As courts across the country race to modify or halt operations in light of social distancing policies mandated due to the COVID-19 emergency, they will be greatly expanding their utilization of remote or virtual proceedings. While these tech solutions must be balanced against constitutional interests, they ultimately have the potential to increase access to justice for all.
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The coronavirus pandemic has changed life as we know it on almost every level, with governments, health care systems, businesses, and innumerable other entities struggling to respond in a manner that safeguards the health and well-being of our communities. The rapid spread of the virus has presented especially difficult challenges for institutions that must continue providing essential services to the public, but that must also adhere to social distancing and other health guidelines put forth by the CDC as well as state and local government offices.
In light of the threat posed by COVID-19, courts at all levels of the judiciary are working quickly to amend procedures and standing orders in state and federal courts in a manner that minimizes the number of people who must be physically present in the courtroom at any given time. However, they are also seeking to keep dockets moving, particularly for time-sensitive matters, and to implement expanded capabilities to conduct proceedings remotely. In doing so, court systems are confronting the age-old problem of how to incorporate technology to a greater degree into everyday judicial procedures. As the courts struggle to close this technological gap, they must also grapple with the inevitable challenges this transformation presents in terms of constitutional rights and other legal barriers. However, if these hurdles can be overcome in a manner that involves the more widespread use of tech solutions in legal proceedings, this can ultimately serve to increase access to justice now and after the pandemic abates.
Technology in the Courtroom
The use of technology in court proceedings has long been commonplace for things like presentation of evidence, which typically involves courtrooms being wired for laptop usage, and video testimony by certain witnesses. Some practitioners have even deployed virtual reality demonstrations for jurors, with VR advocates predicting that regular use of these systems in courtrooms is only a few years away. Video broadcasting of court proceedings is also commonplace in state courts across the country, though it is much less common in federal courts (and the US Supreme Court does not allow it at all).
Technology is being incorporated into court operations in areas related to judicial decision-making and conduct as well, but with mixed results. For example, algorithms have been used in some court systems to decide criminal matters such as whether defendants should be released on bail, but have reportedly been shown to produce racially biased or unfair outcomes. Similarly, judicial internet research in adjudicating cases is a somewhat unsettled topic, with the rules governing the propriety of gathering information in this manner being murky at best. In terms of judicial tech competence in general, surveys have indicated that a large percentage of judges believe that members of the judiciary are in need of additional training to effectively utilize existing technological tools and systems.
Remote or Virtual Court Proceedings
Countries including China, England, and Wales have been hard at work building out virtual court infrastructure either in response to the coronavirus outbreak or as part of ongoing efforts to streamline judicial operations and increase access to justice. Some US courts are also ahead of the curve in this context, and have already built virtual systems for addressing matters such as traffic infractions or appearing in a wider variety of proceedings. Oral argument occurs remotely in a number of appellate courts, with both judges and counsel appearing by videoconference. Moreover, telephonic appearances are very common in courts across the country, though the usefulness of this format can be limited depending on the type and level of complexity of a given proceeding. Despite the use of these remote technologies being an everyday occurrence in some jurisdictions, progress is spotty, with some courts lagging far behind.
Altering Court Operations in Response to COVID-19
As the coronavirus threat continues to grow, courts across the US have been moving quickly to limit in-person proceedings as much as possible so as to keep members of the public out of courthouses, allow judges and staff to work remotely, and protect the health of all other court employees. Many courts, such as the US District Court for the Central District of California, have temporarily suspended all civil hearings except for emergency matters, which will only be heard telephonically. However, there is a lack of uniformity across the federal court system in terms of how individual facilities are responding, with some remaining open for business as usual. California’s Chief Justice has issued guidance similar to that of the Central District for the state court system, and the National Center for State Courts has compiled and categorized examples of standing orders that courts have issued with regard to handling case types involving time-sensitive matters such as domestic violence, evictions, and foreclosures.
Courts in heavily populated areas such as New York are struggling to draw down operations while already straining under a heavy caseload, with some of the most pressing challenges manifesting in the criminal courts. In an effort to slow the spread of coronavirus in court facilities and stave off a potential public health crisis in jails and prisons, prosecutors and criminal court judges are being advised to refrain from prosecuting low-level offenses, to lower bail amounts, and to release incarcerated people who are either the most vulnerable to virus impacts or serving time for minor offenses. And while in-person criminal proceedings are continuing to varying degrees in some places, they have been put on hold in others, raising constitutional concerns regarding indefinite detention in situations where juries are not being empaneled in order for indictments to occur, or where defendants otherwise lack the opportunity to appear before a judge in a timely manner to make bail and/or have access to a speedy and public trial.
