Emergency monetary aid and revised criminal procedure rules for federal courts will assist in the effort to expand the use of video and telephonic hearings during the COVID-19 pandemic, but also raise questions regarding consent to remote proceedings for the accused, as well as what additional assistance may be needed for state courts.
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At the end of March, the federal government enacted the Coronavirus Aid, Relief, and Economic Security (CARES) Act, a $2.2 trillion stimulus package that included funding for individual cash payments, expanded unemployment benefits, and assistance for small businesses impacted by the COVID-19 outbreak. Another recipient of financial assistance under the CARES Act was the federal judiciary, which will obtain $7.5 million for costs mostly related to supporting the modification and continuation of federal court operations during the pandemic, efforts that will revolve to a large degree around implementing capabilities for remote proceedings.
In addition to providing funding, the new law allows federal courts to utilize remote video or telephonic appearances in a number of criminal matters that would normally require in-person appearances by the defendant, as long as the defendant consents. While this is an important step in keeping federal criminal dockets moving, questions remain as to the validity of the consent defendants may feel coerced into giving in this context, particularly when facing a choice between remote proceedings and continuing to be held in a crowded detention facility during the coronavirus emergency. Moreover, given that the vast majority of court matters in the US are heard at the state level, more assistance will be needed in order for modified court operations to benefit a greater number of people.
CARES Act Funding Related to the Judiciary
A $500,000 portion of the federal judiciary funding in the CARES Act will go to salaries, expenses, and operations related to the COVID-19 response at the US Supreme Court. So far, the country’s top court has implemented health and safety measures such as closing its doors to the public, postponing oral arguments and filing deadlines, and continuing some operations, such as releasing opinions and holding weekly conferences, in a remote manner. At this time little is known about the Court’s longer term plans for using its new funding, though the coronavirus emergency may provide an opportunity for increased transparency and accessibility through technology options such as remote oral argument and live broadcasting of its proceedings, which the Court has long resisted.
The new law also sets aside $1 million for defender services. However, the lion’s share of the judiciary funding in the CARES Act, $6 million, will go to salaries and expenses related to the lower courts’ response to the pandemic, a large proportion of which will center around building out infrastructure for remote proceedings.
Increased Use of Remote Video and Telephonic Proceedings in Criminal Cases
In the weeks leading up to the CARES Act’s passage, a number of federal courts had already suspended the majority of trial proceedings, and were hearing only the most urgent matters. As discussed in an earlier post, what this has meant for criminal cases is very limited in-person proceedings, and the use of remote technology such as videoconferencing in matters where video appearances were allowed. Previously, in federal court this included only certain proceedings such as arraignments.
Pursuant to the CARES Act, the Judicial Conference of the United States (which makes administrative policy for the federal courts) made a finding that emergency conditions were materially affecting the functioning of federal courts due to the national state of emergency, and gave federal judges expanded authority to issue orders (which are reviewable every 90 days) permitting the use of video, or telephone if that’s the only available option, in a wider range of criminal proceedings. As a result, until 30 days after the national emergency ends or the date when the Judicial Conference finds that court operations are no longer materially impacted, remote proceedings are allowable for matters such as waivers of indictment, detention hearings, and misdemeanor pleas and sentencing. Video and telephonic hearings are also allowed for felony pleas and sentencing if a court finds that an in-person proceeding cannot go forward without seriously jeopardizing public health and safety, and that any further delay would seriously harm the interests of justice. Further, the Judicial Conference has stated that it will make a temporary exception to the ban on broadcasting most federal court proceedings so that the public and the press can access them, though the details of how this access will work are still being developed in many areas.
Notably, in passing the CARES Act, Congress retained the requirement that defendants must still consent to the use of videoconferencing or telephonic proceedings after consultation with counsel, rejecting efforts by the Department of Justice to remove the consent requirement and also to allow indefinite detention without a hearing due to emergency circumstances. However, as some have argued, whether consent given under circumstances related to the pandemic will be valid remains an open question. Particularly for defendants who must decide between appearing remotely in critical criminal proceedings or remaining in custody where overcrowded and unsafe conditions are threatening to create a public health crisis due to COVID-19, time will tell if consent to remote proceedings given in this environment will give rise to arguments of constitutional or procedural flaws in the future. Moreover, and as discussed at greater length in a previous post, video appearances carry other constitutional and practical dangers, such as the decreased potential for defendants to advocate for themselves, and possible lack of privacy when communicating with counsel.
This concern may be mitigated to some degree by efforts to reduce the population density in federal detention facilities through recently announced initiatives to release a greater number of people to home confinement. However, notwithstanding the actions of individual federal judges and courts, the federal government as a whole seems to be lagging behind state and local governments to some degree in seeking to reduce prison populations through additional proactive measures, such as reducing bail amounts, declining to charge certain offenses, and pursuing more aggressive plans to release medically vulnerable populations from incarceration.
State Courts and Remote Criminal Proceedings
The CARES Act features a $150 billion Coronavirus Relief Fund to benefit state and local governments, including $850 million for law enforcement and $2 million for technology related to justice information sharing, both of which should assist efforts to implement greater use of video and telephonic legal proceedings. This portion of the CARES Act does not appear to clearly earmark significant additional funding for state courts, though these amounts could be disbursed from larger general allocations made to state or local governments. Again, given that a much larger proportion of court proceedings across the US occur in the state system compared with the federal system, the need will be just as great if not greater for state courts to rapidly implement remote technology to the greatest extent possible in response to the coronavirus pandemic.
Similar to the federal system, states such as California have taken steps not only to delay trial proceedings and prioritize time-sensitive matters, but also to encourage the use of video and telephonic technology wherever possible in an effort to prevent the spread of COVID-19. Indeed, the Judicial Council of California has specifically adopted several temporary emergency rules, including provisions allowing appearances by video or telephone for most criminal pretrial proceedings, as long as the defendant consents. Judges and court staff across the country have also been rushing to familiarize themselves with videoconferencing platforms like Zoom in order to utilize them for essential court matters, along with livestreaming on YouTube to maintain public access.
In general, state criminal justice systems are subject to the same constraints as federal courts related to consent by defendants to use video or remote proceedings, and will likely face some of the same challenges with regard to the integrity of those proceedings in the future. Another hurdle for state courts will also be the inconsistent availability of technology that can support video proceedings, which may not exist at all in some places, leaving defendants and their counsel to rely on telephonic proceedings and their attendant shortcomings in many areas. As argued here, greater measures and additional funding will be needed in order for state courts to implement effective remote hearing capabilities to a larger degree, and to respond to the coronavirus pandemic in a manner that protects the health of all participants in the criminal justice system while also protecting the constitutional rights of the accused.
The CARES Act has provided the federal judiciary with some preliminary funding as well as emergency temporary rules that will permit the expanded use of video and other remote technologies for a wider variety of criminal court proceedings during the COVID-19 outbreak. These funds will provide needed assistance, and will perhaps encourage some technological advancement within institutions that are somewhat lacking in this area. Indeed, it is likely that courts will retain some of the current emergency remote measures for future non-emergency use, increasing the possibility that a more widespread use of video and telephonic appearances in civil and criminal courts can potentially improve efficiency and access to justice in many cases. On the other hand, the validity of any consent given by defendants to participate remotely in critical criminal proceedings under these circumstances may later be called into question. State courts are also in need of much greater assistance in order for the benefits of remote technology to reach the vast number of people currently in need of an emergency solution.
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