Photo montage by Cathy Zlomek

Maintaining an indefinite pause on jury trials is a tem- COVID-19’s Next Victim? porary response to a global pandemic, not a long-term solution. State courts handle roughly 106,000 trials per year, The Rights of the Accused tens of thousands of which have already been suspended.4 Likewise, many defendants facing criminal charges remain in custody, possibly endangering their right to a speedy trial and further risking exposure to the coronavirus.5 As stay-in- place orders ease and public spaces begin to reopen, jury tri- n May 24, 2020, Benjamin Netanyahu walked als will have to resume in some capacity. into a courtroom in Jerusalem to face charges When this occurs, safety from infection will rightly be Oof corruption. The occasion was momentous at the forefront of everyone’s mind. Toward that end, judges by any measure — Mr. Netanyahu became the first sit- have been developing innovative solutions to protect partic- ting Israeli prime minister to stand trial. But despite ipants, especially jurors. Plans have included, inter alia, these historic charges, the media appeared equally fix- requiring masks, moving trial and deliberations to over- ated on what Mr. Netanyahu was wearing. Why? He large rooms to ensure social distancing, reducing the size of walked into court donning a blue surgical facemask, juror pools, and/or conducting proceedings via video con- consistent with public health restrictions for the coro- ferencing platforms (e.g., Zoom or Microsoft Teams).6 navirus.1 And Mr. Netanyahu was not alone. All of the But while safety is imperative, the integrity of the jury lawyers and judges in attendance also wore masks, system is also sacrosanct. Trials have operated roughly the while the three-judge panel positioned themselves same way since the founding of this country — and for behind a glass divider.2 Few have considered how these very important reasons.7 Allowing criminal defendants to changes will impact Mr. Netanyahu’s trial, but none look their accusers in the eye, for instance, serves the truth- can deny that the stage for one of the biggest trials in seeking function of cross-examination. Likewise, packed the world had been fundamentally altered. courtrooms open to the parties’ friends and families, as This is no isolated incident. The COVID-19 pan- well as the press, promote systemic fairness. Limiting not demic is transforming the world’s legal institutions only who may view the proceedings, but also how they are with alarming speed. In the United States, many federal viewed, could fundamentally alter the judicial system. and state courts have indefinitely suspended most in- As courts experiment with new procedures, they must person proceedings, including a near-total shutdown of take affirmative steps to protect defendants’ civil liberties — criminal and civil jury trials, to limit the spread of the especially in the criminal context. As a threshold matter, coronavirus. In view of health concerns, some trials while “trial by video” may be permissible in civil cases, it is were even halted mid-testimony, with judges declaring wholly insufficient for criminal cases. Due process concerns mistrials to limit the risk of infection.3 would likely render a digital jury trial unconstitutional in

BY DUBIN RESEARCH AND CONSULTING

22 NACDL.ORG THE CHAMPION the face of government prosecution. A Figure 1: Overview of State Jury Trial Restrictions long line of cases establishes defendants’ right under the Sixth Amendment to be physically present. Thus, video conferenc- ing technology cannot replace criminal jury trials. What is needed, then, is a nuanced discussion about how best to resume in-person proceedings. It would be naïve to dismiss the difficulties of restarting face-to-face jury trials. Participants must feel absolutely comfortable and safe in all aspects of the proceeding. Myriad COVID-19’S NEXT VICTIM? THE RIGHTS OF ACCUSED issues must be considered — including voir dire, procedures for deliberation, effective advocacy, providing public access, speedy trial rights, and enforc- ing the basics of social distancing.8 At minimum, the pandemic will make it difficult to obtain a fair cross-sec- tion of the community, as required by the Sixth Amendment. In a recent study con- packed into crowded elevators, hallways, their cities in phases — courts have ducted by Dubin Research and and courtrooms. In New York City, all 33 begun to reopen in parallel. For exam- Consulting (“DRC”), 74 percent of of the city’s courthouses remained open, ple, counties in rural Mississippi that respondents indicated that they would be and people kept showing up for work.9 have two or fewer reported deaths concerned about their health if called to And there were good reasons for doing attributed to COVID-19 mailed jury serve as a juror and would be anxious so. Closing a court is not the same as summonses for trials beginning the about being in close proximity with other closing a restaurant or a school. People’s week of May 18.14 Likewise, some courts potential jurors. Given these concerns, liberties and constitutional rights would in California, such as the Contra Costa high-risk (or simply risk-averse) individ- be at risk without a functioning judici- County Superior Court, opened their uals will undoubtedly self-select — refus- ary to enforce them. doors on May 26.15 Even the Durst trial is ing to respond to jury summonses for COVID-19 began to derail court expected to resume on July 27.16 fear of infection. The judiciary must care- proceedings in mid-March 2020. On Figure 1 details the current status fully consider these consequences and March 16, a Manhattan judge declared of each state’s restrictions on jury tri- take active steps to mitigate them — a mistrial in the case of a doctor als. It indicates that the majority of before rushing to resume criminal trials. accused of sexual abuse after his states will have lifted jury trial restric- It is time to formulate a comprehensive defense attorney arrived at court with tions by July 2020. plan for conducting criminal jury trials in coronavirus-like symptoms.10 The judge The question on everybody’s mind, a post-COVID-19 world. initially tried to continue the proceed- then, is how courts plan to contain the This article proceeds in four sec- ings by letting an attorney examine a coronavirus. The following section tions. Section I describes how courts witness via speakerphone from a differ- explores the historic precedent for any have addressed, or have proposed to ent room in the courthouse, but ulti- such judicial response. address, the pandemic to date. Section II mately announced, “Jurors, this case is explains how conducting trials by video over. I have to declare a mistrial. We B. Historic Responses would violate criminal defendants’ core need a fair trial. We need a lawyer who to Pandemics rights, based upon constitutional prece- can represent his client.”11 That same The courts’ actions in response to dent and human psychology. Section III day, as COVID-19 cases began to sky- this pandemic are not entirely without explores the reality of resuming in-per- rocket, New York’s Office of Court precedent. The 1918 influenza pandemic son trials during a pandemic and iden- Administration issued an indefinite is the closest analog — it was the most tifies a host of obstacles that courts moratorium on trials and grand jury severe pandemic in recent history. must first address. Finally, Section IV proceedings. But by then, judges, court Nicknamed the “Spanish flu,” the provides a set of core principles that personnel, jurors and litigants had con- influenza was caused by an H1N1 virus should guide the operation of jury trials tracted the virus, and sadly, in some with genes of avian origin. At its worse, during these challenging times. cases it claimed their lives.12 the Spanish flu infected 500 million peo- This same pattern repeated across ple worldwide, which at the time was I. The Current the country, as lockdown orders were about a third of the Earth’s population. issued and cases were stopped in their Although there is no universal consensus State of Affairs tracks. For instance, the pandemic regarding where the virus originated, it forced Los Angeles officials to close the spread worldwide from 1918-1919.17 A. The Pandemic Halts Court county’s courthouses, halting the mur- Not all U.S. courts appear to have Proceedings and Trials der trial of Robert Durst (the heir to a closed in response to the 1918 influenza Even as the pandemic was on the New York real estate empire) after open- epidemic. One historian noted that in horizon in early March 2020, the courts ing statements had already been given.13 New York in October 1918, “New proceeded with business as usual. Jurors, Now, as states begin to inch their Yorkers caught spitting were usually litigants, judges, clerks, and lawyers all way towards normalcy — by opening rounded up and brought before courts

NACDL.ORG MAY 2020 23 Figure 2: Open-air police court being held in Portsmouth Square, San Francisco With respect to proceedings necessitating jurors, certain courts have also begun launching pilot pro- grams to determine whether technolo- gy can meet their needs. For example, on May 14, New Jersey launched a pilot program to hold virtual grand jury proceedings via Zoom in Bergen and Mercer counties.29 Similarly, on May 22, Florida Chief Justice Charles Canady ordered the creation of a pilot program for civil jury trials via remote technology.30

D. How Courts Plan to Resume Jury Trials Federal and state courts that have announced plans to resume jury trials generally fall into two categories. The first approach virtualizes the entire trial experience. The second approach favors in-person jury trials — but with enhanced safeguards intended to con- in large numbers,” including over 130 Thus, the modern judiciary had tain the virus. A representative sample men in a single day who were fined $1 little precedent to guide its response to of each approach is presented below, for violating anti-spitting laws.18 COVID-19. The next section outlines based on current information. Meanwhile, other courts appear to have how courts in various jurisdictions introduced precautionary measures in have chosen to proceed. i. A Virtual Trial — Texas response to the epidemic. It was believed Texas has emerged as a leader in that fresh air helped counteract the C. How Courts Have Responded embracing remote video technology by spread of the virus, so some court pro- to the Pandemic to Date being the first state to conduct a civil ceedings were held outside.19 Figure 2, an bench trial and jury trial on the plat- image in the National Archives, shows i. Telephonic Hearings form. On April 22, Harris County Judge one such assembly in San Francisco.20 The inability to resume court pro- Beau Miller held a one-day bench trial The Supreme Court, on the other ceedings in person forced courts across in an attorney fee dispute case.31 The hand, postponed scheduled arguments the nation to embrace technology in ways proceeding was livestreamed on the for October 1918 in response to the they never had before. The leading exam- court’s website. Judge Miller noted that Spanish flu epidemic for about a ple is the U.S. Supreme Court, which there had been more than 2,000 virtual month.21 The Court also restricted who broke from tradition by conducting argu- audience members throughout por- could be admitted into the courthouse, ments via conference call.27 Within the tions of the day. denying entry to all persons but lawyers.22 federal court system more broadly, tele- Less than a month later, the state The Court had previously short- conference hearings have been encour- charted new territory by using remote ened its argument calendars in August aged in some jurisdictions (e.g., Eastern video to conduct a civil jury trial.32 A 1793 and August 1798 in response to yel- District of New York, Southern District of Collin County summary jury trial low fever outbreaks.23 During the 1798 California, and Northern District kicked off with two state court judges epidemic, other courts continued to of Illinois), while outright required and three attorneys vetting 25 hold arguments but were moved to in others (e.g., Eastern District of prospective jurors.33 The presiding courthouses outside of the epicenters of Pennsylvania, District of Maine, and judge instructed jurors that, despite the outbreaks.24 This included the Northern District of Florida). the use of Zoom, they were still in Philadelphia circuit court, which held court and could not Google informa- session in Norristown, north of the city. ii. Videoconference Hearings tion or use their phones. He also While precautionary measures and Videoconferencing platforms have warned jurors that they might need to court closures have historical authority, been adopted in an effort to restart the ask family members to leave the room. COVID-19’S NEXT VICTIM? THE RIGHTS OF ACCUSED many of the constitutional rights justice system. Most recently, in the For voir dire, the panel was divid- afforded to defendants today had not U.S. District Court for the District of ed into two groups. The attorneys yet been defined by the Supreme Court. Massachusetts, Judge Nathaniel M. questioned 12 jurors, while the One historian noted that the Bill of Gorton held a remote video proceed- remaining 13 jurors were placed in a Rights was only beginning to be lever- ing during which actress Lori Loughlin virtual break-out room. During this aged in the 1920s, having spent nearly and her husband, Mossimo Giannulli, process, the attorneys asked prospec- 130 years in relative obscurity, rarely pled guilty in the notorious college tive jurors to raise their hands to show cited by the Supreme Court.25 In fact, in admissions case.28 However, the hear- where they stood on relevant issues. 1918, the Supreme Court had only ing, which was conducted over Zoom, They were then called upon to discuss recently approved of “drawing of a jury was not without hiccups. The judge their answers further. Once the voir from a part of the district, rather than had to remind speakers to mute or dire process was complete, which took from the entire district.”26 unmute themselves. 45 minutes, the judge asked the parties

