Even before the coronavirus pandemic, courts across the U.S. struggled to keep up with their caseloads. Then COVID-19 forced America’s legal system to delay and suspend hearings, trials and other legal proceedings, piling more cases onto already substantial backlogs. Meanwhile, many people held in local jails awaiting criminal trials learned they will stay behind bars even longer.
In recent months, local courts have made a range of changes to allow some criminal and civil cases to move forward while also keeping courthouse employees and the public safe.
“In many courts this meant measures much like your grocery store: plexiglass partitions, socially distanced lines, lots of hand sanitizer,” Bridget Mary McCormack, chief justice of the Michigan Supreme Court, and David Freeman Engstrom, a professor at Stanford Law School, explain in an editorial for Bloomberg. “In a creative few it meant holding court outside on courthouse steps or in repurposed school gyms. Most important of all, many courts, long resistant to it, embraced proceedings by phone or videoconference.”
McCormack told Congress last summer that the pandemic had prompted more technological change within the Michigan justice system over the previous three months than it had experienced during the past three decades.
“This pandemic was not the disruption that any of us wanted, but it may be the disruption we needed to transform our judiciary into a more accessibly, transparent, efficient and customer-friendly branch of government,” she testified virtually during a meeting of the U.S. House Judiciary Subcommittee on Courts, Intellectual Property and the Internet.
As more U.S. courts introduce such changes — and some courts expand these initiatives — journalists need to understand how they will influence legal processes and affect criminal defendants’ civil rights. We asked experts at the National Center for State Courts, an independent research organization focused on the state judiciary, and the National Association of Criminal Defense Lawyers, an organization aimed at correcting flaws and inequities in the criminal justice system, what journalists should know and do when covering these issues.
Below are six tips based on their guidance and insights.
1. Investigate the changes local courts have made to protect public safety while allowing hearings, trials and other legal proceedings to take place. Report on how these changes have affected people accused of crimes, crime victims and victims’ families.
Journalists need to remember that court procedures amid the pandemic vary significantly from state to state and even from county to county, says Bill Raftery, a senior analyst with the National Center for State Courts. There are 3,500 court systems nationwide, and all must follow the orders and guidance issued by their own administrations, he says. They also must work within the limits of their technology.
Courts in some parts of the country — rural areas in particular — lack access to high-speed internet service, restricting their ability to hold remote hearings.
Remote hearings allow criminal defendants to appear by phone or video, and have become increasingly common and necessary during the COVID-19 crisis. While this change is beneficial in many ways — defendants, victims and victims’ families don’t have to travel, take lots of time off work or pay for parking or child care — not everyone can afford or has access to the technology needed to take advantage of it.
“This time last year — January, February — things like Zoom hearings were not even on the table in most court systems,” Raftery says. “Now you’re looking at a very different system than you would have, say, a year ago.”
While there is no national database tracking these changes, the National Center for State Courts has been monitoring which states mandate, encourage or allow virtual hearings. The center also has compiled reports focusing on specific states or parts of the country.
The center’s researchers have learned that remote hearings are encouraging criminal defendants to show up virtually for court in several states for which it has data. In Michigan, for instance, the failure-to-appear rate fell from 10.7% in April 2019 to 0.5% in April 2020. In some areas of North Dakota, appearance rates for criminal warrant hearings are almost 100%, compared with about 80% before the pandemic.
2. Examine how the pandemic has affected jury selection.
Most criminal courts are postponing trials or allowing a limited number to proceed during the coronavirus pandemic, says Paula L. Hannaford-Agor, director of the Center for Jury Studies, a project of the National Center for State Courts. In some places, courts have had difficulty getting residents to show up for jury duty during the pandemic — a problem legal experts have worried will impact jury composition. Defendants have the right to be tried by a jury selected from a jury pool that reflects the demographic characteristics of their communities.
But COVID-19 has hit some segments of the community harder than others.
“Certainly, there were big concerns about how that would disproportionately exclude elderly people and affect people of color,” Hannaford-Agor says. “What we are hearing from the field is that it varies dramatically” from location to location.
In some places, she says, courts have reported that 20% to 30% of jury pools are asking for a hardship exemption from jury service — a big increase over the approximately 9% to 10% that asked for it prior to the pandemic. “And some are not affected at all and, if anything, people are appearing [for jury duty] more than before the pandemic,” Hannaford-Agor says.
Research shows that the makeup of juries can influence their decisions. A study published in Women & Criminal Justice in 2016 finds that juries in North Carolina that had more women than men were much less likely to recommend a death sentence for defendants facing capital murder charges. A 2012 study of felony trials in Florida finds that when the jury pool contains at least one Black potential juror, conviction rates for Black and white defendants were nearly identical. When there were no potential Black jurors in the jury pool, Black defendants were much more likely than white defendants to be convicted of a crime.
Hannaford-Agor says courts that do a good job communicating about the steps they are taking to keep potential jurors safe during the pandemic have had better success drawing large jury pools. “What I think is the difference is the public messaging,” she adds. “Those courts that have thought very carefully about how they communicate with prospective jurors … really good public service announcements with videos about [body] temperature checks and screening and cleaning and masks. Those courts that have really leaned in heavily with outreach with those steps are seeing a much better response than those that are not communicating that.”
