In normal times, when a serious crime occurs and a person is charged, that person is soon presented before a judge. He or she is then advised of the charges, appointed a lawyer if he or she does not already have one, and bail is determined. From there, the machinery of justice proceeds apace: Grand juries hear testimony; prosecutors obtain an indictment; a trial date is set. During the time between indictment and trial, defense counsel meet with their client to prepare, review discovery and motions, and discuss strategy and any plea offers—all crucial parts of the right to the assistance of counsel guaranteed by the Constitution.
At this point, the suspect can plead guilty, and most do. But if a defendant exercises their right to jury trial, jury selection begins, with scores of eligible jurors sent to a courtroom for voir dire, where they are asked questions by the judge and lawyers, and the pool is ultimately whittled down to the 12 people (in most jurisdictions) who will serve as the jury, plus a few alternates. Then the trial begins: Witnesses testify, lawyers examine and cross-examine them, and the jury deliberates and attempts to reach and deliver a verdict.
How impossible that all seems today. At every stage of this process, humans must be together, inside, talking for long hours at a time. Since the start of the COVID-19 crisis in the United States, these processes have mostly been on hold—and with them, the constitutional rights of these defendants, and the possibility of justice for the crimes at issue.
But that is beginning to change. Seven months into the pandemic, courts around the country are beginning to restart their criminal dockets. As they dip their toes into these waters, the practical obstacles are staggering. For example, is the courthouse spacious enough for jurors to socially distance? Are the courts’ technological systems capable of supporting remote testimony or deliberations? For now, many courts are consumed, understandably, by these concrete challenges. But looming in the not-too-distant future are significant legal questions, including whether the mechanisms adopted by courts to address public-health concerns are consistent with constitutional rights and principles core to the American criminal-justice system. This is completely uncharted territory. If courts get this wrong, convictions obtained pursuant to the new procedures may be unfair and vulnerable to reversal on appeal.
In this current COVID-19 era, which has seen a spike in some categories of crime, prosecutors are still filing new criminal charges, but the process thereafter has been turned upside down. Although some courts are still holding them in person, first appearances and bail hearings are now happening remotely in much of the country, with many defendants appearing by videoconference while in custody. Because of the rampant spread of COVID-19 in jails, some defendants who otherwise would have been detained pending trial have been released, particularly those with underlying health conditions that make them more vulnerable. But for the many who are still detained, the opportunity to meet with their lawyers has been gutted by limits on in-person meetings due to the pandemic.
In some jurisdictions, defendants have stayed in jail even after prosecutors missed the usual statutory deadline for indictment, because governors or state supreme courts have lifted those deadlines so as not to require grand juries to meet. The normal statutory deadlines for bringing cases to trial after indictment have also been suspended, indefinitely in some places. Meanwhile, defense lawyers’ ability to investigate their cases has been significantly undermined—not only by restrictions on in-person meetings with their clients, but because of travel restrictions, witnesses’ health concerns, and the amount of time many have had to devote to trying to get their clients out of jail, where they risk infection with COVID-19. Some also lack access to the basic equipment needed to work remotely. To be sure, prosecutors are also confronting challenges to their ability to interview witnesses and collect evidence—and, in some cases, experiencing budget cuts—but their burdens do not raise the same concerns about defendants being deprived of the effective assistance of counsel.
As we move into the next phase of the pandemic, new cases will continue to be far easier to start than to finish. That is because grand-jury proceedings adapted to the necessities of this moment are more readily reconciled with the Constitution than are jury trials. Grand-jury proceedings, after all, are by tradition and law secret, cutting down the number of people who must be present. And although the Fifth Amendment provides a right to indictment by grand jury, it is largely silent about how grand-jury proceedings must be conducted. Federal and state statutes prescribe methods for the selection of grand jurors and how they perform their service, but the Constitution does not. So many of the grand-jury innovations currently under way may well pass constitutional muster, so long as the resulting panels still reflect a fair cross section of the community. For example, the Southern District of New York is permitting grand jurors to meet semi-remotely, assigning some grand jurors to a courthouse in White Plains, and others to Manhattan. Similarly, the federal district of Montana is allowing grand jurors to report to whichever of its five courthouses is closest to their home, and then connecting the panel virtually. New Jersey and Arizona are allowing some grand juries to meet entirely remotely, including from home. New York State has resumed in-person grand juries, with jurors required to wear masks at all times and courtrooms adapted for social distancing.
