Virtual Hearings Due to Covid-19 Change the Game in America's Courts
Due to the Covid-19, virtual hearings have begun being offered for some court cases to lower the risk of transmission. However, this is not exactly effective for all. Depending on the severity of a case, this leaves some at an unfortunate drawback.
““For 42 years it’s been theater, and now it’s film,” Gar Blume, an Alabama-based attorney, said about courtroom practice.”
The courtroom can be likened to that of a movie or play. When entering, you are transported into a world of actors, judgment, and people all working to play their “part” in the hearing process. You have the judge (the director), the jury (the audience), the public (the chorus), and everyone testifying (the actors). The podium where everyone speaks sets the stage for how the audience is going to react to the performance of those involved in the case. Will they rule guilty? Not guilty? Manslaughter? Misdemeanor? All of this depends on the “performance” of those involved in the case and it is a crapshoot, no matter the topic.
“The performance is a series of monologues and inquiries, where it’s clear whose side everyone is on; and body language, appearance, and demeanor are just as important as the words said.”
With the recent Covid-19 pandemic, the whole court system has changed. People are no longer in that “movie scene” setting, but rather stuck at home on a video call, on their couch. This may sound like a lot less pressure, possibly even creating for a lot less anxiety for those afraid to face an entire courtroom of people with their case. But at the end of the day, this new shift has not been completely positive. This new shift in the court system, for the time being, has created for disadvantage and concern amongst certain people and their court cases.
“[There is a] caste system now via court,” said Rob Mason, director of the juvenile division for the Public Defender’s Office in Florida’s Fourth Judicial Circuit. “When you call in, we’ve got people that are on laptops or desktops, and are perfectly centered, and the audio is great and everything is perfect. Then we have some people that are calling in on their cellphones; then we have some people that only call in on their [home] phone and so suddenly we have this different class of people. I can’t help but think of the implicit bias between prosecutors and judges and even defenders as to how you look at these people.”
“In a live courtroom, it’s an open space and body language is critically important, and spacing is critically important,” said Blume, who co-owns a firm that specializes in criminal, juvenile delinquency, and parent dependency defense. “Now the first set of things we started worrying about was, ‘OK, where are we going to put the camera? Does it need to be up? Does it need to be down? Does it need to be on the side? How do we adjust the camera?”
This type of remote hearing can create confusion amongst courtroom members. When you are at home on your couch, it is hard to take a hearing as seriously as when you are faced in front of a judge and a courtroom of people. In the case of the virus, this definitely contributes to minimizing the spread, which is a positive. But one must ask the question, is it also contributing to the overall accuracy in the rulings of court cases? Is the appointed jury truly basing their decisions on that of the court case or are they anxious to get off their video call so that they can binge watch their next favorite Netflix episode?
This is not the first time we have seen remote hearings with court cases. In the early 2000s this was seen with juvenile court cases. It was not effective due to the fact that the juveniles in question were often confused and ended up not taking the court process as seriously as they should. This also might have resulted in lighter consequences in certain cases on the part of the jury. It is a coin toss for how long this method will hold up being effective in the legal world.
“People in criminal cases and in juvenile delinquency cases, which are quasi-criminal in nature, all have Sixth Amendment rights,” Blume said. “The confrontation clause guarantees defendants the opportunity to a face-to-face confrontation, or the right to confront their accusers or witnesses against them in front of the court.”
“The other [constitutional challenge] is basic due process,” he said. “Due process of law includes the right to be present in person whenever the defendant’s presence has a … reasonably substantial relationship to the defendant’s opportunity to defend against the charge.”
Not all court cases are being heard at this time, which also creates a problem. Only the more “serious” cases are being brought to trial which brings others who truly need assistance as well into a tough position.
“Now that it’s all over the phone or virtual, it feels more detached, it feels more confusing. Clients are sharing a lot of their frustrations and they don’t know what’s happening,” said Suah Kim, a social worker in the family defense practice of the Bronx Defenders in New York City. “It feels like to them everything is happening without them; it feels like everyone is making decisions [about the custody of their child] without them, without anyone listening to them, hearing them, and taking the time to understand their story.”
This new virtual process also proves to be problematic in terms of attorney/client communication. During a typical courtroom proceeding, an attorney and client may whisper to each other or write notes on what their next strategy should be. In a virtual case, this process is stripped from the client. If a client and his or her attorney needs to speak privately, the only way of doing so is by stopping the court case completely in order for the client and attorney to speak.
Some attorneys have been fighting this new virtual process so hard that they are refusing to take cases due to the difficulty. A criminal defense attorney in Miami actually went as far as to show up to court in a hazmat jumpsuit, to fight the new system. If this doesn’t show that people are truly over 2020, I don’t know what does.
Another challenge is the new sanitation standards. It is hard to accurately hear people behind their masks and providing for plexiglass partitions everywhere, proves to be challenging. For some, the process has been an easy transition due to the fact that they do not have to leave their home.
“It’s been, I would say, a form of a circus, and it’s another level of lack of empathy regarding how we are treating clients,” Rajaraman said.
It seems for the time being that this may be the future of our court system until Covid-19 is in our past.