24 NACDL.ORG THE CHAMPION to “approach the bench.” In the world sonnel will be screened for the virus and resumed jury trials with precau- of Zoom, this meant that the judge and asked to self-report symptoms.37 tionary measures.41 These include created a new break-out room for liti- Thus far, the court has not indi- mandated face coverings at all times gants to communicate without the cated whether jury deliberations will while inside the courthouse, taking the jurors hearing. Once they returned to be conducted in traditionally designat- temperature of anyone entering the the main Zoom meeting, the trial pro- ed areas, what protocols will be enact- court and denying entry to those who ceeded with the 12 jurors on the panel. ed around jurors handling evidence, or have a temperature of 100 degrees or The trial’s only noted hiccup was when if the number of people that can higher, admitting no more than 50 a juror wandered offscreen during a observe the proceeding will be limited prospective jurors in the assembly break and could not hear the judge (e.g., potentially barring the family of room, and excusing potential jurors calling him back.34 the defendants from attending the exhibiting COVID-19 symptoms or The virtual interface mirrors the trial). While the Southern District of those who are high-risk (e.g., over 60 configuration depicted in Figure 3, with New York has not announced whether years of age or immunocompro- COVID-19’S NEXT VICTIM? THE RIGHTS OF ACCUSED all potential jurors visible simultaneous- it will adopt a videoconferencing plat- mised).42 The court’s press release also ly alongside the litigants, attorneys, and form for virtual trials, prior to New states, “No Nonessential Parties. Due presiding judge. York City’s PAUSE order being issued, to social distancing limitations, indi- District Judge Alison Nathan took viduals who are not essential to Court ii. A (Modified) In-Person the unprecedented step of allowing an matters should not accompany parties Trial — New York ill juror to deliberate via FaceTime.38 to Court for any matter or case type.”43 The Southern District of New York is Judge Nathan noted, “[W]e are The press release makes no mention as undertaking the necessary transformation in extraordinary circumstances and to whether courtroom proceedings to resume in-person jury trials, although given the situation it is appropriate to will be broadcast to the public.44 no reopening date has been announced. proceed thusly.”39 California’s Monterey Superior Chief Judge Collen McMahon announced With respect to the New York State Court, which will open in June, that plexiglass will be the norm — court- courts, Chief Judge Janet DiFiore announced on its website that “fewer rooms will be refurbished so that witness- described several safety measures that trials will be in session at any one time es testify behind a clear plastic barrier. will be implemented. These include to reduce the number of people in the Likewise, jurors will be seated further the mandatory use of masks by all per- courthouse.”45 With respect to jury apart in the jury box in accordance with sons entering the courthouse, social deliberations, the court announced social distancing restrictions.35 distancing protocols, strict cleaning that deliberations will occur in the Social distancing will also be and sanitizing standards, and the courtroom rather than in the tradi- enforced in the security line with dis- installation of plexiglass partitions in tional jury deliberation room. In order tancing indicators on the floor and strategic courthouse locations.40 to adhere to social distancing guide- limits on the number of people allowed lines, the court also announced that in the elevators. District Executive iii. Other Approaches “members of the public may be pre- Edward Friedland added that there will A handful of courts in the country cluded from attending jury trials in be limits to the number of lawyers in recently resumed in-person opera- person,” while adding that public call- the courtroom wells and who can tions. For example, on May 26, in lines have been created for each observe.36 In addition to masking and California’s Contra Costa County courtroom so that members of the following hygiene protocols, court per- Superior Court reopened all locations public can call in and listen to trials.

Figure 3: Representative User Interface (Zoom)

NACDL.ORG MAY 2020 25 Other jurisdictions have found that cases, they cannot substitute for in-person This core value serves dual purposes. First, they need to step out of the courthouse in proceedings when applied to criminal facing one’s accusers deters false accusa- order to safely conduct a jury trial. For defendants. The following section explores tions, as it is far more difficult to lie when example, in northwestern Montana, a these fatal constitutional shortcomings. looking directly upon the accused.59 Sec- school gym will be transformed into a ond, face-to-face confrontation enables courtroom, as it is the only place in the II. Virtual Criminal Trials jurors to “examine the demeanor of the county where 100 prospective jurors can witness as the witness accuses the defen- gather while adhering to social distancing Cannot Overcome Key dant, as well as the demeanor of the defen- guidelines.46 This will be the home to a Constitutional Hurdles dant as he hears the accusations. …”60 domestic-assault trial set to begin on June To keep the wheels of justice turn- This, in turn, enables jurors to more prop- 9. Whether this venue will still be used ing, most courts have been conducting a erly assess credibility.61 when school resumes remains to seen. host of proceedings by video or telecon- Whether the Confrontation Clause The Supreme Court of Arizona even ference, including arraignments, guilty forbids virtual trials represents new issued an order limiting peremptory chal- pleas, and sentencing, with the consent terrain. No authority exists — in the lenges to two per side in order to minimize of the defendant. This is a significant federal Constitution or most state ana- the size of the jury pool. Specifically, it change for the legal system, where long- logues — that outright prohibits the modified procedural rules “to afford liti- standing rights entitle defendants to be practice. On the other hand, no gants only two peremptory strikes for charged, tried, and judged by people authority explicitly permits them, potential jurors per side in all civil and they can look in the eye. either.62 Thus, in assessing whether an felony cases tried in the superior court, While no court has yet conducted a appellate court would affirm a verdict and one peremptory strike per side in all full jury trial remotely, there have been arising out of a remote video proceed- misdemeanor cases.”47 By limiting the clear moves in that direction. For ing, we must consult analogous prece- number of jurors released on peremptory instance, in a statewide order staying all dents involving videoconferencing. grounds, the court hopes “to reduce the jury trials, Chief Justice Tani G. Cantil- number of citizens summoned to jury Sakauye of California noted, “Courts may i. The Supreme Court’s duty” and, therefore, the risk of infection. 48 conduct such a trial at an earlier date, Guiding Principles Most recently, the U.S. District upon a finding of good cause shown or The Supreme Court encountered the Court for the Northern District of Texas through the use of remote technology, issue of live, audiovisual testimony on announced plans to resume in-person when appropriate.”55 Likewise, the U.S. two occasions. In Coy v. Iowa, the jury trials, including trials against crimi- District Court for the Southern District Supreme Court reversed a sexual-assault nal defendants. U.S. District Judge James of New York recently began allowing conviction, concluding that the lower Wesley “Wes” Hendrix scheduled a jury grand jurors to convene and deliberate court’s decision to permit two child wit- trial in United States v. Santos, which is via video conference.56 nesses to testify behind a large screen set to begin on June 15, 2020, in the However, while “jury trial by video” where they could not see the defendant Abilene courthouse.49 The case involves a may be permissible in the civil context, it violated the defendant’s confrontation felony charge for attempted enticement raises grave constitutional concerns when rights. In reaching this conclusion, Justice of a minor.50 In anticipation of trial, applied to criminal proceedings. The Scalia, writing for the majority, stated: Judge Hendrix issued a Notice of Trial arguments against remote testimony in “We have never doubted … that the Procedures, which enumerates various criminal trials are plentiful. Remote testi- Confrontation Clause guarantees the safety measures intended to mitigate mony may violate defendant’s right to be defendant a face-to-face meeting with COVID-19. Among other things, the confronted with the evidence against him witnesses appearing before the trier of court will take jurors’ temperatures, dis- or her because the testimony is not “face- fact.”63 He further stated that “the irre- infect common spaces, and ensure social to-face.” Remote testimony cannot ensure ducible literal meaning of the Clause” is distancing.51 Regarding the latter proto- truthfulness to the same extent as requir- “[the] right to meet face to face all those col, the court will conduct voir dire in ing the witness to testify live before the who appear and give evidence at trial.”64 the Lubbock County Central Jury Pool defendant. Remote testimony limits the According to Scalia, “there is something building because it is large enough to information available to defendants when deep in human nature that regards face- permit the jury panel to remain at least assessing juror bias. And remote testimo- to-face confrontation between accused six feet apart at all times.52 Likewise, jury ny, as opposed to live testimony, does not and accuser as ‘essential to a fair trial in a deliberation will “occur in a large room provide the court and jury with the same criminal prosecution,’”65 in that a witness to permit social distancing.”53 The court opportunity as does live testimony to “may feel quite differently when he has to will also require participants, including assess the demeanor and truthfulness of repeat his story looking at the man whom witnesses, to wear clear plastic face the witness. Each of these issues is he will harm greatly by distorting or mis- COVID-19’S NEXT VICTIM? THE RIGHTS OF ACCUSED shields. Finally, while Judge Hendrix addressed in turn below. taking the facts.”66 He further added, “It is intends to limit seating in the physical always more difficult to tell a lie about a courtroom, a live audiovisual feed will A. Criminal Defendants Have person ‘to his face’ than ‘behind his back.’ be provided — both in an overflow a Fundamental Right to In the former [case], even if the lie is told, room and through remote means.54 Physically Face Their Accuser it will often be told less convincingly.”67 Thus, there exists a wide range of The Sixth Amendment’s Confronta- Despite this strong language, howev- responses to the pandemic, mirroring the tion Clause assures the right of an accused er, the right to confrontation is not relative impact of COVID-19 in each juris- “to be confronted with the witnesses absolute.68 In Maryland v. Craig,69 the diction and the local communities’ result- against him.”57 The U.S. Supreme Court Court held that the Confrontation Clause ing attitudes. But despite these numerous has declared that face-to-face confronta- does not prohibit a state from using one- approaches, one thing is clear. While virtu- tion forms “the core of the values fur- way closed-circuit television to capture al trials may be sufficient to handle civil thered by the Confrontation Clause.”58 testimony of a child witness in a child