Alternatives exist to initiating charges by grand-jury indictment, at least for some state prosecutors. The Fifth Amendment right to indictment by grand jury is one of the few provisions of the Bill of Rights that does not apply equally to the states. Thus, although many states do use grand juries, as a matter of federal constitutional law, they are free to commence criminal charges with other mechanisms, such as preliminary hearings before a judge or an information filed by the prosecutor, which contains the charges against the defendant but is not presented to a grand jury. There may, of course, be other legal constraints on tinkering with grand-jury practice. But those could likely be cured by state or federal legislation like the criminal provisions of the CARES Act passed by Congress in response to the pandemic. Those provisions supersede existing federal statutes and rules of criminal procedure to authorize the use of teleconferencing in a variety of stages of the criminal process, such as initial presentments, pleas, and sentencings. The CARES Act did not address grand juries, but a subsequent statute could. Even without such authorizing legislation, courts may be within their supervisory authority in adapting grand-jury proceedings to the current crisis, although that is not entirely clear.
Assuming that criminal charges are initiated by a grand jury’s indictment or some other constitutionally permissible substitute, then the even more difficult challenges begin. As a federal prosecutor told a court in one case that recently went to trial in Chicago, in the COVID-19 era, defendants cannot simultaneously assert all of their rights, because they are “in conflict” with one another. Defendants have to “prioritize” a speedy trial, a trial by jury, or a trial in which the witnesses are physically present. No matter that all of these rights are guaranteed by the Sixth Amendment, which states that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury … [and] to be confronted with the witnesses against him.” These rights apply to the states as well as the federal government.
Suppose, then, that a defendant insists on having a jury trial, and is not willing to wait until the pandemic is over. Does a trial by a jury that is spread throughout the courtroom, rather than sitting together in the customary jury box or jury room, suffice? Most courts are betting that it does and are investing significant resources in converting spaces to that purpose. What about a jury that, in whole or in part, receives evidence or deliberates virtually? The Sixth Amendment does not say, and no precedent on the subject appears to exist—as one federal district court found during a criminal trial that concluded just as the pandemic hit New York, when the court permitted one under-the-weather juror to deliberate remotely. (The Spanish-flu era of 1918–19 provides little guidance, as criminal law had a much smaller footprint at the time, and the Supreme Court had not yet delineated many of the constitutional rights applicable to criminal proceedings.)
But that does not mean courts are entirely free to improvise. As the United States Supreme Court recently stated in Ramos v. Louisiana, striking down Louisiana’s non-unanimous jury rule, when the Founders selected the phrase “trial by an impartial jury,” they surely thought that it “carried with it some meaning about the content and requirements of a jury trial.” The Court found that jury unanimity was one of those requirements, because it was established as a crucial common-law right by the 14th century in England and was considered essential in the American states when the Sixth Amendment was drafted and ratified. Rejecting Louisiana’s argument that its rule (requiring 10 out of 12 votes to convict) was sufficient to protect any interests promoted by the jury-trial right, the Court stated that the jury-trial right was not subject to “cost-benefit analyses” or “functionalist assessment.” Because the right to jury trial as conceived by the Founders “may serve purposes evading our current notice,” the Court said it could not “balance it away aided by no more than social statistics.”
What, then, to make of the possibility of jurors hearing evidence or deliberating remotely? There have been a few Zoom jury trials in civil cases already, and one Zoom criminal jury trial in Texas for a low-level misdemeanor traffic-ticket case. Could this be widely adopted for more-serious cases? That appears to be unlikely—for now. Virtual, after all, seems qualitatively different from socially distanced. Surely the Founders would not have contemplated such developments, just as the Founders would not have contemplated numerous other adaptations that have taken place during the pandemic, such as Congress voting remotely. While those other work-arounds may well be constitutional, Ramos suggests that similar innovations may not be in the context of the Sixth Amendment’s guarantee of a specific individual right. That is so despite the fact that such variations may well be justified by substantial public-health interests, and even if social science were to suggest that they are functionally comparable to traditional processes (which they may not be).
