From courtrooms to four-way screens, we’re witnessing a revolution in the legal industry! As a result of the global health crisis caused by COVID-19, we’ve seen dozens of legal proceedings make the transition to remote work. Although eFiling and remote pretrial proceedings were already relatively common, one of the most surprising developments has been the progress of criminal cases.
In the past, remote criminal cases were extremely rare. Today, and with the cooperation of judges, prosecutors, attorneys, and defendants – remote criminal cases are becoming more common. In this article, we’re going to review how this change occurred and explore the potential long-term implications.
How Did It Happen
On March 27th, the federal government passed the Coronavirus Aid, Relief, and Economic Security Act (CARES). The CARES Act included a provision that allowed federal criminal cases to proceed through videoconferences, remote depositions, and conference calls. This is considered an emergency authorization, and it will be revoked at the end of the pandemic.
The CARES Act also allocated $6 million to federal courts for “pandemic-related expenses including increasing their technological capabilities with regard to conducting hearings by video and phone.” This funding was critical to offset the immediate expenses of shifting to remote litigation.
As a result of the CARES Act, the following pretrial and post-conviction proceeding can currently take place remotely:
- Detention hearings;
- Initial appearances;
- Preliminary hearings;
- Waivers of indictment;
- Arraignments;
- Probation and supervised release revocation proceedings;
- Pretrial release revocation proceedings; and
- Appearances based on failing to appear in another district or for violating conditions of release set in another district.
Despite the bill, the individual chief judges of each federal district court will still need to authorize the use of remote technology for felony criminal cases. Furthermore, courts may proceed with videoconferencing ONLY if the defendant consents after consultation with counsel.
But what happens if the defendant doesn’t consent?
As you can imagine, there are a number of reasons that a defendant might choose to refuse consent to videoconferencing. The most apparent reason would be to delay sentencing or to avoid arraignment. At the moment, we do not have a clear answer about how criminal cases should proceed if the defendant refuses to give videoconferencing authorization. Industry experts have speculated that Congress will need to issue a judgment on this matter before the end of the pandemic.
The Long-term Impact
For years, non-criminal cases have had more remote technology options than their criminal counterparts. This is because the Fifth and Fourteenth Amendments to the Consitution are referring explicitly to criminal cases. The Constitution does not expressly grant a criminal defendant the right to be physically present during the process, except in the case of confronting a witness.
The situation is perhaps most complicated for individuals who are currently incarcerated. Outbreaks of coronavirus in prisons across the country have been a significant cause for concern. As a result, a defendant might agree to proceed through videoconference in the hopes of being released from custody. If the defendant receives a negative response, it is possible they might appeal and challenge the validity of remote proceedings altogether. Any challenges would likely cite the defendant’s constitutional right to be present, confront witnesses, and communicate privately with counsel.
We can’t be certain that decisions rendered remotely will succeed in court if they are challenged. Although the provisions in the CARES Act followed existing legal precedent, there is a fundamental human bias toward physical depositions. In fact, the U.S. Court of Appeals for the Seventh Circuit once opined that “the form and substantive quality of the hearing is altered when a key participant is absent from the hearing room, even if he is participating by virtue of a cable or satellite link.”
Final Thoughts
At the moment, it’s impossible to say whether the emergency changes in the CARES Act will ever be enacted by Congress permanently. One thing that we can surmise is that current remote criminal proceedings will serve as a ‘trial run’ for any future sweeping changes. We expect that courts will be carefully watching the impact of videoconferencing on their budgets and case outcomes.
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