26 NACDL.ORG THE CHAMPION abuse case — even where the child cannot The Eleventh Circuit came to the when the requesting party established (1) view the defendant while testifying.70 The opposite conclusion in Yates. There, the “exceptional circumstances for such Court declared that, “[a]lthough face-to- trial court’s decision to allow two transmission,” (2) the transmission used face confrontation forms ‘the core of the Australian nationals to testify remotely “appropriate safeguards,” and (3) the wit- values furthered by the Confrontation from Australia against two defendants in ness was otherwise “unavailable” to attend Clause,’ … it is not the sine qua non of the a criminal trial in Alabama violated the the trial in person.86 The Court declined to confrontation right.”71 Rather, the Court defendants’ Confrontation Clause rights, adopt the proposal, however, for failure to found that the Confrontation Clause notwithstanding that the witnesses were “limit the use of testimony via video “reflects a preference for face-to-face con- beyond the government’s subpoena pow- transmission to instances where there has frontation at trial,” which “must occasion- ers.82 Applying the Craig test, the court been a case-specific finding that it is neces- ally give way to considerations of public found that confrontation was not “neces- sary to further an important public poli- policy and the necessities of the case.”72 sary.” Specifically, it found that, although cy.” The majority appeared to consider a Applying these principles, Craig cre- “presenting the fact-finder with crucial separate statement filed by Justice Scalia, ated a two-part test for determining evidence is, of course, an important pub- wherein he indicated that the proposed whether an exception to the lic policy, … the prosecutor’s need for amendment was of “dubious validity Confrontation Clause’s face-to-face the videoconference testimony to make a under the Confrontation Clause.”87 He requirement is warranted: “[A] defen- case and to expeditiously resolve it are observed that “[v]irtual confrontation dant’s right to confront accusatory wit- not the type of public policies that are might be sufficient to protect virtual consti- nesses may be satisfied absent a physical, important enough to outweigh the tutional rights. I doubt whether it is suffi- face-to-face confrontation at trial only defendants’ rights, to confront their cient to protect real ones.” 88 A court order where [1] denial of such confrontation is accusers face-to-face.”83 The court noted that permits remote video trials during a necessary to further an important public that a Rule 15 deposition in Australia pandemic — while well-meaning — policy and [2] the reliability of the testi- with all necessary parties was a potential would fail to meet this high bar. mony is otherwise assured.”73 With alternative, which would have preserved It must also be noted that the diver- respect to the first prong, Craig added the defendants’ confrontation rights.84 sity of state constitutions means that any the additional requirement of a “case- analogy to the Confrontation Clause will specific” finding of necessity.74 iii. Application to the be inapplicable in some states — espe- Thus, the Supreme Court indicated Coronavirus Pandemic cially states whose highest courts have a willingness to retreat from a literal Precedent suggests that traditional disagreed with Craig. For instance, the application of the Sixth Amendment — constitutional rights (such as confronta- Illinois Supreme Court held, “[W]e con- but only in “narrow circumstances” and tion) can be satisfied or modified if video clude that the confrontation clause of on a “case-specific” basis.75 conferencing satisfies other sufficiently the Illinois Constitution provides that a important interests. Of course, existing defendant is entitled to a face-to-face ii. A Split Amongst confrontation clause jurisprudence did confrontation with a witness.”89 Virtual the Circuit Courts not consider the scope of a national trials are plainly unconstitutional in Lower courts do not agree on how emergency like COVID-19. The chal- such states on separate grounds, irre- to apply the foregoing precedent. Some lenges posed by the virus — i.e., the con- spective of Supreme Court precedent. federal courts view the Confrontation tinued operation of the judiciary during Clause as guaranteeing the defendant a a time when in-person jury trials could iv. Case Law on Unavailability general right to contemporaneously be deadly — are certainly extreme. Provides Additional Guidance cross-examine adverse witnesses.76 Other Keeping participants alive is indeed a Case law concerning the treatment of courts provide a more specific right to public policy of prime importance. sick witnesses provides further guidance. examine witnesses face-to-face in the But Craig requires more. It requires In very limited circumstances, prosecu- defendants’ physical presence.77 Whether that any use of remote testimony be tion witnesses have also been permitted a court is inclined to permit remote individually considered on a “case-spe- to testify remotely due to severe illness. prosecution-witness testimony depends, cific” basis. Categorical assessments are No court has permitted virtual testimony in part, on the level of significance it simply not permitted. Any attempt by a based on the prospect that a witness will attaches to the face-to-face component court to impose a blanket rule, e.g., one become ill in the future. of the Sixth Amendment. which permits virtual testimony in all To the contrary, courts typically For instance, in Gigante,78 the Second cases during the pandemic, would run squabble over the extent and duration of Circuit found no violation of a defen- afoul of this constitutional principle. the illness necessary to evidence unavail- dant’s Confrontation Clause rights when This requirement is no afterthought. ability. For example, in Gigante, Peter the trial court permitted a mob inform- The Supreme Court has rejected attempts Savino, “a former associate of the COVID-19’S NEXT VICTIM? THE RIGHTS OF ACCUSED ant dying of inoperable cancer to testify to deprive defendants of face-to-face con- Genovese family,” was “in the final stages of from a remote location by two-way, live frontation based on such blanket rules. an inoperable, fatal cancer, and was under videoconferencing technology.79 While For instance, in 2002, the Court consid- medical supervision at an undisclosed acknowledging that in-court testimony ered a proposed amendment to Rule 26 of location.”90 After hearing testimony from may have “intangible elements ... that are the Federal Rules of Criminal Procedure physicians, the trial judge found that it reduced or even eliminated by remote that would have explicitly permitted video would be medically unsafe for the witness testimony,” the court rejected the notion testimony in “exceptional circum- to travel to New York for the trial, and that the defendant was entitled to face his stances.”85 Under Proposed Rule 26(b), allowed him to testify via two-way video.91 accuser “in the same room.”80 Instead, the federal courts would have been able to Similarly, in Horn v. Quarterman,92 Court held that the two-way videoconfer- authorize two-way, live videoconferencing the Fifth Circuit allowed remote two-way encing procedure “preserved the face-to- technology from a remote location in testimony by a witness who was termi- face confrontation celebrated by Coy.” 81 criminal cases “in the interest of justice” nally ill, hospitalized for liver cancer, and

28 NACDL.ORG THE CHAMPION COVID-19’S NEXT VICTIM? THE RIGHTS OF ACCUSED

not expected to improve. The Court against him contemplated by the Sixth Though Justice Scalia, among others, found that, “after discussing Birk’s condi- Amendment.95 The defendant’s right is argued that testimony via videoconfer- tion with Birk’s doctor, that use of the also protected, in some situations, by the ence “improperly substitute[ed] ‘virtual unorthodox procedure was necessary, Due Process Clause. The Supreme Court confrontation’ for the real thing required and emphasized that other aspects of the has explained that a defendant has a due by the Confrontation Clause in a crimi- Confrontation Clause were maintained.” process right to be present at a proceed- nal trial,”98 the Craig decision again clari- On that basis, it found that the “state ing “whenever his presence has a rela- fied that the Confrontation Clause does court records reflect that a case-specific tion, reasonably substantial, to the ful- not guarantee criminal defendants an finding of necessity was made. …”93 ness [sic] of his opportunity to defend absolute right to a face-to-face meeting Nobody seriously disputes that wit- against the charge. … [T]he presence of with the witnesses against them.99 Thus, a nesses suffering from the coronavirus a defendant is a condition of due process remote video trial, in the absence of case- and confined to a hospital may be per- to the extent that a fair and just hearing specific findings of necessity, would like- mitted to testify remotely. But current would be thwarted by his absence, and to ly violate a defendant’s rights to be pres- proposals to conduct virtual trials make that extent only.”96 Additionally, the ent for the same reasons as his or her an additional logical leap. They permit defendant’s presence is also often man- confrontation rights. remote testimony for witnesses that are dated by court rule. For instance, Federal not yet sick — but merely risk becoming Rule of Criminal Procedure 43 sets forth ii. Virtual Trials May Impair sick if they provide in-court testimony. the circumstances in which the defen- Defendants’ Ability to Such speculation is insufficient to estab- dant’s presence is required, not required, Detect Juror Bias lish unavailability. and can be waived.97 A defendant’s right to be present at Remote video trials, where the court trial extends to the empaneling of the B. Defendants Have conducts the proceedings over an online jury.100 For instance, Federal Rule of a Right to Participate webinar, raise several issues for a defen- Criminal Procedure 43(a) requires that in Their Own Defense dant’s right to be present. “witness testimony must be taken in A criminal defendant’s right to be open court,” absent “compelling cir- present at his trial is “[o]ne of the most i The Right to Be Present, cumstances” and “appropriate safe- basic of the rights guaranteed by the Like the Right to Confront, guards.”101 This rule has been interpret- Confrontation Clause.”94 This right is Does Not Meet the Craig Bar ed to “afford[] a defendant the right to closely tied to an accused’s right to con- First, there is the question of be present during jury empanelment.”102 front witnesses as he must necessarily be whether appearing by video on a webinar Other jurisdictions adhere to this in the courtroom to obtain the face-to- would qualify as being present within the basic rule.103 The case of People v. face confrontation of the evidence meaning of the Sixth Amendment. Antommarchi is illustrative.104 During voir

NACDL.ORG MAY 2020 29 dire, the judge questioned several throughout the proceeding? Would in certain circumstances,111 but defense prospective jurors at the bench regarding Zoom’s private chat function be suffi- attorneys should be prepared to face personal matters they did not wish to cient? Would a defendant be permitted these questions and many others as the share in open court. These sidebar confer- to text with his lawyer? Or will the courts work out a remote video format. ences took place while the defendant defendant have to interrupt the proceed- remained a few feet away. The defendant ing each time he needs to communicate C. Virtual Testimony Would appealed his conviction to the New York with his counsel? Regardless, requiring Fundamentally Alter the Court of Appeals, claiming that his the client’s access to his or her attorney Psychology of Jurors absence from the sidebar conferences to come through video eliminates many deprived him of his right to be present at of the assurances that come from being i. Moral Suasion on every material stage of trial. The New York in close proximity with one’s lawyer. Jurors and Jurists Court of Appeals agreed and reversed his Likewise, the ability to confer and react The ability to observe the defen- conviction. The court reasoned that: in real-time would be greatly reduced. dant during in-person proceedings helps humanize the defendant to the Defendants are entitled to hear iv. Remote Video Proceedings jury. The importance of how proximity questions intended to search Blur the Line Between Waiver affects empathy is embodied in social out a prospective juror’s bias, and Acceptable Conduct psychologist Stanley Milgram’s land- hostility or predisposition to Still other Sixth Amendment issues mark study on power. In the study, believe or discredit the testimo- may arise when trying to determine Milgram gave his participants the roles ny of potential witnesses and issues of waiver of the defendant’s right of “teachers” and asked them to admin- the venire person’s answers so to be present. The right to be present, ister electric shocks to what they were that they have the opportunity like confrontation clause rights, may be told were other participants (the “learn- to assess the juror’s “facial waived by a defendant’s voluntary ers”). The studies revealed that the clos- expressions, demeanor and absence and/or due to misconduct by er the teacher was to the learner, the less other subliminal responses.”105 the defendant.106 For instance, in Illinois likely the teacher was to continue v. Allen, the Court upheld the forcible administering shocks.112 Accordingly, The prospect of a virtual voir dire, removal of a disruptive defendant from virtual proceedings distance the jurors therefore, raises a slew of concerns. The the courtroom.107 The defendant was from the defendant in a way that may ability to get an up-close view of witness- repeatedly warned that his conduct affect their empathy for him or her. es on video chat might help jurors ana- would result in removal from the court- The dignification of the defendant lyze facial expressions more closely. Or it room and that, if he behaved, he would is also compromised in virtual proceed- could cut the opposite way, inflaming be permitted to return.108 He did so and ings, as it renders the jury unable to see existing prejudices. Even with the advent was returned to the courtroom.109 the relationship between a trial attorney of high-definition videoconferencing According to the Court, “[W]e explicit- and his or her client. Just like the spatial software, participants may be less likely to ly hold today that a defendant can lose distance between an attorney and a wit- detect the nuances of body language and his right to be present at trial if, after he ness that is being cross-examined or the facial expressions when testimony is has been warned by the judge that he distance between the attorney and the transmitted remotely. This will almost will be removed if he continues his dis- jury box conveys meaning, the distance certainly make it more difficult for defen- ruptive behavior, he nevertheless insists between a lawyer and his or her client dants to identify juror bias and impartial- on conducting himself in a manner so conveys meaning as well.113 Virtual pro- ity. In addition, it is unclear whether disorderly, disruptive, and disrespectful ceedings eliminate the ability of jurors remote selection would emphasize one- of the court that his trial cannot be car- to see the close-knit bond that attorneys on-one, face-to-face communication — ried on with him in the courtroom.”110 develop with their clients, which is only showing one potential juror at a But webinar platforms, such as manifested in ways such as the attorney time. Litigants want to be able to see that Zoom, provide the participant with lightly touching the client when intro- panel as a whole in order to observe the tools to control when they can be ducing him or her to the jury panel, reaction of other jurors to whom a partic- heard or seen. The participants can how closely they may sit during a trial, ular question is not pending. mute their lines so that no sound can or how they interact with one another, Indeed, even those courts planning be heard and can also control when whether it be through notes or whisper- to conduct in-person voir dire face chal- their computer’s camera is turned on ing. This bond can convey respect lenges. For instance, it remains to be seen or off. Could a defendant failing to and signal to jurors that the defendant, how the installation of glass dividers keep his camera or microphone on irrespective of the allegations, is worthy between jurors, such as proposed in the constitute a voluntary absence or mis- of that respect. COVID-19’S NEXT VICTIM? THE RIGHTS OF ACCUSED Southern District of New York, would conduct befitting a waiver determina- Overall, the relationship between impact the defendant’s view of each juror. tion? Remote video trials require the defendant and counsel may also suf- Any restriction on the defendant’s ability courts to rewrite the rules of accept- fer through the use of videoconferencing to observe potential jurors would infringe able courtroom behavior. technology, especially if defendant and upon his or her right to be present. Likewise, videoconferencing plat- counsel do not participate in the video- forms provide the meeting host with conference from the same room (which iii. Logistical Challenges tools to control who can be seen and would likely be the case due to social dis- May Further Prejudice heard. Would a judge’s use of these tools tancing guidelines). The defendant may a Criminal Defendant in response to disruptive behavior be have a difficult time following the pro- During a remote video proceeding, appropriate? One might assume so since ceedings without a lawyer sitting next to how will judges ensure that the defen- the Court found binding and gaging a him or her explaining what is happening dant has access to his or her counsel disruptive defendant to be appropriate and may be hesitant to voice concerns.

