The National Association of Criminal Defense Lawyers (NACDL), with support from the NACDL Foundation for Criminal Justice (NFCJ), released a report Thursday saying that due to COVID-19, court proceedings and especially jury trials present a “grave risk to all participants.”
The absence of a vaccine or rapid testing “and highly-infectious asymptomatic transmission” create serious problems for courtrooms.
The report said, “Resuming criminal jury trials–particularly in areas of significant community-based transmission –would not only be reckless and irresponsible, but would also undermine the truth-seeking purpose of trials given the well-documented and understandable fear, panic, and uncertainty on the part of jurors, witnesses, court staff, deputies, judges, prosecutors, and defense counsel.”
The report, “Criminal Court Reopening and Public Health in the COVID-19 Era,” said, however, that virtual or remote proceedings are “inherently inconsistent with fundamental constitutional rights.”
“We know from the science that across the nation the characteristics of courtrooms, courthouses, and the proceedings that occur inside them, present precisely the type of settings in which the virus spreads most efficiently – enclosed spaces requiring close proximity for an extended period of time,” said NACDL President and Task Force on Criminal Court Reopening Member Nina J. Ginsberg.
Among the recommendations are that the use of virtual proceedings be limited “to the maximum extent possible,” both in scope and duration, and only used with the knowing and informed consent of the accused.
The report calls for “far greater use of pre-trial release and other mechanisms, such as providing the accused with the unilateral right to elect a bench trial where that right does not already exist.”
Among the other recommendations: In-person proceedings must be certified by independent medical experts to present minimal risk of COVID-19 transmission.
The report also said, “The pressure created by the pandemic suggests that courts should reconsider and remedy excessive use of pre-trial detention. Just as the pandemic has exposed inequalities in public health, it has further exposed the fact that courts routinely detain individuals before trial in lieu of practical, available, and safe mechanisms for pre-trial release.”
As the nation’s courts press forward with tentative reopening, “It is imperative that leadership of the judiciary and other stakeholders understand the implications for the criminal legal system and adhere to core principles going
This summary was prepared by TCR Deputy Editor Nancy Bilyeau