The COVID-19 pandemic resulted in courts shutting down in-person appearances. Courts then turned to virtual proceedings as it continued. In Michigan, for example, there are guidelines for trial courts, released during the COVID-19 pandemic, that say that criminal defendants are able to “waive the right to be physically present for a hearing and appear by video.” Furthermore, according to these guidelines, “if it appears that a witness is being coached by someone off-camera, the court may order them sua sponte to change the camera to show any other person who may be in the room with them” and then “take necessary and appropriate steps to assure witness testimony is without influence or distraction.” Guidelines or standards such as these may help courts that are concerned about facing such issues during virtual courtroom proceedings.
One such issue stemming from virtual hearings was recently highlighted in a Michigan case. For in-person appearances, everyone related to the trial or hearing is typically in one room – the courtroom. With virtual hearings, however, there remains the possibility that people attend from separate and varying locations. The screen only shows a small part of the location from which the person is attending the proceeding. And plenty can occur off camera. In the Michigan case, the defendant, facing assault charges stemming from an argument with his girlfriend, may have been trying to intimidate a witness against him; the defendant was also supposed to have no contact with the witness. The prosecutor noticed the witness kept looking off to the side when asked a question and that the defendant’s screen would go dark for a few seconds when this occurred. The police officers who arrived at the witness’s apartment discovered that the defendant and the witness were both attending the Zoom hearing from the witness’s apartment. This thus raised concerns that the defendant was trying to intimidate the witness.
There are also other considerations for courts considering virtual jury trials, including a defendant’s Sixth Amendment rights. Prior to the COVID-19 pandemic, the Supreme Court allowed a witness to testify by closed-circuit television (CCTV) over the defendant’s objections regarding his rights under the Confrontation Clause under the Sixth Amendment. According to the Confrontation Clause, “[i]n all criminal prosecutions, the accused shall enjoy the right to […] be confronted with the witnesses against him.” While the jury, judge, and defendant remained in the courtroom, the witness – a child abuse victim – testified from another room, using the one-way CCTV. This case highlighted that face-to-face confrontation at trial is a preference, not a requirement. Furthermore, according to the holding in that case a court may find that a defendant’s right under the Confrontation Clause at trial is “compromised by the use of a remote video procedure only upon a ‘case-specific finding’ that (1) the denial of physical confrontation ‘is necessary to further an important public policy,’ and (2) ‘the reliability of the testimony is otherwise assured.’” The question remains, though, whether this case applies to a completely virtual trial held during the COVID-19 pandemic.
Some courts have considered cases during the COVID-19 pandemic where defendants object to court proceedings pertaining to criminal trials due to their rights under the Confrontation Clause. In one case, the court allowed two-way testimony from a witness, who wanted to testify remotely due to his age, underlying health condition, the COVID-19 pandemic, and concern about travelling from Texas to New York to testify. In allowing the remote testimony, the court noted the important public policy in limiting the spread of COVID-19 and protecting at risk individuals from exposure to it. Additionally, the court noted that these procedures promoted the important public policy and assured the testimony’s reliability. The court also observed that the witness would offer material testimony, was unavailable to testify in-person given the circumstances, and that the witness’s videoconference testimony would further the interests of justice. As a result, the suggested procedure to be used, in combination with the specifics of this case, assured the court that allowing virtual testimony in this instance did not violate the defendant’s rights under the Confrontation Clause.
For a few cases, however, courts have been generally unwilling to allow witnesses to testify remotely, even during the COVID-19 pandemic. In these cases, the courts have found that there are other alternatives available that are preferable to the witness testifying remotely, particularly in light of the defendant’s rights under the Confrontation Clause. As a result, whether courts have allowed virtual testimony seems to be determined on a case-by-case basis, with courts looking at who will be testifying remotely, as well as whether there are other alternatives to that witness testifying remotely that will not impede the defendant’s rights under the Confrontation Clause.
Issues stemming from defendants’ Sixth Amendment Confrontation Clause rights can also be juxtaposed with their Sixth Amendment speedy trial rights. Delaying a trial due to the COVID-19 pandemic, or over concerns about a defendant’s rights under the Confrontation Clause, results in a longer trial that may not necessarily meet the requirements of a speedy trial. This then raises an issue: does the court delay the trial due to the importance of the Confrontation Clause, or does the court continue with the trial in a virtual or semi-virtual format, given the significance of the right to a speedy trial? And how do backlogs caused by the COVID-19 pandemic play into this decision? These Sixth Amendment rights may therefore prove at odds with one another as the COVID-19 pandemic continues.
Furthermore, some courts that are looking to resume in-person appearances may be facing other problems, such as getting enough jurors for jury trials. Courts that shut down in-person appearances due to the COVID-19 pandemic may already have a backlog, which could increase as a result of a shortage of jurors willing to show up for jury duty. According to a former federal judge and an executive director of the Berkeley Judicial Institute, potential jurors are now concerned for their safety in courthouses and/or while commuting there due to health risks that the COVID-19 pandemic poses, in addition to worries usually present about missing work.
Looking to the present and future of in-person jury trials, many judges are still considering whether to hold in-person jury trials at all, particularly as they weigh constitutional concerns. As judges express their concerns regarding continuing in-person proceedings in the future, four infectious disease experts responded to these concerns in a report in which they give suggestions to judges regarding re-opening their courtrooms. These recommendations included re-imagining the courtroom to accommodate social distancing guidelines, ensuring well-ventilated spaces in courthouses, wiping down exhibits and court documents after using them, and screening court visitors for symptoms.