30 NACDL.ORG THE CHAMPION While a defendant’s right to a live ings also present a challenge in assessing from outside sources, is hardly some- proceeding is crucial, it is important to other nonverbal cues such as pauses in thing new in U.S. trials. According to note that the precautions courts are tak- speech and physical mannerisms. one study, 69 percent of the state and ing in response to the pandemic (e.g., Moreover, video and audio connec- federal judges surveyed had seen at distancing jurors, installing plexiglass in tivity issues may also reduce the ability least one juror sleeping during a the courtrooms, distributing masks to to glean anything from micro-expres- trial.127 Unfortunately, there is little each juror) will undoubtedly also apply sions or speech patterns. Social psychol- one can do to ensure jurors provide to the defendant. If a defendant has to ogist Robert E. Kraut conducted a study the defendant with their full attention. wear a mask that covers his or her nose in which he had participants judge the Instead, defense attorneys must con- and mouth, or the jurors’ view of the truthfulness of a story an actor was tinue to be vigilant to ensure their defendant is obstructed by plexiglass bar- telling.119 He found that a prolonged client’s right to a fair and impartial riers, jurors will not be able to fully expe- pause was viewed as deceptive. Virtual jury is not violated by jurors partici- rience the visual and nonverbal cues that trials could potentially hurt the credibil- pating in a remote video trial. COVID-19’S NEXT VICTIM? THE RIGHTS OF ACCUSED are integral to their communication and ity of a witness if there is a lag in connec- For these reasons, and those set forth judgment abilities. tivity from the time an attorney finishes above, virtual trials are insufficient to asking a question to the time the witness protect the rights of criminal defendants. ii. Ability of Jurors responds. Certain mannerisms, such as to Assess Credibility rigid posture and relaxed facial expres- III. Courts Must Take When the liberty, and potentially sions, are considered indicative of lying Steps to Safeguard the life, of the defendant are on the line, and deceit.120 Virtual proceedings may it is of the utmost importance that the distort how jurors use mannerisms in In-Person Proceedings trial court instill in the jury an under- assessing credibility. For example, a Against COVID-19 standing of the human consequences of defendant or witness may appear rigid if their verdict. There is no substitute for she is experiencing discomfort due to That is not to say that in-person tri- the human interaction which takes place unfamiliarity with the videoconferenc- als may proceed as they did in a pre-pan- in the courtroom. ing technology. Conversely, a defendant demic world. To the contrary, the coron- As anyone who has participated in a or witness may convey a more relaxed avirus imposes unique challenges on videoconference meeting or call with facial expression if he is tuning in from a jury proceedings. Courts must consider family or friends can attest, it is a poor room in his home. these consequences and develop careful proxy for face-to-face communication. This is critical as jurors are often (and transparent) plans to address them Multiple articles have been written since instructed to evaluate witness demeanor prior to resuming operation. In particu- COVID-19 forced business and social in determining witness credibility.121 lar, COVID-19 will make it difficult to interactions online about “Zoom All of this leads to the widely guarantee a fair cross-section of the fatigue,” the mental exhaustion associat- acknowledged statement from the community, fair deliberations, a speedy ed with online videoconferencing.114 Eleventh Circuit that “confrontation trial, and public access to the proceed- Researchers state that remote video calls through a video monitor is not the same ings. Each is addressed below. can drain participants’ energy, in part, as physical face-to-face confrontation.”122 because they force us to “focus more Jurors’ ability to directly observe the wit- A. The Pandemic Will Make intently on conversations in order to nesses’ demeanor, body language, and It Difficult to Obtain a absorb information,” as opposed to the interactions in order to gauge the truth of Representative Cross-Section nonverbal cues we usually rely upon.115 their statements will be greatly impacted The Sixth Amendment to the U.S. Nonverbal communication is a by videoconferencing technology.123 Constitution guarantees each criminal broad term that encompasses elements defendant the right to a trial “by an such as eye contact, facial expressions, iii. Decreased Juror impartial jury.”128 The Supreme Court gestures, kinesics (body movement), Attention Spans has held that an “impartial jury” is one proxemics (studies of distance), and par- As more and more individuals drawn from “a representative cross-sec- alanguage (variations in pitch, speech moved to videoconferencing in response tion of the community.”129 Impartiality rate, and volume).116 By one account, 55 to COVID-19, participants reported a requires not only that the jurors chosen percent of communication comes from tendency to become distracted.124 As we are unbiased, but also that the petit jury body language, 38 percent is in the tone consider moving to remote video trials, be selected “from a representative cross- of voice, and 7 percent is in the actual lawyers and judges must be concerned section of the community.”130 To estab- words that are spoken.117 Putting a trial in that jurors will be distracted or fail to lish a prima facie violation of the fair a virtual setting compromises nonverbal pay attention when not in a courtroom. cross-section requirement, the defen- communication, which has been shown Under the Sixth and Fourteenth dant must show that (1) a “distinctive” to play an important role in how one’s Amendments, a criminal defendant is group in the community, (2) is unfairly spoken statements are received. A typical entitled to a fair and impartial jury.125 and unreasonably underrepresented in video call, which only frames the partici- An impartial juror is someone capable the venire from which juries are selected pant from the shoulders up, impairs the and willing to decide the case based when compared to the number of such ability to read many nonverbal cues, such solely on the evidence presented at persons in the community, and (3) that as gestures, and requires sustained and trial.126 Juror conduct that prevents a this underrepresentation is due to sys- intense attention to words instead. defendant from receiving a fair and tematic exclusion of the group in the Videoconferencing technology also elim- impartial trial can warrant a new trial jury selection process.131 If a prima facie inates the ability to make eye contact, or other action by the court. But juror violation is established, the jury selec- which is often used to assess the confi- misconduct, which can include jurors tion process may only be sustained dence of the speaker.118 Virtual proceed- falling asleep or obtaining information under the Sixth Amendment if the

NACDL.ORG MAY 2020 31 exclusion “manifestly and primarily” distorting jurors’ judgment in their diabetes (10–20 percent), hypertension advances a “significant state interest.”132 decision-making at trial — that is, if (10–15 percent) and other cardiovascu- In the wake of the pandemic, they show up at all. lar and cerebrovascular diseases (7–40 courts noted difficulty obtaining a rep- Potential jurors may simply ignore percent) being most common. Previous resentative cross-section of jurors. This the jury summonses and not be willing studies have demonstrated that the pres- is a key reason courts suspended jury to risk their well-being. A real likelihood ence of any comorbidity has been associ- trials with regard to COVID-19. For exists that the jury yield will fall into ated with a 3.4-fold increased risk of instance, in its order precluding the either of two categories — brave souls developing acute respiratory distress calling of jurors for trials, the District with a strong sense of civic duty or those syndrome in patients with H7N9 infec- Court for the City and County of ignorant about the coronavirus. This tion.138 Of course, COVID-19 is more Denver, Colorado, noted that “[t]hese would have the effect of eliminating all readily predisposed to respiratory failure and other developments with regard to other groups. Jury clerks from the and death in susceptible patients. COVID-19 in the geographic area com- respective federal and local jurisdictions A study in New York state found prising this district adversely affect the need a plan of action — to ensure that similar results. Just over 86 percent of Court’s ability to obtain an adequate defendants’ Sixth Amendment right to a reported COVID-19 deaths involved at complement of jurors from a fair cross- fair cross-section is upheld. least one comorbidity, according to the section of the community.”133 state’s department of health.139 And the Now, as jury trials get ready to ii. Certain Demographics leading comorbidity, seen in 55.4 per- resume, there is very little insight into how Will Likely Be Excluded cent of all deaths, was hypertension. In COVID-19 will impact juror demograph- from the Jury Pool comparison, a recent estimate from the ics. Quantitative studies detailing the Just what types of demographic U.S. Department of Health & Human impact on juror yields are still forthcom- groups are likely to be excluded from the Services put the prevalence of high ing.134 However, certain conclusions can be jury yield? Those persons particularly blood pressure at about 45 percent in the drawn based on the virus’s trajectory to vulnerable to the coronavirus — overall adult population.140 The NYS- date. Specifically, jury pools are likely to whether based on medical or economic DOH reported that the rest of the 10 significantly underrepresent those popu- grounds — are particularly likely to be most common comorbidities in lations particularly sensitive to infection, underrepresented. COVID-19 fatalities were diabetes (37.3 including the elderly, persons with comor- percent), hyperlipidemia (18.5 percent), bid conditions, minorities, low-income a. Elderly Persons coronary artery disease (12.4 percent), individuals, and the unemployed. According to the CDC, individuals renal disease (11.0 percent), dementia aged 65 and older are at a higher risk of (9.1 percent), chronic obstructive pul- i. COVID-19 Will Yield severe illness and death from COVID- monary disease (8.3 percent), cancer a Self-Selection Bias 19.135 In jurisdictions where in-person jury (8.1 percent), atrial fibrillation (7.1 per- There is a real risk that jurors will trials resume, it is likely the elderly will be cent), and heart failure (7.1 percent). resent being asked to serve on a jury underrepresented on jury venires because The CDC’s website lists at least nine during a global pandemic. From May they are less likely to leave their homes categories of persons who might be at 15 to 27, 2020, DRC conducted an until the pandemic has subsided. The eld- higher risk for severe illness from anonymous survey of 420 jury-eligible erly may also be at a disadvantage in COVID-19, including “People 65 years citizens in the counties that comprise attending proceedings virtually, depend- and older, [p]eople who live in a nursing the Southern District of New York ing on their access to the hardware and home or long-term care facility, [p]eople (i.e., New York, Bronx, Westchester, ability to navigate the software. While with chronic lung disease or moderate to Rockland, Putnam, Orange, Dutchess, most jurisdictions allow individuals older severe asthma …, [p]eople with severe and Sullivan) and the Eastern District than 70 to opt-out of jury service, these obesity …, [p]eople with diabetes, [and] of New York (i.e., Kings, Nassau, individuals should be allowed to serve if [p]eople with chronic kidney disease Queens, Richmond, and Suffolk). The they want. The current state of affairs will undergoing dialysis,” among others.141 results should sound alarm bells. effectively prevent them from doing so. Accordingly, courts seeking to Seventy-four percent of all respondents exclude high-risk individuals would indicated that they would be concerned b. Persons with Comorbid Conditions skew away from these populations. about their health if called to serve as a Some courts have also taken steps Indeed, even without a formal policy, juror and that they would be anxious to exclude high-risk individuals from jurors particularly sensitive to COVID- about being in close proximity to other the jury pool. For instance, the Contra 19 may self-select and fail to report. potential jurors. In addition, over 65 Costa County Court stated that individ- Either way, the resulting cross-section percent of respondents indicated that uals who are “immunocompromised” would likely underrepresent persons COVID-19’S NEXT VICTIM? THE RIGHTS OF ACCUSED they would be anxious about having to may be excused from service upon pro- with hypertension, diabetes, and the like. take public transportation to commute viding sufficient proof.136 Having a medical condition itself to the courthouse. Sixty-six percent of What constitutes a high-risk indi- does not likely constitute a “distinct respondents stated that they would feel vidual? The China Medical Treatment group” for purposes of a “fair cross-sec- unease being in the courthouse at all — Expert Group for COVID-19 analyzed tion claim.” It would be difficult to show, even if the court followed standard data from 1590 laboratory-confirmed for instance, that people with diabetes safety guidelines (e.g., provided hand hospitalized patients from 575 hospitals share a common thread or basic similari- sanitizer, required everyone to wear a across mainland China between ty in attitude ideas, experiences, or a com- face-covering or mask, and enforced December 11, 2019, and January 31, munity of interests, as required to estab- social distancing). These pervasive anx- 2020.137 It found that 20–51 percent of lish cognizability.142 However, there is a ieties could breed resentment toward COVID-19 patients were reported as strong correlation between other protect- the court systems and have the effect of having at least one comorbidity, with ed classifications. For instance, the U.S.

