In response to the COVID-19 pandemic, state and federal courts are taking extraordinary measures in an effort to slow the spread of the SARS-CoV-2 virus. Faced with the need to completely or partially shutter courthouses, courts are rapidly expanding their use of remote conferencing in order to remain operational to the greatest extent possible.
Many courts have limited operations in order to comply with shelter-in-place or stay-at-home orders Moreover, courts are increasingly using videoconferencing to hold proceedings, hearings, and conferences remotely. For example, on March 25, 2020, New York City courts started using remote video conferencing to conduct critical legal proceedings in criminal and family courts.1 New York anticipates that the entire state will use video conferencing for essential and emergency matters in the coming weeks.2 New Jersey is also transitioning to video and phone proceedings.3
Additionally, many states have decided to suspend jury trials to curtail the spread of COVID-19. In Florida, the Supreme Court suspended all grand jury proceedings, jury selection proceedings, and criminal and civil jury trials through April 17, 2020.4 This order allows for proceedings that have already commenced to continue, if justice so requires, with approval of the presiding and chief judges. Likewise, the Supreme Court of Colorado extended its prior suspension of all jury calls in state court until May 15, 2020, with the exception of criminal trials facing speedy trial deadlines.5
Notably, the Chief Justice of California’s order suspending jury trials for 60 days, issued on March 23, 2020, allows for trials to continue through the use of remote technology, “when appropriate.”6 7 This will allow trials to move forward and decrease the inevitable backlog of cases.
The Coronavirus Aid, Relief and Economic Security Act (CARES Act), signed into law on March 27, 2020, provides approximately $1 billion to support criminal and civil justice needs arising from COVID-19. The appropriations include $100 million to the Federal Prison System, $6 million for federal court salaries and expenses, $1 million for Defender Services, and $50 million for the Legal Services Corporation to address the increased need for civil legal services due to COVID-19.8 It is anticipated that much of this funding will be used to expand remote work capability.
The CARES Act also authorizes the use of video and audio conferencing in federal criminal proceedings. Remote conferencing is permitted for detention hearings, initial appearances, preliminary hearings, arraignments, probation and supervised release revocation proceedings, and misdemeanor pleas and sentencings, etc.9 Felony pleas and sentencings can also be held remotely if they “cannot be further delayed without serious harm to the interests of justice.”10 The Act further allows the Bureau of Prisons to create new rules to allow free video and telephone visitations with inmates,11 and lengthen the amount of time a prisoner may be placed in home detention.12
Despite efforts to expand the use of remote conferencing, not all clients have access to the internet and some shelter-in-place or stay-at-home orders do not allow for legal services to be done remotely (e.g. execution of wills, health care directives, etc.). To address this, the American Bar Association has advocated for legal services to be considered “essential,” and therefore exempt from "stay-at-home" or similar orders.13 Exempting legal services will ensure that individuals and families can access critical, time-sensitive services relating to estate planning, healthcare, housing, domestic violence, and child custody, and individuals charged with crimes can access counsel.
During this challenging time, lawyers should practice civility with their adversaries to try to resolve issues on their own without further burdening the courts. To allow civil discovery to continue uninterrupted, many courts have relaxed rules to allow parties to conduct depositions remotely, which is both practical and efficient.14 Still, some Defendants are unnecessarily objecting to videoconference depositions. This is unfairly prejudicial to Plaintiffs and courts should not condone such practices.
While COVID-19 constrains judicial resources, state and federal courts should remain focused on essential and emergent matters. Courts should be commended for their quick adoption of technologies and continue expanding their use. In addition, civil discovery should move forward whenever possible by taking advantage of remote technology.
1 New York State Unified Court System Press Release (N.Y. Mar. 22, 2020), available at https://www.nycourts.gov/LegacyPDFS/press/PDFs/PR20_07.pdf.
2 Message from New York Chief Judge DiFiore (N.Y. Mar. 30, 2020), available at https://www.nycla.org/pdf/Message%20From%20Chief%20Judge%20DiFiore%20March%2030%202020.pdf.
3 New Jersey order suspending court proceedings, transition to video and phone proceedings (N.J. Mar. 27, 2020), available at https://www.njcourts.gov/notices/2020/n200327a.pdf.
4 Florida order suspending jury trials, grand jury proceedings, and jury selection proceedings (Fl. Mar. 24, 2020), available at https://www.floridasupremecourt.org/content/download/632431/7186205/AOSC20-17.pdf.
5 Colorado order suspending jury calls (Col. Mar. 20, 2020), available at https://www.courts.state.co.us/userfiles/file/Media/SC%20-%20Cases%20of%20Interest/Order%20Extending%20Prohibition%20on%20Jury%20Calls.pdf.
6 California order suspending jury trials (Cal. Mar. 23, 2020), available at https://newsroom.courts.ca.gov/internal_redirect/cms.ipressroom.com.s3.amazonaws.com/262/files/20202/Statewide%20Order%20by%20the%20Chief%20Justice-Chair%20of%20the%20Judicial%20Council%203-23-2020.pdf.
7 Remote trials may not be “appropriate” in criminal cases because they pose constitutional concerns. Under the U.S. Constitution, the Sixth Amendment guarantees a defendant the right “to be confronted with the witnesses against him,” which has generally been interpreted as requiring a face-to-face examination.
8 CARES Act, Title II, V.
9 Id., Sec. 15002(b)(1).
10 Id., Sec. 15002(b)(2).
11 Id., 12003(c)(1).
12 Id., Sec. 12003(b)(2).
13 American Bar Association March 24, 2020 letter, available at https://www.americanbar.org/content/dam/aba/administrative/government_affairs_office/aba-covid-cisa%20.pdf?logActivity=true.
14 See e.g., Florida order allowing remote depositions (Fl. Mar. 18, 2020), available at https://www.floridasupremecourt.org/content/download/632105/7182680/AOSC20-16.pdf. Similarly, the Texas Supreme Court ordered that anyone involved in a deposition may participate remotely. Texas Order allowing remote depositions (Tx. Mar. 13, 2020), available at https://www.txcourts.gov/media/1446056/209042.pdf.
