How the Covid Crisis Is Affecting and The Legal System In a BIG Way

Seven months into the pandemic, courts around the country are beginning to restart their criminal dockets. But the practical obstacles are staggering.

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.

[Joshua Matz: The coronavirus is testing America’s commitment to people’s constitutional rights]

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.

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NOTE: This may help you in a current case to use as an appeal-able issue. We will discuss these kind of issues on upcoming calls.

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