32 NACDL.ORG THE CHAMPION COVID-19’S NEXT VICTIM? THE RIGHTS OF ACCUSED

Department of Health and Human compared to the percentage of the popu- required technology may reduce the repre- Services (Office of Minority Health) lation.146 New York City identified sub- sentation of certain minority groups in the reported that African American adults are stantially higher death rates among venire. This, too, could potentially impli- 60 percent more likely than non-Hispanic Black/African American persons (92.3 cate the fair-cross-section requirement if white adults to have been diagnosed with deaths per 100,000 population) and black or Hispanic jurors are underrepre- diabetes by a physician.143 Likewise, the Hispanic/Latino persons (74.3) that were sented in the jury pool. racial disparity in hypertension has been substantially higher than that of white recognized for decades, with African (45.2) or Asian (34.5) persons.147 With d. Low-Income Persons Americans at greater risk than that in mind, will courts be more willing Moreover, this issue may not be lim- Caucasians. A 2015 study published in to excuse jurors from impacted minority ited to race. The Supreme Court has held the American Journal of Medical Science, groups who are concerned for their that economic status may define a dis- for instance, found that population health and safety in serving on a jury? tinctive group for the purposes of the attributable risk for hypertension among A court excluding black or Hispanic Sixth Amendment.150 One study conduct- white men was 23.8 percent compared jurors, which have been found to be “dis- ed by the Center for Public Integrity with 45.2 percent among black men, and tinctive groups” for the purposes of the showed that families in neighborhoods 18.3 percent for white women compared Sixth Amendment,148 from jury duty at a with median household incomes below with 39.5 percent for black women.144 significantly high rate could potentially so $34,800 are five times more likely to lack skew the juror pool during the jury-selec- access to broadband internet than house- c. Racial and Ethnic Minorities tion process that the defendant’s Sixth holds in areas with a median income Though data related to the impact of Amendment rights would be violated. above $80,700.151 Low-income potential COVID-19 on the health of racial and The same result may occur if jurisdic- jurors trying to meet the requirements of ethnic minority groups is still emerging, tions move to remote video trials. virtual jury duty may face multiple chal- the CDC has reported that “current data According to Pew Research, the percentage lenges, including accessing a computer suggest a disproportionate burden of ill- of U.S. adults who have access to home (or a computer that is not being using for ness and death among racial and ethnic broadband is lower for black and Hispanic another purpose, such as a child attend- minority groups.”145 An April 17, 2020 households. In 2019, only 61 percent of ing virtual school) or connecting to the Morbidity and Mortality Weekly Report Hispanic adults and 66 percent of black internet. This latter issue may particularly (MMWR), which included race and eth- adults in the United States reported being affect individuals living in public housing nicity data from 580 patients hospital- home broadband users (compared to 79 developments that offer free, but spotty, ized with lab-confirmed COVID-19, percent of white adults).149 If jurisdictions Wi-Fi service that cannot support video found that black patients represented a move to remote video trials, the percent- feeds. To mitigate these issues, court sys- larger percentage of hospitalized patients age of jurors who will have access to the tems will need to consider proposals sup-

NACDL.ORG MAY 2020 33 porting equal access to jury service. This B. The Pandemic Will delayed until after it is safe to restart reg- may require the court system to provide Make It Difficult to ular court operations.157 resources such as extra computers and Ensure Fair Deliberations Two districts, the Eastern District of potentially even internet-equipped spaces Much has been written about California and the District of Arizona, that are (1) easily accessible for all and (2) courts’ plans to install physical safe- even declared judicial emergencies laid out to allow jurors to socially distance guards in the courtroom itself, includ- because of the COVID-19 outbreak, the from each other. ing, for instance, plexiglass dividers. AO’s letter states. The calendars there are The resumption of in-person jury However, the need to institute physical so congested that judges are unable to duty may also have the effect of exclud- precautions is not limited to just the meet certain statutory time limits to ing wealthy individuals who are shelter- courtroom. Rather, all aspects of the hear cases, and those time limits are sus- ing in out-of-jurisdiction vacation juror’s courthouse experience need to be pended due to the anticipated backlog of homes until the pandemic has subsided. accounted for. As described above, cases. Thus, when judges, lawyers, and On the other hand, virtual jury duty may DRC’s survey results indicate that the juries return to courtrooms, their case- have an even more deleterious effect on vast majority of potential jurors have loads will likely be full. the jury venire. anxiety about being in close physical While the scale of disruption proximity to other potential jurors. The caused by the coronavirus is novel, e. Unemployed Persons necessity to be in close proximity to precedents suggest that its resulting The April jobs report cited the worst other jurors is perhaps no greater than delays could be excluded under the employment data that the nation has during jury deliberations — exactly the Speedy Trial Act. Courts have routinely seen since 1948 — in the aftermath of moment when jurors must perform continued trials when states of emer- World War II. Most media outlets are their constitutional function. As much gency have closed courthouse facilities, reporting an unemployment rate of 14.7 as the courtroom must be made safe for or when disease has rendered individu- percent. However, there is reason to jurors, court systems also need to create als unavailable to appear at trial. On a believe that the real unemployment rate physically safe and compliant delibera- broader scale, the coronavirus has dis- is closer to 20 percent — a fifth of the tion spaces. Otherwise, there is a great rupted government operations, either national workforce.152 There is little risk that jurors will speed through delib- because of diverted resources, sick or known about the effect of mass unem- erations to escape the courthouse as quarantined personnel, or a backlog of ployment on juror turnout, but follow- soon as possible. continued matters. The Speedy Trial ing the great recession of 2008, there While it remains to be seen whether Act does not explicitly exclude time were anecdotal reports of jurors seeking hasty deliberations skew against defen- associated with such delays, but parties to be excused from jury duty at higher dants, it is clear that justice cannot be are likely to request, and courts are like- rates due to “fear[s] of financial ruin.”153 done with inadequate consideration. ly to grant, exclusions on these One might think that unemploy- Unfortunately, as noted above, most grounds. On this basis, a plethora of ment is good news for the stockpile of jurors in DRC’s study indicated high levels federal courts have responded by enter- eligible jurors. More unemployed people of anxiety about serving even if the court is ing blanket orders tolling compliance means fewer reasons to find a way out of following all advised safety guidelines. Such with speedy trial deadlines. The current jury duty and more time to perform unease could greatly impact jurors’ ability situation with coronavirus resembles one’s civic duty. However, this was not to concentrate on the case before them. the operation of the courts immediately the case during the country’s last major Thus, courts must take steps to following Hurricane Sandy and 9/11. economic downturn. In the wake of the make sure that jurors feel absolutely Courts have held that the closure of 2008 financial crisis, media reports indi- comfortable and safe at all times. Clerks courts due to Hurricane Sandy stopped cate that people were less available for must set up a system with adequate the speedy trial clock.158 jury service.154 They noted that “[i]n this social distancing — during selection, This compromise, however, may be time of double-digit unemployment and trial, and deliberation. acceptable when the defendant is grant- shrinking benefits for those who do have ed bail — because elongated pretrial jobs, courts are finding it more difficult C. The Pandemic Will detention could trigger habeas corpus to seat juries for trials running more Make It Difficult to protections. To address the latter cases, than a day or two.”155 Ensure a Speedy Trial prosecutors must take steps to mitigate Money woes inflicted by the reces- Just as the Sixth Amendment guar- harm to defendants. Indeed, prosecutors sion spurred more hardship claims, antees the right to confrontation, it also have always had to make policy decisions especially by those called for long cases. ensures the right to a speedy trial. An to prioritize cases — the practice is Indeed, with rising unemployment, pay insistence on in-person confrontation, nothing new. They are the entry points cuts and foreclosures, missing a day or thus, may delay the defendant’s trial to into the criminal justice system. They COVID-19’S NEXT VICTIM? THE RIGHTS OF ACCUSED two of work — let alone spending possi- ensure public safety. There is no doubt decide whether a case that begins with bly months on jury duty — has become that the pandemic shutdown is causing a an arrest is prosecuted and what charges impractical for families and business logjam in courts that is piling on top of are brought, and they have significant owners alike. The economic situation the normal holdups — trials and hear- influence over how a case progresses puts courts in an awkward position of ings are significantly delayed even in from there. This considerable discretion having to say to people who are the sole better days. The Administrative Office of can be used to respond proactively to a wage earner in a family, or people who the U.S. Courts and the U.S. Judicial crisis, like COVID-19, by diverting peo- are self-employed and do not get paid Conference recently asked Congress for ple away from crowded courtrooms, when they do not work, that they have to an additional $36.6 million and more jails, and prisons, or postponing cases serve. If juries resume this year, the judge positions in the wake of the and hearings that are not urgent. number of jurors released on hardship COVID-19 outbreak156 — in part, to Most obviously, prosecutors should grounds will only increase. handle the backlog of cases that will be grant bail liberally during this crisis,