3. Keep in mind the vast majority of criminal cases don’t go to trial. Those that do rarely allow defendants or jurors to appear remotely.
In fiscal year 2018, 2% of federal criminal cases went to trial, according to the Pew Research Center. Jury trials accounted for an even smaller share of criminal dispositions in the nation’s four largest states in 2017, the year with the most recent data — 1.25% of cases in California, 0.86% in Texas, 1.53% in Florida and 2.91% in New York, Pew reports.
Hannaford-Agor explains that courts generally want trials held in person, partly because it’s difficult to evaluate some types of evidence via a video appearance. “The issue comes with demonstrative evidence — showing the bag of cocaine and you want people to understand the weight of it, or the knife or gun used,” she says, adding that the growing backlog of criminal cases could force courts to hold more trials remotely. “There are some real questions about how does that change and how does that affect how jurors interact and what do they do with the evidence. And those are completely unanswered questions.”
Hannaford-Agor notes that in Texas, courts now allow remote trials for people charged with misdemeanors, so long as they do not face incarceration.
Ivan Dominguez, a former litigator who is now the senior director of public affairs and communications for the National Association of Criminal Defense Lawyers, says there are other problems with remote trials. Separating a defendant from jurors virtually “dehumanizes the person on trial and reduces juror empathy,” he says, citing the association’s report, “Criminal Court Reopening and Public Health in the COVID-19 Era.”
“What is more, jurors participating virtually will be deprived of the complete panoply of non-verbal cues used to assess witness credibility,” the report continues. “Nonverbal communication encompasses 55% of communication, including eye contact, facial expressions, and body movements. In person examination allows for jurors to measure the entirety of a witness’s nonverbal communication and not just a two-dimensional bust. Finally, virtual trials deprive accused persons of a fair trial because jurors will pay less attention to the testimony when observing via ‘Zoom’ or other platform.”
4. Know the Sixth Amendment to the U.S. Constitution.
The Sixth Amendment to the U.S Constitution provides people accused of a crime the right to a “speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed.” It also mandates that the accused “be confronted with the witnesses against him.”
Legal experts and scholars have questioned whether delaying jury trials amid COVID-19 violates defendants’ right to a “speedy” trial, a term the Constitution does not define. While the U.S. Supreme Court has not determined time limits, some states require defendants be brought to trial within a certain number of days, according to a February 2021 analysis from the National Center for State Courts. There also are questions about whether limiting the public’s access to trials infringes on defendants’ right to a public trial.
Meanwhile, other questions have risen — for instance, does it interfere with defendants’ right to be confronted with witnesses if those witnesses wear masks or appear remotely via video, which could limit a defendant’s ability to assess and challenge a witness’ demeanor and credibility? In its analysis, the National Center for State Courts notes that several courts have concluded since the pandemic began that “a defendant’s rights are not abridged by prosecutions witnesses wearing face masks during their testimony.”
Jessica Roth, a professor at Yeshiva University’s law school and co-director of the Jacob Burns Center for Ethics in the Practice of Law, delves into these and other issues in a piece she wrote in October for The Atlantic.
“Looming in the not-too-distant future are significant legal questions, including whether the mechanisms adopted by courts to address public-health concerns are consistent with constitutional rights and principles core to the American criminal-justice system,” she writes. “This is completely uncharted territory. If courts get this wrong, convictions obtained pursuant to the new procedures may be unfair and vulnerable to reversal on appeal.”
5. Ask court authorities and other government officials how they are reducing the risk of prisoners — including those not convicted of any crime — contracting COVID-19.
Dominguez urges journalists to ask these questions:
- “Why aren’t more courts taking a more enlightened approach to pretrial detention — one predicated on the core principles that accused persons are innocent until proven guilty and that pretrial detention should not be a form of punishment, but instead a selectively used tool to address circumstances where there is a clear flight risk or danger to public safety absent pretrial detention?”
- “Why aren’t more state executives exercising their clemency authorities to reduce the sentences of deserving individuals serving excessive sentences who are at significant risk of contracting COVID-19 in prison systems across the nation?“
- “In this pandemic, what do local, state, and federal authorities understand their legal and ethical obligations to be to those in their custody?”
- “Why aren’t more jurisdictions listening to science and prioritizing the vaccination of those who live and work in jails, prisons, and other detention facilities?”
6. Explain how changes made during the pandemic will influence court procedures in the years to come.
Raftery says courts are gaining a better understanding of the perks and pitfalls of using different kinds of technology and the challenges involved in bringing them into criminal justice settings.
“Ultimately, I would suspect that we will never go back to where we were in February of 2020,” he says. “Online dispute resolution, Zoom hearings, virtual hearings will now be looked upon as a tool in the toolbox.”
He adds that courts in some states might decide to work with other government agencies to fund an expansion of internet access, as Nebraska courts did several years ago. The cost of expanding bandwidth to rural courts in Nebraska was shared among multiple agencies, including the state Supreme Court, Department of Motor Vehicles and Department of Health and Human Services, Nebraska Chief Justice Michael Heavican said during his annual State of the Judiciary address in 2014.
Some courts, however, might resume their old procedures after the risk of contracting COVID-19 has fallen off, Raftery explains.
“Some look at this as an emergency stop-gap and as soon as we’re out from under it, we’re back to normal,” he says. “That’s the big question — how permanent these changes are.”