Circuit Court sitting in New York City issued an order effective March 23, 2020, that all oral arguments would be heard by teleconferencing until the COVID-19 pandemic passes. It also ordered that the public without business before the court have no access to the building. Where possible, the filing of documents is by electronic filing.
- The Seventh Circuit sitting in Illinois ordered business conducted under emergency operations procedures so long as the health emergency lasts. Employees telework where possible. Those unable to telework are on administrative leave effective March 18, 2020.
- The Tenth Circuit sitting in Denver, Colorado closed on March 17, 2020, with judges and staff teleworking. It reopened on June 15, 2020 to the public with business before the court. The Tenth Circuit anticipates reopening for all business on July 1, 2020, including the filing of paper copies of court filings. Workers will return at 50% capacity in any particular area and when other social distancing measures are in place.
Different States Took Their Own Approach
U.S. District Courts, which serve individual states, made their own rules in reaction to the COVID-19 pandemic. For example:
- The California U.S. District Court, on March 30, 2020, ordered cases to be conducted by video conferencing and teleconferencing if video was not readily available. All felonies were delayed, and, where not possible to delay any further, the court hears felony cases by video/teleconference. On April 2, 2020, the court extended the emergency for up to one year. On April 15, 2020, the court extended emergency procedures another 30 days, including all grand jury proceedings. Beginning June 1, 2020, the court began to allow criminal proceedings in-person for defendants not in custody. The court required in-person appearances to consider the health and safety of all in the court complex.
- The Alaska District Court ordered effective May 27, 2020 that face coverings were to be worn by everyone over age two who requests access to or while in the public buildings. In addition, no one showing symptoms of COVID-19, or having had contact with anyone with COVID-19, or anyone required to quarantine by health authorities, will have access to the court buildings.
- Portland, Oregon courts in June 2020 became one of the first states in the country to begin hearing jury trials in-person. All states scheduled to begin jury trials face the balancing of the defendant’s right to a jury trial with protecting the health of those trial participants using social distancing protocols. In Portland, an attorney requested witnesses remove their masks while testifying. The judge granted the request.
- Charlotte, North Carolina courts began in-person court activity after three months of shutdown. The Western District Court of North Carolina is the only federal judicial court that sanitizes courtrooms before and after all courtroom activity. All trial participants must pass health screenings in the lobby. The court sanitizes the Bible after each witness swears the oath. There are no sidebars at the judicial bench; judges and lawyers talk over a new walkie-talkie system while noise pumps into the courtroom so no one else can hear the conversation.
- In Fort Wayne, Indiana, criminal trials are set to begin again on July 1, 2020. Witnesses will testify in the jury box. The jury will sit socially-distanced in the spectator section, where 80% of the seats taped off leaves little room for family members to watch. Scrupulous cleaning is the order with hand sanitizers and face masks on hand. Jurors older than 75 do not have to serve, and jurors 70-75 years of age may request not to serve. Jurors 60-69, and those with underlying health issues, may defer service for at least three months.
Opening and Closing Conditions
The Cares Act gave courts latitude to create contingencies for criminal cases. Contingency plans must not interfere with the defendant’s right to counsel nor the right to a speedy trial. In addition, the Act requires the defendant’s consent to video or teleconferencing in lieu of in-person trials.
Courts will face social distancing conundrums when reopening courthouses. Questions involve how to protect jurors, whether wearing masks impact jurors’ reactions to evidence, and whether a defendant wearing a mask risks looking guiltier than without a mask.
COVID-19 continues to change our court system into something unrecognizable from a few short months ago.