34 NACDL.ORG THE CHAMPION both to limit the use of virtual con- D. The Pandemic Will serves an important function in a dem- frontation and to prevent the spread of Make It Difficult to ocratic society by enhancing trial fair- COVID-19. Along these lines, many Ensure a Public Trial ness and its appearance.166 states’ attorney’s offices have declined to In addition, courts have qualified seek pretrial detention (or impose cash i. Interested Spectators this right of access and found certain con- bail) on nonviolent offenders. For Keep Courts Alive to Their ditions to warrant restricting access to instance, the State’s Attorney’s Office for Sense of Responsibility criminal trials. Among the interests the Fourth Judicial Circuit of Florida In Waller v. Georgia, the Supreme courts have found sufficient to justify full ordered that defendants charged with Court declared public trials to be “essen- or partial closure are the defendant’s right nonviolent misdemeanors or felony tial” for the people accused because “the to a fair trial,167 the privacy rights of offenses, whose cases are not resolved on presence of interested spectators may alleged victims, jurors, informants, and first appearance and who do not pose a keep his triers keenly alive to a sense of witnesses,168 the privacy interests of juve- 169 public safety or flight risk, should be their responsibility and to the impor- nile defendants, the continued effec- COVID-19’S NEXT VICTIM? THE RIGHTS OF ACCUSED released on their own recognizance, tance of their functions.”161 tiveness of government investigations,170 other nonmonetary conditions of None may be more interested than and the security of government build- release, or minimal monetary bond. the defendant’s friends and relatives. In ings.171 Likewise, neither the Sixth Similarly, prosecutors should fact, the Supreme Court has held that Amendment right to a public trial nor the release people charged with nonviolent the right to a public trial enshrined in First Amendment right of access to judi- offenses who are at high risk of con- the Sixth Amendment entitles a crimi- cial proceedings grants the defendant or tracting COVID-19. San Francisco nal defendant “at the very least … to the press the right to broadcast proceed- District Attorney Chesa Boudin have his friends, relatives and counsel ings, either live or recorded.172 This is usu- ordered his assistant district attorneys present, no matter with what offense he ally enforced by courtroom procedures. to not oppose any motions for the may be charged.”162 Several jurisdictions As courthouses begin opening, it is release of pretrial detainees charged have interpreted the Supreme Court’s likely the public will be kept from with misdemeanors or drug-related holding to give “special concern for attending to reduce the number of indi- felonies who do not pose a threat to assuring the attendance of family mem- viduals in each courtroom. Thus, in the public safety. And Salt Lake County bers of the accused.”163 The Ninth absence of a particular showing of a District Attorney Sim Gill in Utah is Circuit in United States v. Rivera held need for closure to the public, courts will releasing at least 90 nonviolent individ- that the Sixth Amendment right to a need to make provisions for public uals incarcerated for technical viola- public trial serves to uphold certain val- access outside of the courthouse. tions, with further releases forthcoming ues throughout the proceedings, includ- to free 150-200 beds to fight COVID-19 ing “ensuring fair proceedings; remind- E. The Pandemic Will Impair by making space for possible quaran- ing the prosecutor and judge of their the Effectiveness of Counsel tining. A coalition of at least 30 prose- grave responsibilities; discouraging per- The pandemic’s impact is not limit- cuting attorneys, organized by Fair and jury; and encouraging witnesses to ed to trial itself. The Sixth Amendment Just Prosecution, further called for their come forward.”164 In particular, with also guarantees criminal defendants the peers to release people deemed non- regard to sentencing, the Rivera Court “right to effective assistance of coun- threatening to society. stated that “[t]he presence of the public sel.”173 Attorneys and clients must have a Prosecutors should also decline to at sentencing reminds the participants, collaborative relationship at all times to initiate new prosecutions for low-level especially the judge, that the conse- ensure this right, including when select- offenses that do not implicate public quences of their actions extend to the ing counsel of choice; coordinating safety. This practice has already been broader community. Friends and family client meetings; conducting a diligent implemented in certain busy jurisdic- members, especially a defendant’s investigation; and assessing plea deals. tions. For instance, Baltimore State’s young children, are particularly effective COVID-19 has wreaked havoc on each Attorney Marilyn Mosby announced in this regard, because they are the indi- of these pretrial processes. that, to curb the spread of coronavirus in viduals most likely to be affected by the the local jail, her office would dismiss defendant’s incarceration.”165 i. Selecting Counsel pending charges against anyone arrested Thus, to the extent that reopening The right to assistance of counsel for drug possession, prostitution, tres- proposals limit the presence of a defen- includes the defendant’s right to choose passing, minor traffic offenses, open dant’s friends, relatives, and counsel in who represents him.174 Indeed, the container, and urinating in public.159 the courtroom, they may violate the Supreme Court held in Gonzalez-Lopez Brooklyn’s District Attorney announced defendant’s right to a public trial. that a defendant whose choice of coun- on March 17 that his office would sel has been denied can demonstrate a immediately decline to prosecute low- ii. Public Access Sixth Amendment violation on its face level offenses that do not jeopardize Defendants are afforded a right to a — without a Strickland showing of inef- public safety.160 public trial under the Sixth Amendment fective assistance in the performance of Accordingly, in nonviolent cases, a to the Constitution. In addition, the the substitute counsel.175 In other words, defendant’s confrontation rights need public and the press have a concomi- the right to choice of counsel holds even not be sacrificed in the interests of a tant, qualified First Amendment right if a defendant could have received effec- speedy trial. But for more serious of access to criminal proceedings. tive representation from another lawyer. crimes, it remains to be seen how sig- Although the First Amendment does The current circumstances may nificant the backlog of cases will be not explicitly mention the right of impair this basic right to choice of coun- and whether courts are able to afford access, the Supreme Court has held that sel. The virus is disrupting the practice of defendants their constitutionally guar- the right to attend criminal proceedings trial lawyers who, by age or underlying anteed right to a speedy trial. is implicit in freedom of speech and condition, face a higher risk of becoming

NACDL.ORG MAY 2020 35 es the center of the brain associated with rewards, the nucleus accumbens, to acti- vate.182 While handshaking may no longer be wise in this environment, it goes to show that, when it comes to instilling trust, videoconferencing can- not replace face-to-face interactions. In-person meetings are also the best way of jointly reviewing critical evidence with clients and preparing them for potential testimony. In par- ticular, reviewing voluminous paper discovery remotely is simply not prac- tical, especially for defendants without access to a computer. In-person meet- ings are necessary to discuss strategy and to review documents that may shape case strategy. The coronavirus has made it extremely difficult for attorneys to even talk with their detained clients — never mind meet with them in-person. To mitigate the spread of COVID-19, the Federal Bureau of Prisons suspended legal visits and has yet to announce a plan for their restoration.183 In New York, the Metropolitan Detention Center (MDC) and Metropolitan Correctional Center (MCC) have arranged confidential attorney-client telephone calls of up to 30 minutes. Each facility will also purportedly seriously ill from contracting COVID- study of nonverbal communication, arrange a limited number of videocon- 19. Defendants who choose attorneys in introduced an equation about contradic- ferences of the same duration.184 these high-risk (and often unseen) cate- tory feedback: “Total feeling = 7 percent However, as cases move forward, the gories face a high probability that their verbal feeling + 38 percent vocal feeling demand for telephone and video calls counsel will be forced to request with- + 55 percent facial feeling.” 177 In other will far exceed the number of available drawal from the case — in order to avoid words, “the degree of liking conveyed by slots. Thus, any attorney-client contact exposure to the virus by coming to court. the facial expression will dominate and will be in short supply. In other words, defendants will have to determine the impact of the total mes- Detained people and their counsel weigh the quality of an attorney’s servic- sage.”178 This means face-to-face meetings who wish to meet in-person must be es against his or her vulnerability to the “are best when you feel someone is given the opportunity to do so. This virus or risk finding themselves without being too guarded, and you’d like to requires the prison system to develop a any counsel if their chosen representative know the truth.”179 That is exactly the tem- plan for opening up at least limited in- seeks to be relieved from a case due to perament of many criminal defendants person legal visits and providing a safe health concerns. This would improperly at first meeting. environment to do so. Moreover, video reduce the pool of attorneys available to While videoconferencing may be a conferencing technology should be such defendants. closer proxy, it is still no substitute for a available on a preferential basis to any face-to-face meeting. First, many defen- client who would prefer not to wait ii. Client Meetings dants may not have the resources to until safety guidelines for in-person Attorneys have a basic obligation to videoconference with their attorneys. meetings can be established, e.g., due establish trust and confidence with their Second, studies show that, when it to speedy trial concerns. clients. This relationship is necessary to comes to promoting a sense of trust, COVID-19’S NEXT VICTIM? THE RIGHTS OF ACCUSED ensure that the defendant shares critical physical contact helps promote a power- iii. Investigations information with counsel. It also helps ful sense of trust. Thus, a handshake — Effective investigation is also critical counsel evaluate the client’s capacity to or more appropriately in the current to the effective assistance of counsel. understand the proceedings.176 In-per- environment, a fist bump — has an Defense counsel has a professional obli- son meetings are a critical element of important effect. Numerous studies gation to diligently investigate the facts building this interpersonal trust. show that people who shake hands are of each case.185 However, the pandemic Face-to-face communication trumps more honest with each other and typi- has undermined many traditional the digital variety for several reasons. cally reach better outcomes.180 One such means of investigation. Shelter-in-place Most obviously, speaking on the phone study found that “handshakes are orders limit the ability of attorneys and does not permit the attorney or client uniquely relevant to producing coopera- investigators to visit certain places and to identify nonverbal cues. Albert tive motives. …”181 There is a psycholog- travel at certain times of day. Potential Mehrabian, a prominent figure in the ical reason for this: Shaking hands caus- witnesses may also be reluctant to meet

