By: Derek Reigle

 

The COVID-19 pandemic has resulted in extraordinary changes across America and the world. This phenomena has not escaped the American legal system. Last week, the Supreme Court announced that it will begin hearing cases via teleconference, a first for the court.[1] The Supreme Court is not alone in its changes. Indeed, all over America, courts have moved hearings online, which are conducted through video teleconference software programs like Zoom.[2]

States have responded to these new online courts in interesting ways. In Texas, there are guidelines on how to dress and present oneself on Zoom in Court.[3] This makes sense because some attorneys are appearing online while still in bed, leading to judicial reprimands.[4] Further problems also have emerged. Some court hearings have even been hacked into—online trolls “zoom bombing” a court proceeding in order to disrupt the process.[5] As a result of “zoombombing,” federal prosecutors are now issuing warnings that declare intruding into uninvited zoom calls is a felony.[6]

Issues beyond just the logistical impact of online court proceedings have also developed. Some of these substantive concerns will inevitably lead to several interesting and complicated constitutional questions. One of the concerns raised by criminal defense counsels is already being argued in some state courts. They argue that the video examination of witnesses during criminal trials does not fulfill the confrontation requirement enumerated in our Constitution.[7]  Another issue is the right to a speedy trial. Cases are being pushed back to June and July across the country,[8] but what if the pandemic continues to linger? The result of these complicated legal questions could determine the future plans that are put in place for the next potential pandemic.

As of now, the extent and length of the pandemic is unknown. However, several additional changes are already permanently altering the legal landscape. Some of these changes could be beneficial in the long run for judges. Confrontation Clause issues aside, many courtroom procedures that require face to face interaction could be moved online.[9] This could help provide some transitional juice to an antiquated profession. Think about it: lawyers could handle cases further away, access to courts could be increased because people could call in remotely, and judicial efficiency could be increased as a result.

Another positive of this situation is that some prisoners who are eligible for parole are now being released in greater numbers.[10]  This is due to fears of the coronavirus spreading throughout our prisons and infecting prisoners.[11]America has highest number of incarcerated persons in the world,[12] and reducing those numbers through the release of non-violent offenders would be a great thing.

Ultimately, the next few months and, potentially, years will bring about a significant amount of changes in the way Court is conducted, both in person and online. There will also be changes in how we handle our vulnerable prison population.  All of this will lead to several interesting constitutional questions. Hopefully, we can take note of all of these noteworthy changes and implement the unexpected positives from a terrible situation.

[1] See Pete Williams, In Historic First, Supreme Court to Hear Arguments by Phone, NBC News (Apr. 20, 2020), https://www.nbcnews.com/politics/supreme-court/historic-first-supreme-court-hear-arguments-phone-n1182681.

[2] See Aaron Holmes, Courts and Government Meetings Have Fallen into Chaos After Moving Hearings to Zoom and Getting Swarmed With Nudity and Offensive Remarks, Business Insider (Apr. 20, 2020), https://www.businessinsider.com/zoom-courts-governments-struggle-to-adapt-video-tools-hearings-public-2020-4.

[3] See Electronic Hearings with Zoom, Texas Judicial Branch, https://www.txcourts.gov/programs-services/electronic-hearings-with-zoom/.

[4] See Danielle Wallace, Florida Judge Urges Lawyers to Get Out of Bed and Get Dressed for Zoom Court Cases, Fox News (Apr. 15, 2020), https://www.foxnews.com/us/florida-coronavirus-judge-lawyers-zoom-shirtless-bed-poolside-dressed.

[5] See Nick Statt,’Zoombombing’ is a Federal Offense That Could Result in Imprisonment, Prosecutors Warn, The Verge (Apr. 3, 2020), https://www.theverge.com/2020/4/3/21207260/zoombombing-crime-zoom-video-conference-hacking-pranks-doj-fbi.

[6] See id.

[7] See Interview with Hon. Anne Hartnett, Judge, Court of Common Pleas of The State of Delaware, in Dover, Del. (Apr. 21, 2020).

[8] See id.

[9] See id.

[10] See Iowa to Release Prisoners to Minimize Spread of COVID-19, KCCI (Apr. 20, 2020), https://www.kcci.com/article/iowa-to-release-prisoners-to-minimize-spread-of-covid-19/32216621.

[11] See id.

[12] See Drew Kann, 5 facts behind America’s High Incarceration Rate, CNN (Apr. 21, 2019), https://www.cnn.com/2018/06/28/us/mass-incarceratio.n-five-key-facts/index.html.

Image Source: https://www.drugtargetreview.com/news/57287/3d-visualisation-of-covid-19-surface-released-for-researchers/

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