Experts Urge Caution as Courts Reopen Via Video

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After closing their doors to help prevent the spread of COVID-19, many courts are attempting to seek a “new normal,” mainly by video proceedings, reports the Brennan Center for Justice at New York University.

In addition, several jurisdictions have resumed some version of in-person proceedings while observing social distancing precautions.

As of this week, 30 of the 94 federal district courts have allowed jury trials to resume. Courtrooms are regularly cleaned and jurors are kept at least six feet from each other.

In the Northern District of Texas, jurors are protected by plexiglass barriers and face shields.

Some defender services have strongly opposed courts’ reopening for in-person appearances, arguing that doing so endangers the health of defendants, lawyers and court employees.

Nine New York City legal aid groups told the state’s chief administrative judge that the “pandemic has had a disproportionate impact on low-income Black and Brown people, the same community that is also disproportionately arrested and represented in court cases in NYC and will bear the brunt of [the reopening].”

Most states have allowed judges to resume eviction and foreclosure hearings. In at least 26 states, courts have held remote eviction and foreclosure hearings to remove people from their homes, says the Wake Forest Law Health Justice Clinic.

Critics complain that a missed call or a failed internet connection can make the “difference between housing and homelessness.”

Most courts have used virtual court proceedings for at least part of the pandemic. At least 86 the 94 federal district courts and all federal appellate courts are holding at least some hearings remotely. And as many as 38 states either mandate or encourage courts to use virtual hearings when possible.

In August, the first virtual criminal jury trial for a misdemeanor case was held in Texas.

In one California civil case, virtual jury selection prompted a mistrial motion, with the defendants alleging that the plaintiff appeared to be casually talking to some of the prospective jurors while the counsel and judge were in a separate video chat.

The complaint said one prospective juror appeared to be lying in “a bed, curled up, and possibly asleep,” and that another juror was “working out on an elliptical machine.” The judge denied the motion, but placed jurors, witnesses and the case parties in a “waiting room,” preventing them from interacting with each other when the judge is not present.

Some judges would like to see video become a permanent feature of court operations, while others have expressed concern that remote proceedings hinder access to justice.

The Brennan Center published a separate paper saying that research suggests reasons for caution in expanding the use of conducting court practices by video.

One study of bail hearings found that defendants whose hearings were conducted by video had substantially higher bond amounts set than did their in-person counterparts.

A study of immigration courts found that detained people were more likely to be deported when their hearings occurred by video.

Several studies of remote witness testimony by children found that they were “perceived as less accurate, believable, consistent and confident when appearing over video.”

The Brennan Center recommended that “as courts develop policies for remote proceedings, they should consult with a broad set of stakeholders, including public defenders and prosecutors, legal services providers, victim and disability advocates, community leaders, and legal scholars.”

Ted Gest is president of Criminal Justice Journalists and Washington bureau chief of The Crime Report.

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