This article was originally published by the University of Chicago Law Review Online, as part of the series,COVID-19 and Criminal Justice. The following is the introduction.
Criminal courtrooms are among many workplaces to shut down and adopt virtual operations in response to the coronavirus pandemic. As criminal courts around the United States suspended in-person proceedings, virtual hearings, where parties appear through videoconference or teleconference technology, have allowed courts to remain in session while reducing the danger to public health. Courts at all levels, from small municipal courts to the U.S. Supreme Court, have been hearing arguments remotely. In 38 states, as well as the District of Columbia and Puerto Rico, courts have either mandated or encouraged the use of virtual hearings when appropriate. Federal courts have been authorized through the CARES Act to conduct civil, and certain criminal proceedings, with the consent of the defendant, using video or telephone conferencing.
These virtual criminal proceedings have not only raised important questions regarding fairness and constitutional rights in critical stages of criminal proceedings, but also questions regarding the extent to which in-person court appearances in preliminary or minor matters were so often required in the past. The answers to those questions differ depending upon which stage of the criminal process is virtual: probable cause hearings, magistration hearings, first appearances, grand juries, pre-trial hearings, trials, and appellate and post-conviction hearings are differently affected by virtual appearances. Different criminal-procedure and constitutional rights are at stake, depending on the stage of a criminal case. At one extreme, a wide range of constitutional rights are implicated at a criminal trial; and for that reason, no virtual felony trial has been conducted. At the other, at least one misdemeanor trial and several pre-trial proceedings, as well as appellate and post-conviction proceedings, have been conducted virtually. To be sure, trials are less common, as compared with proceedings like first appearances and plea colloquies, which consist of the bulk of caseloads. However, those early-stage criminal proceedings implicate important constitutional rights, such as the right to counsel during a police interrogation, and the ability to confer with counsel pre-trial.
In this Essay, we first discuss the implications of virtual criminal hearings. When a lawyer cannot be present with a client or confront witnesses in person, several constitutional criminal-procedure rights—including public trial, confrontation, right to counsel, and access to courts—are affected. Second, we examine the implications for the quality and fairness of outcomes in criminal cases. Third, we discuss the research regarding how virtual proceedings may affect outcomes in criminal proceedings.
Read the full article here.