Criminal courts will likely need to begin leveraging remote technology to a greater degree to mitigate COVID-19 risks, but may face additional legal and constitutional barriers in the process. Some criminal systems are moving forward with virtual proceedings, but discovering hurdles such as the need to broadcast hearings simultaneously on YouTube in order to comply with open court laws. And though criminal proceedings such as first appearances or arraignments can and do take place remotely in some courts, experts warn that requiring defendants to stand trial remotely without their consent, as recently proposed by the DOJ, is a severe civil rights violation. A 2016 study published by the National Association for Presiding Judges points out additional constitutional and legal challenges with remote appearances, such as interference with the right to confront witnesses, as well as the fact that video conferencing is not allowed in criminal proceedings in all states. Relatedly, the study points out that constitutional considerations and state law can militate against the use of video appearances in proceedings involving dependency, setting bail, and mental or physical health determinations.
As for immigration courts, reports indicate that confusion has stemmed from inconsistent decisions regarding court closures, with many facilities remaining open and some even penalizing parties for not appearing due to coronavirus concerns. The New York State Attorney General has urged the US Attorney General and immigration court officials to delay certain proceedings, and for telephonic and electronic means to be used for others in order to protect the health of attorneys, court staff, parties, and the public. Thousands of doctors, including two who serve as experts for the Department of Homeland Security are calling for the release of immigration detainees to prevent a health catastrophe similar to what many in the criminal justice system are concerned about with regard to prisons and jails as described above. Three immigrants’ rights groups have also filed a lawsuit seeking the immediate release of individuals being held in family detention, detailing the constitutional and legal violations associated with ongoing detention during the coronavirus crisis in particular.
Building a Virtual Court System
As courts scramble to devise solutions, many are turning to legal tech companies whose services allow judges, attorneys, and parties to conduct business by telephone or video. With some precedent for changes of this nature existing in the context of responses to past crises such as Hurricane Sandy, hopefully potential will exist for courts to leverage existing or emergency resources to take similar steps in the case of COVID-19, but on a much broader scale. Indeed, perhaps the current pandemic will provide the same tipping point for court and judicial tech competence that it may provide for lawyers who are currently facing similar challenges in taking their practices virtual in order to observe social distancing protocols.
Even in a situation with adequate resources and plans in place, transitioning to virtual court proceedings will not be without its challenges. As some practitioners have pointed out, disadvantages to the use of videoconferencing in a trial setting can include things like potentially foregoing the persuasiveness of live witness testimony, as well as technological malfunctions. Moreover, and assuming that these challenges and the constitutional barriers discussed above can be overcome, there is still a question of access to technology among members of the public, including individuals who are detained or incarcerated. People who do not own devices or have an internet connection may be hard pressed to participate in remote court proceedings, especially with libraries and legal clinics being closed for social distancing purposes.
That being said, implementing the use of remote technology in legal proceedings has a great potential to increase access to justice in many cases by cutting down the costs and travel associated with court appearances for parties, witnesses, and attorneys, increasing the availability of interpretation services, and promoting the efficient resolution of legal disputes. Particularly when combined with existing methods of obtaining free legal help online, such as through Justia’s Ask a Lawyer platform, a greater push toward making legal resources available via technology can contribute to efforts to build a more efficient and accessible legal system.
What Can Lawyers Do Right Now?
For attorneys who regularly represent clients in court, there are a few concrete steps you can take as the courts navigate the emergency situation that has arisen due to COVID-19:
- Check the websites for any state or federal courts you regularly practice in for updates on facility closures, standing orders, calendar or filing deadline changes, and remote proceeding rules.
- Add a banner and/or FAQ page to your law firm website for clients regarding any changes to your practice operations during the coronavirus crisis.
- Make sure you and any necessary staff are registered and trained in the e-filing procedures utilized in the courts you practice in.
- Implement videoconferencing or video chat technology as part of your practice to provide an alternative to in-person client meetings, and to potentially allow for remote court appearances. You can consult Justia’s updated guide regarding the various available systems and apps to get started, and list the services you use on your Justia Lawyer Directory profile.
- Assess what your legal ethics obligations may be in relation to operating your law practice virtually during times of mandated social distancing.
- Review these ideas from Justia regarding how to improve your firm’s internet presence.
- Check this frequently updated list of free support and resources available to legal professionals working to serve their clients remotely during the COVID-19 outbreak.
Many courts across the US have been incorporating technology and remote proceedings into their operations for some time. With the rapid onset of the coronavirus pandemic and the resulting social distancing policies, courts at all levels of the judicial system are working to accelerate the adoption of videoconferencing and other means of holding remote proceedings. While this technological transformation will serve to protect public health for most, this objective must be balanced against constitutional and other concerns. However, if courts can find ways to build tech infrastructure into their everyday operations to a greater degree, this can potentially serve to make the legal system more efficient and accessible for all.
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