Covid-19 has presented many challenges for the last year. People have had to face many hardships and difficult choices because of stay at home orders and social distancing requirements. Mask mandates have also been something that many people have found hard to accommodate. Businesses of all industries have felt the strains of the pandemic as well, and many have closed as a result.
No one seems to be talking about the court system during the pandemic.
The court system has all but shut down and it is causing problems for both civil and criminal cases.
*Below is a video going over our thoughts on the matter.
Criminal Court in a Pandemic Setting
Criminal court cases are facing the most disruption due to the pandemic. Many of these issues are unprecedented, and the court system is slowly responding to the issues.
The first issue is scheduling hearings. Most courts were backlogged before the pandemic, and now it is even worse. People charged with crimes who have been unable to make bail are waiting months and months to go before the court, and this is a clear problem when it comes to the “speedy trial” clause in the Constitution.
The prosecutor’s office in many areas have been slow to respond to this problem and have retained very high bail amounts. Many offices are also refraining from offering deals to help move cases through the system without a trial. It is a deadlock between prosecution, defense, the accused as well as the victims are being hurt by the process. Even getting voir dire or jury selection is becoming impossible because people do not want to sit next to others, be in a jury room or courtroom with them either. It’s very hard to get a jury of your peers right now for these reasons.
The next issue that has perhaps caused the most problems is the right to face your accuser. In a pandemic setting, most courts are trying to hold court via Zoom call or similar video setting. This presents the following problems:
- Many witnesses are wearing masks during their testimony because they are sitting close to the attorney or the person monitoring the session
- You can only see the witness or accuser from about mid-torso up in the video call, eliminating the jury and the defense the right to read their body language while giving testimony.
- You do not get the same type of connection between any of the parties when they are all interacting by video instead of in person.
- The jury can become easily distracted during testimony because of the length of time these sessions take and most people do not respond well to staring at a computer screen for long periods of time without moving.
- Many witnesses cannot make a positive identification of the accused because they were either wearing a mask when the event occurred, or are required to wear a mask during the court session.
- The use of masks and other personal protective gear has also made police cam footage almost inadmissible because you cannot clearly identify who is behind the mask or shield. Additional issues have also arisen from remote litigation that is causing the court system to slow down even further so that they can evaluate the situation and ensure that the rights of all parties are protected under these circumstances.
The Future of Remote Litigation
At this time it appears that remote litigation will continue for at least another year. No one is sure how much longer the pandemic will continue or how much longer social distancing will be required. Until then, the courts will have to continue to move slow to protect all involved.
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