Permitting jurors to receive evidence and deliberate remotely poses other constitutional problems. The Supreme Court has long held that a trial by an “impartial” jury requires a jury that has not been tainted by exposure to extrajudicial information—meaning evidence not admitted in court. In the digital era, when jurors in the jury room have smartphones, courts have struggled to enforce this aspect of the Sixth Amendment, even before the pandemic hit; courts have sometimes opted to take custody of jurors’ electronic devices, and to sequester jurors as necessary. But if jurors participate in the trial remotely, such interventions are unavailable. Remote jurors, like jurors in the courthouse, might well follow judicial orders not to access media or speak with others about the case. In general, we rely on jurors’ fidelity to such instructions. But the risks of disobedience or inadvertent exposure seem heightened when jurors are in their home and must use electronic devices to take part in the judicial proceedings.
Conversely, if the jury participates in the traditional manner in the courthouse but is distracted or rushed by health concerns, is that the “impartial” jury to which a defendant is entitled? Even in the best of times, many people do not relish jury service and try to get out of it. Recent polls and summons-response rates suggest that COVID-19 fears are causing potential jurors to seek to opt out of service. If jurors blame the defendant—consciously or not—for increasing their exposure to the coronavirus by requiring them to come to court, doesn’t that raise the risk of unfair prejudice, meaning that jurors will base their verdict on factors unrelated to the evidence? Many courts that are restarting criminal jury trials are liberally excusing jurors who express health concerns, but what if some courts do not, or jurors fail to articulate their concerns? What if disparities in how COVID-19 is experienced and perceived by different groups (racial, socioeconomic, and political) compromise the constitutional requirement that the jury represent a fair cross section of the community? And, even as we all grow accustomed to masks, what effect will defendants’ mask wearing throughout the trial have on jurors’ ability to empathize with them and honor the presumption of innocence? Convictions have been overturned when defendants were forced to wear prison garb rather than civilian clothes or were shackled during trial without adequate cause. Jurors are constantly evaluating a defendant during trial. If masks hide a defendant’s smiles and other expressions, or subtly suggest that the defendant is dangerous, how will jurors’ judgment be affected?
Even selecting jurors fairly may be impossible. By law, both parties are entitled to participate in the selection process and strike potential jurors. Lawyers often base their peremptory strikes—i.e., those not based on cause—on information provided by potential jurors, not all of it expressly. For example, a lawyer might strike a member of the jury venire on account of a newspaper the potential juror is carrying or because a lawyer thinks the person gave the defendant a dirty look. Is this kind of information sufficiently available when potential jurors are wearing masks or are interviewed remotely as courts are doing in New Jersey? If not, is that constitutionally significant?
Then there is the problem of public access. The Sixth Amendment provides that the trial by an impartial jury to which a criminal defendant is entitled must be “public.” Although this right is primarily for the protection of the accused—to discourage misconduct through the disinfectant of outside scrutiny—the public has an independent right of access under the First Amendment. The public’s First Amendment right applies not only to the trial itself but also to other significant stages of criminal proceedings, including jury selection, hearings on evidentiary motions, guilty pleas, and sentencings. Traditionally, this has meant that the public has the right to be present in the courtroom while these matters are heard. Courtrooms can be closed or access-limited, upon a showing of a sufficient countervailing interest, such as witness safety, so long as the limitations are no greater than necessary. Thus, courts must be wary of blanket closures and make criminal proceedings available to the public through alternative means, such as a live feed at a dedicated room in the courthouse with socially distanced chairs, or a password-protected Zoom session. (Prosecutors and victim advocates have pushed back against proposals to live-stream trials on YouTube or other generally available channels, citing concerns about retaliation against witnesses.)
Precedents suggest that such measures would survive constitutional challenges in locations still hit hard by the pandemic, where public-health interests are at stake, but only if supported by specific findings by the court regarding their necessity. However, the adequacy of “live feed” public access to trials is an issue on which little authority exists and that the Supreme Court has never addressed.