36 NACDL.ORG THE CHAMPION with defense attorneys, given concerns world economy. A person with a crimi- laser-light scattering method to confirm about social distancing. nal record may struggle to find a job in that “there is a substantial probability As a result, the defense’s investiga- the post-COVID marketplace.190 that normal speaking causes airborne tion may be severely delayed, which has virus transmission in confined environ- real consequences. For instance, witness- F. Even Minor Safety ments.”195 The study warned that the es’ memories may deteriorate during the Precautions Can Have virus can remain suspended in normal pendency of any delay in meeting with Outsized Effects speech droplets for tens of minutes or them. Likewise, time-sensitive evidence Because the coronavirus requires longer.196 A jury trial is the classic exam- may be lost or destroyed. For example, the balancing of public safety and per- ple of a confined space requiring per- “security camera footage may automati- sonal liberty, even the most modest sons to speak ad nauseum. Witnesses, cally have been erased during the period safety measure must be scrutinized. litigants, and jurors are speaking for for which investigation was preclud- Courts must carefully weigh the likely hours on end — both in the courtroom ed.”186 Moreover, these obstacles to an benefit to public health against any and deliberation room — all while emit- efficient investigation are completely impact on criminal defendants. This ting small speech droplets. one-sided. Law enforcement personnel requires confirming that the proposed In view of these risks, Dr. Michele are far less restricted by shelter-in-place safety measures actually work, based Barry, MD, FACP, the Director of the orders and remain free to conduct field on the best data available. An Center for Innovation in Global investigations. Thus, COVID-19 dispro- encroachment upon defendants’ rights Health in the Stanford School of portionately impairs the defense’s ability cannot be justified based on the mere Medicine, recommends taking addi- to build its case, placing defendants at an possibility of protecting participants. tional precautions — above and even starker disadvantage. The Southern District of New York’s beyond plexiglass. In an interview with To address this inherent bias, defen- plexiglass scheme is a prime example. At the National Association of Criminal dants should be afforded additional time first glance, this proposal appears to be Defense Lawyers, Dr. Barry explained for investigation without requiring minimally intrusive and unlikely to that plexiglass, while a “good start,” counsel to reveal confidential client drastically curtail defendants’ constitu- cannot entirely eliminate the risk of information. By contrast, the courts tional rights. For example, it appears transmission. In addition, she advo- should require prosecutors to disclose unlikely that a transparent divider cated distancing people six to nine feet exculpatory materials at an earlier date. would significantly impact defendants’ away and requiring the use of protec- The pandemic cannot be used as a pre- ability to observe jurors/witnesses. But tive masks. She further suggested test- text to promote trial by ambush. would such a minor change actually mit- ing people by nasal swab before trial to igate the risk of transmitting COVID- determine negativity, as point-of-care iv. Plea Bargains 19? That remains to be seen. tests become affordable. This test The Constitution specifically There is little quantitative research could further be re-administered every requires effective assistance during plea addressing the efficacy of plexiglass barri- four days, which is the mean incuba- negotiations as well. This makes sense ers. However, anecdotal evidence does lit- tion time for COVID-19.197 as the vast majority of criminal cases in tle to instill confidence. For instance, the Thus, there is no doubt that plexi- the United States are resolved through CDC recommends that employers glass cannot eliminate the risk of infec- plea bargains. For instance, a 2018 “[i]nstall transparent shields or other tion entirely. By sending out a jury NACDL study found that fewer than 3 physical barriers where possible to sepa- summons, a judge is necessarily asking percent of federal criminal cases result- rate employees and visitors where social members of the public to put their lives ed in a trial, with more than 97 percent distancing is not an option.”191 Food work- at risk in furtherance of their civic of criminal cases being resolved by ers, in particular, are required to “use duty. The effectiveness of even modest plea.187 The COVID-19 outbreak, how- physical barriers, such as … plexiglass or protocols must then be rigorously ana- ever, skews the incentives for defen- similar materials, or other impermeable lyzed before proceeding to the imple- dants and prosecutors during plea dividers or partitions, to separate [them] mentation phase. In fact, an ineffective negotiations. Imagine being arrested from each other, if feasible.”192 Yet despite change may even do more harm than for a crime for which bail is not an the use of plexiglass, there continues to be good. If the courts cannot protect the option — either because the defen- massive COVID-19 outbreaks at food health of jurors, they could get sick dant’s request was denied or the defen- processing plants. Likewise, the use of during trial. This would more than dant lacked the financial resources. plexiglass in many schools around the likely result in a mistrial, rendering the Such a defendant may face two choices: world may be comforting.193 But entire exercise pointless.198 (1) stay in jail during a pandemic, an American jurors require much stricter Moreover, the perception of safety is environment that may more quickly safeguards than school-age children; they just as important as the reality of safety. COVID-19’S NEXT VICTIM? THE RIGHTS OF ACCUSED spread the virus, and wait for trial;188 or include much higher-risk individuals. A precaution that is perceived as weak (2) agree to a plea deal.189 A defendant If anything, the manner in which would do little to increase jury yields. could weigh the risk of staying in jail COVID-19 is transmitted suggests that Plexiglass may just fall into that catego- against accepting a sentence that may jurors may be particularly vulnerable. ry. Outbreaks have been widely reported not involve additional incarceration COVID-19 is typically transmitted despite such safety measures, and and rush to agree to a plea bargain. through coughing and sneezing, prospective jurors may be aware of these Effective counsel is especially through large droplets of oral fluid.194 reports.199 If so, plexiglass would do little important in this circumstance. However, in dense settings, the virus can to quell juror anxiety or resolve the self- Defendants should not be pushed into also be found in smaller droplets, selection bias described above. plea deals just to get through the court including those emitted during normal In any event, it is difficult to truly system. This is especially true given speech. A recent study conducted by gauge SDNY’s proposal because details COVID-19’s disastrous impact on the researchers at Stanford University used a are sparse. For instance, how tall will the

38 NACDL.ORG THE CHAMPION COVID-19’S NEXT VICTIM? THE RIGHTS OF ACCUSED

plexiglass barriers be? Will there be any dant may want to prioritize these v Courts should develop standing airflow between them? Will the court’s interests differently, as is the plans to ensure the safe, socially ventilation systems push air down and defendant’s constitutional right. distant gathering of witnesses, not up? Will the windows be open for For example, a defendant intent on jurors, and staff. Social distancing freer air flow? Employers around the pursuing a speedy trial may con- should be conducted in a manner country are grappling with these same sent to video proceedings to that will not dilute cross-examina- implementations.200 How the court han- accommodate that goal. A differ- tion, jury deliberation, and other dles such logistics will determine whether ent defendant may place great hallmarks of due process. Courts plexiglass is a worthwhile installation. value on face-to-face witness con- must ensure that jurors, especially, frontation and reject the use of feel safe during all phases of the IV. Final Recommendations such technology. Defendants proceeding — during selection, should not be required to abandon trial, and deliberation. We recom- As described above, the COVID-19 protections except on a voluntary mend sending safety guidelines to pandemic presents significant chal- basis — based on an informed all prospective jurors, along with lenges to the fair administration of jus- prioritization. Any proceeding their respective summonses. tice. While fear of infection naturally involving diminished procedural takes center stage, courts must be care- rights (e.g., a virtual trial) should v Measures must naturally be taken to ful not to trample on the civil liberties only occur with the defendant’s ensure that all participants are safe, of criminal defendants. Toward that intelligent and knowing consent. including social distancing. However, end, we propose a set of core principles these measures should not come at that we hope will guide courts walking v The court must review procedures the expense of defendants’ rights. For that thin line. While there is no perfect for assembling venires to ensure example, courts must ensure that solution to balancing public health and that the jury pool adequately rep- defendants’ and jurors’ ability to see due process for those accused, the resents the community at large. other participants — and pick up on rights of criminal defendants deserve The court should consider publish- nonverbal cues — remains uncom- no less weight. The guidelines set forth ing its plan for ensuring a repre- promised. For instance, any divider below would help ensure a fair and sentative cross-section of the com- used to shield witnesses or jurors constitutional process going forward.201 munity. In doing so, it should must be sufficiently transparent. assure transparency in the demo- v The criminal justice system pro- graphic data of the jury pool so v Given the responses to DRC’s sur- vides a number of rights to that counsel may challenge its vey, it is important to identify accused defendants. Each defen- composition as necessary. fears that prospective jurors may

NACDL.ORG MAY 2020 39 have. Trial attorneys should -detainee-die-coronavirus-related-illness. 18. See F. Aimone, The 1918 Influenza request a confidential question- 6. See In the Matter of Authorizing Epidemic in New York City: A Review of the naire to gauge pandemic-related Limitation of Court Operations During a Public Public Health Response (2010), https:// concerns. For instance, attorneys Health Emergency and Transition to www.ncbi.nlm.nih.gov/pmc/articles/ may assess whether a prospective Resumption of Certain Operations, PMC2862336/#B49. juror would have concerns about Administrative Order No. 2020-79 (Ariz. May 19. See K. Canales, Photos Show the his or her health — even if the 20, 2020), http://www.azcourts.gov/Portals/ Precautions U.S. Cities Took to ‘Flatten the court adopts safety precautions. 22/admorder/Orders20/2020-79.pdf? Curve’ During the 1918 Spanish Flu Likewise, attorneys may gauge ver=2020-05-21-120117-320. Pandemic, BUSINESS INSIDER (Apr. 13, 2020, whether a prospective juror, or 7. See B. Murphy, Concerns About https://www.businessinsider.com/ any member of his or her house- Infections Post-Pandemic Could Impact Future spanish-flu-pandemic-1918-precautions hold, is at higher risk for COVID- Jury Trials, Experts Say, Newsday (Apr. 19, 2020), -us-cities-2020-4. 19 infection (e.g., 65 years or https://www.newsday.com/news/health/ 20. National Archives Catalogue, older, hypertension, or diabetes). coronavirus/coronavirus-jury-selection-long Medical Department - Influenza Epidemic Should such anxieties go unad- -island-1.43927317. 1918 - Police Court in open air - influenza dressed, they may distort delibera- 8. See R. Emery & D. Cooper, COVID-19 prevention. Police Court Officials of tions and give rise to unfair results Cannot Be the Death Knell for the American San Francisco holding a session in or mistrials. Jury Trial, Law.com (Apr. 20, 2020), the open, as a precaution against the https://www.law.com/newyorklawjournal/ spreading influenza epidemic, https:// Courts should not allow new safe- 2020/04/20/covid-19-cannot-be-the catalog.archives.gov/id/45499315. ty measures to impair the confronta- -death-knell-for-the-american-jury-trial/. 21. See M. Walsh, Outbreaks of Disease tion rights of criminal defendants. 9. See N. Goldberg et al., Coronavirus Have Shuttered the Supreme Court Going Back Even a great idea for safeguarding pub- Leaves Trail of Illness and Death in NYC More Than 2 Centuries, ABA J. (Mar. 19, 2020), lic health falls flat if it does not pass Courthouses as Slow-to-Change System https://www.abajournal.com/web/article/ constitutional muster. Struggles to Cope with Pandemic, N.Y. DAILY outbreaks-have-shuttered-the-supreme © 2020, National Association of NEWS (May 25, 2020), https://www.nydaily -court-going-back-more-than-two-centuries. Criminal Defense Lawyers. All rights news.com/coronavirus/ny-coronavirus 22. See C. Cushman, Epidemics and the reserved. -pandemic-unprepared-nyc-courts Supreme Court, supremecourthistory.org, -20200526-fe2zknj7cbgutpjdn3vtfruiiq https://supremecourthistory.org/history-of- Notes -story.html. the-court/Epidemics%20and%20the 1. See P. Goldman & S. Smith, Netanyahu 10. See Crane-Newman, supra. %20Supreme%20Court/. Stands Trial on Charges of Bribery, Fraud and 11. Id. 23. See id. Breach of Trust, NBC News (May 24, 2020), 12. See A. Denney, 3 New York Judges Died 24. See id. https://www.nbcnews.com/news/world/ from Coronavirus, Almost 170 Court Workers 25. See United States Courts, Now netanyahu-stands-trial-charges-bribery Infected, N.Y. POST (Apr. 28, 2020), Cherished, Bill of Rights Spent a Century in -fraud-breach-trust-n1212806. https://nypost.com/2020/04/28/coronavirus Obscurity, USCourts.gov, (Dec. 12, 2019), 2. See id. -in-ny-3-judges-die-almost-170-court https://www.uscourts.gov/news/2019/12/ 3. See M. Crane-Newman, NYC Sex -workers-infected/. 12/now-cherished-bill-rights-spent Abuse Case Ends in Mistrial After Defense 13. See Associated Press, Robert Durst -century-obscurity. Lawyer Shows Up with Coronavirus Murder Trial May Move to New California Court, 26. Ruthenberg v. United States, 245 U.S. Symptoms, N.Y. DAILY NEWS (Mar. 16, 2020), N.Y. TIMES (May 24, 2020), https://www. 480, 481 (1918). https://www.nydailynews.com/new nytimes.com/aponline/2020/05/24/ 27. See A. Liptak, Virus Pushes a Staid -york/manhattan/ny-manhattan-judge us/ap-us-robert-durst-murder-trial.html; P. Supreme Court Into Revolutionary Changes, -mistrial-covid-20200316-e625abx3k5 Vercammen & H. Silverman, Robert Durst N.Y. TIMES (May 3, 2020), https:// axfdki3tu5ou7xuu-story.html (declaring Murder Trial Is Suspended Because of www.nytimes.com/2020/05/03/us/politics/ a mistrial when defense counsel Coronavirus Concerns, CNN (Mar. 15, 2020), supreme-court-coronavirus.html. exhibited COVID-19-type symptoms https://www.cnn.com/2020/03/15/us/ 28. See C. Villani, Lori Loughlin, Husband when struggling to examine a witness california-jury-trials-suspended/index.html. Plead Guilty in ‘Varsity Blues,’ Law360 via speakerphone). 14. See O’Brien, supra. (May 22, 2020), https://www.law360.com/ 4. See R.D. O’Brien, Is Anywhere Safe for a 15. See M. Dolan, Some California Courts california/articles/1276185. Jury Trial During the Covid-19 Pandemic? Try a Start to Reopen as Coronavirus Restrictions 29. See News Release, Judiciary Launches School Gym, WALL ST. J. (May 20, 2020), Ease, L.A. TIMES (May 21, 2020), Virtual Grand Jury Pilot Program, New Jersey https://www.wsj.com/articles/is-anywhere https://www.latimes.com/california/story/ Courts (May 14, 2020), https://njcourts COVID-19’S NEXT VICTIM? THE RIGHTS OF ACCUSED -safe-for-a-jury-trial-during-the-covid-19- 2020-05-21/some-california-courts-start-to .gov/pressrel/2020/pr051420a.pdf. pandemic-try-a-school-gym-1158 -reopen-as-coronavirus-restrictions-ease. 30. See D. Atkins, Fla. Courts Launch 9893201(quoting Paula Hannaford-Agor, 16. However, the trial will be moved Remote Civil Jury Trial Pilot Program, Law360 Director of the Center for Jury Studies at the from the courthouse near Los Angeles (May 22, 2020), https://www.law360.com/ National Center for State Courts). International Airport to the larger articles/1276219/fla-courts-launch-remote- 5. See M. Hendrickson, Man Awaiting Inglewood courthouse — to better civil-jury-trial-pilot-program?nl_pk Trial in Bar Fight 7th Cook County Jail promote social distancing. =aefa4487-e20e-4ec1-afdc-6657aa5ecd1 Detainee to Die from Coronavirus 17. See Center for Diseases Control and a&utm_source=newsletter&utm_medium Complications, CHI. SUN TIMES (May 6, 2020), Prevention, 1918 Pandemic, https://www. =email&utm_campaign=special. https://chicago.suntimes.com/coronavirus/ cdc.gov/flu/pandemic-resources/1918 31. See D. Siegal, Texas Court Pioneers Trial 2020/5/6/21249680/arlington-heights -pandemic-h1n1.html (last accessed by Zoom in Atty Fee Dispute, Law360 (April 22, -charged-bar-fight-cook-county-jail May 27, 2020). 2020), https://www.law360.com/articles/12