Should criminal trials move forward, courts must also address defendants’ rights under the Sixth Amendment’s confrontation clause. That clause provides that in any criminal trial, the defendant has the right “to be confronted with the witnesses against him.” In recent decades, the Supreme Court has interpreted this clause strictly to require in-person testimony, subject to cross-examination, with very limited exceptions. Would testimony by a witness wearing a mask satisfy the confrontation clause, if it interfered with the jury’s ability to assess the witness’s demeanor? What if the mask were clear? Would remote witness testimony suffice? These are undecided questions that, according to some precedents, might turn on the necessity of the departure from the norm. But the Supreme Court’s more recent cases have suggested that the confrontation clause is not subject to such a cost-benefit analysis and is more absolute in its requirements. Decisions to allow witnesses to testify wearing masks, or to testify remotely—especially if made categorically rather than case by case, depending on the witness’s particular circumstances and COVID-19 rates in the judicial district—are thus particularly risky, and could lead to unconstitutional convictions.
Finally, the Sixth Amendment provides defendants with the right to the “assistance of counsel” in their defense. In court, defense counsel and their clients might well have to practice social distancing and wear masks, limiting their ability to communicate privately. Outside court, defense counsel may be understandably concerned about the safety of visiting with their clients, especially those held in jail. Some lawyers undoubtedly will feel pressure to sacrifice safety in the name of professionalism. Is it fair to ask that of them? If they do not, will defendants be deprived of the effective assistance of counsel?
Given all the foregoing concerns, courts have had good reason to hold off on criminal jury trials, and restart them slowly and carefully. But for how long can that continue without running afoul of defendants’ right to a trial that is “speedy”? Neither the text of the Sixth Amendment nor the cases interpreting it specify a particular interval of time within which a trial must be had, and delays of several years have been upheld. In general, courts have rejected speedy-trial challenges as long as there was a good reason for the delay. Public-health concerns are a quintessential good reason.
But at some point, even a public-health crisis might push the limits of what the speedy-trial clause will allow. The scale of the COVID-19 crisis for the courts is unprecedented. Moreover, even before the pandemic, many court systems were already struggling to keep up with their dockets. As the crisis fades—which, one hopes, eventually it must—courts will be faced with an extraordinary backlog of criminal cases. At that point, speedy-trial concerns will reach their zenith. Courts will likely impose a triage system, prioritizing those cases in which a defendant has been detained the longest, pending trial. But that may not be sufficient to meet the speedy-trial claims of every defendant who has been charged since the pandemic began, as well as those who were already awaiting trial when the system ground to a halt.
There are no perfect solutions here. Courts are trying to deal with extraordinary circumstances and defendants face hard choices about which of their rights to prioritize. Given the prospect of an indefinite wait for a traditional jury trial, many defendants will likely elect to resolve their case without one. Resolution not only ends the uncertainty of the future, but also allows defendants to start serving their sentence, if any, and typically in a prison with conditions superior to those of most pretrial jails. Thus, defendants may request a bench trial or consent to a trial in which some or significant portions of the proceedings are conducted remotely. Others will plead guilty, especially if prosecutors—cognizant of the looming backlog of cases—offer favorable plea bargains.
A few defendants might even agree to a fully remote jury trial, which some judges and scholars have suggested should be on the table for serious offenses. Courts have long held that the large majority of constitutional rights are waivable, including the right to a trial. But on rare occasions, courts have deemed a particular right so fundamental that allowing its waiver would undermine society’s faith in the fair administration of justice. For example, although most defendants may waive the right to conflict-free counsel, the Supreme Court has held that in some circumstances it cannot be waived, because the conflict is so severe. Could any of the various constitutional criminal-procedure rights implicated by COVID-19, in some circumstances, fall into that category? No one knows, and this uncertainty (along with technical challenges, concern about the other legal questions discussed above, and a sense that some measures, even if constitutional, may be unwise) explains why courts are proceeding so cautiously.
However, if the pandemic continues into the next year and more cases build up in the criminal-justice system, pressure will grow to move those cases forward through whatever means are available. The constitutional challenges will follow. And that could be a whole new crisis left by COVID-19 for us to deal with, for decades to come.