40 NACDL.ORG THE CHAMPION 65459/texas-court-pioneers-trial-by-zoom Emergency and Transition to Resumption of interests … may warrant dispensing with -in-atty-fee-dispute. Certain Operations (Ariz. May 20, 2020), confrontation at trial.’” Id. at 848. 32. See K. Pohlman, Texas Court Hold First http://www.azcourts.gov/Portals/22/ 76. See, e.g., M.C. McAllister, Two-Way Jury Trial Via Zoom in Insurance Feud, Law360 admorder/Orders20/2020-79.pdf?ver=2020 Video Trial Testimony and the Confrontation (May 18, 2020), https://www.law360.com/ -05-21-120117-320. Clause: Fashioning a Better Craig Test in articles/1274097/texas-court-holds-first-jury 48. Id. Light of Crawford, 34 FLA. ST. U. L. REV. 836, -trial-via-zoom-in-insurance-feud. 49. A. Morris, Jury Trials Are Back in Texas. 841–42 (2007). 33. The summary jury trial was part of Here’s What You Should Know, Law.com (Jun. 8, 77. See, e.g., Yates, 438 F.3d 1307, 1312– an alternative dispute resolution process. 2020), https://www.law.com/texaslawyer/20 14 (11th Cir. 2006) (en banc) (holding that 34. See A. Morris, Juror Walks Off to 20/06/08/jury-trials-are-back-in-texas-heres the accused has a right to physical face-to- Take Phone Call as Texas Tests First Jury Trial -what-you-should-know/. face confrontation). Via Zoom, Law.com (May 18, 2020), 50. Id. 78. United States v. Gigante, 166 F.3d 75,

https://www.law.com/texaslawyer/2020/05/ 51. United States v. Santos, Case No. 79–81 (2d Cir. 1999). COVID-19’S NEXT VICTIM? THE RIGHTS OF ACCUSED 18/juror-walks-off-to-take-phone-call-as 1:19-CR-107-H-BU, slip op. (N.D. Tex. Jun. 8, 79. See id. at 79–81. -texas-tests-first-jury-trial-via-zoom/. 2020), Dkt. No. 57 at 1. 80. Id. at 80. 35. See P. Brush, The New Normal in SDNY 52. Id. 81. Id. at 81. Will Include ‘Lots of Plexiglass,’ Law360 (May 53. Id. 82. See Yates, 438 F.3d at 1309–10. 20, 2020), https://www.law360.com/articles/ 54. Id. at 2. 83. Id. at 1316. 1275480. 55. See Judicial Council of California, 84. See id. 36. See id. Statewide Order by Hon. Tani G. Cantil-Sakauye 85. Yates, 438 F.3d at 1314; see also 37. See id. (Mar. 23, 2020), http://www.glenncourt. Proposed Amendments to the Federal 38. See S. Bishop, SDNY Judge Lets Sick ca.gov/general-info/documents/Statewide Rules of Criminal Procedure (Apr. 29, 2002) Juror Deliberate Via Videoconference, Law360 %20Order%20by%20the%20Chief% (appendix to statement of Breyer, J.) (March 16, 2020), https://www.law360.com/ 20Justice-Chair%20of%20the%20Judicial% [hereinafter Proposed Rule 26(b)]. articles/1253726/sdny-judge-lets-sick-juror 20Council%20(3-23-2020).pdf. 86. Proposed Rule 26(b) at 7. -deliberate-via-videoconference. 56. See P. Brush, Grand Jurors in SDNY 87. Yates, 438 F.3d at 1314–15. 39. Id. Get Video Option Amid Virus Outbreak, 88. See Amendments to Rule 26(b) of 40. See Transcript of Message From New Law360.com, https://www.law360.com/ the Federal Rules of Criminal Procedure, 207 York Chief Judge DiFiore (May 25, 2020), articles/1255774/grand-jurors-in-sdny F.R.D. 89, 94 (2002) (statement of Scalia, J.). https://www.nycourts.gov/whatsnew/pdf/ -get-video-option-amid-virus-outbreak. 89. People v. Fitzpatrick, 158 Ill. 2d 360, 365 May25MessagefromCJ.pdf. 57. U.S. CONST. amend. VI. (1994); see also Commonwealth v. Bergstrom, 41. See Dolan, supra. 58. Coy v. Iowa, 487 U.S. 1012, 1017 524 N.E.2d 366, 371-72 (1988) (“The plain 42. See Superior Court of California, (1988) (citing California v. Green, 399 meaning of assuring a defendant the right ‘to County of Contra Costa, Urgent Release: Court U.S. 149, 157 (1970)). meet the witnesses against him face to face’ is Reopening (May 13, 2020). https://www. 59. See id. at 1019-20. that the accused shall not be tried without cc-courts.org/general/docs/PressRelease 60. See C.A. Chase, The Five Faces of the the presence … of both himself and the -COVID19-05-13-20.pdf. Confrontation Clause, 40 HOUS. L. REV. 1003, witnesses testifying against him.”). 43. Id. (emphasis in original). 1011 (2003). 90. Gigante, 166 F.3d 75 at 79. 44. In the Eastern District of Texas, 61. See id. 91. Id. at 79-80. Chief Judge Gilstrap told Law360 that the 62. See M. Pressman, Bench Trial by 92. Horn v. Quarterman, 508 F.3d 306, court anticipates beginning jury trials at Videoconference, Civil Jury Project of NYU Law 313–20 (5th Cir. 2007). the start of June, with health measures in School (May. 6, 2020), https://civiljuryproject. 93. See also Bush v. State, 193 P.3d 203, place. This includes taking the temperature law.nyu.edu/commentary/. 215, 214 (Wyo. 2008) (two-way testimony of potential jurors when they enter the 63. Coy, 487 U.S. at 1016. allowed when the witness suffered from a courthouse, providing potential jurors with 64. Id. at 1020–21. medical condition that was “serious and masks, adhering to social-distancing 65. Id. at 1017 (citing Pointer v. Texas, severe and not temporary”; the witness guidelines, and equipping the courtroom 380 U.S. 400, 404 (1965)). suffered from congestive heart failure and with multiple microphones during jury 66. Id. at 1019 (citation omitted) was hospitalized and in “profoundly poor” selection in order to disinfect between 67. Id. condition; his physician was adamant that uses. Judge Gilstrap also noted that his 68. In Coy, four Justices wrote or joined traveling to testify would be detrimental to district is largely rural and has not seen a in separate concurring or dissenting his health); Kramer v. State, 277 P.3d 88, 94 high number of COVID-19 cases. See D. opinions to emphasize that any right (Wyo. 2012) (two-way testimony allowed Siegal, Why Gilstrap Is Getting Ready for Trial conferred by the Confrontation Clause when the witness suffered a mental ailment; — And Not on Zoom, Law360 (May 15, 2020), requiring the witness to physically face the after a “rather severe suicide attempt,” a https://www.law360.com/ip/articles/12731 defendant was not absolute. Id. at 1024. court committed the witness to the state 88/why-gilstrap-is-getting-ready-for-trial- 69. Maryland v. Craig, 497 U.S. 836 hospital, finding that he posed a substantial and-not-on-zoom. (1990) (emphasis in original). risk to himself and others; his condition was 45. CAPortal, County of Monterey, 70. See id. at 855. so severe that hospital staff checked on him Check Jury Duty Status, https://portal. 71. Id. at 847 (citations omitted). every 15 minutes and his psychiatrist re- monterey.courts.ca.gov/jury (last accessed 72. Id. at 848-849 (internal citations evaluated his medication on an ongoing May 27, 2020). omitted). basis; a psychiatrist expressly advised 46. See O’Brien, supra. 73. Id. at 850 (emphasis added). against having the witness travel to testify); 47. Administrative Order No. 2020-79, In 74. Id. at 855-56 (emphasis added). State v. Swindler, 129 N.C. App. 1, 5, 497 S.E.2d re Matter of: Authorizing the Limitation of 75. Id. According to Justice O’Connor, “in 318, 321 (detective’s testimony that a Court Operations During a Public Health certain narrow circumstances, ‘competing witness was unavailable because she was in

NACDL.ORG MAY 2020 41 the hospital following a heart attack for a crime while he sits bound and gagged communication will necessarily vary for each sufficient to establish unavailability), aff’d per before the judge and jury would to an juror. LeVan, supra at 94-95. curiam, 349 N.C. 347, 507 S.E.2d 284 (1998). extent comply with that part of the Sixth 124. See, e.g., S. Gershman, Stop Zoning 94. Illinois v. Allen, 397 U.S. 337, 338 Amendment’s purposes that accords the Out in Zoom Meetings, HARV. BUS. REV. (May 4, (1970) (citing Lewis v. United States, 146 U.S. defendant an opportunity to confront the 2020), https://hbr.org/2020/05/stop-zoning 370 (1892)) (the defendant has the right to witnesses at the trial. But even to -out-in-zoom-meetings. be present during all stages of a trial). contemplate such a technique, much less 125. See Morgan v. Illinois, 504 U.S. 95. Coy, 487 U.S. at 1015 (holding that see it, arouses a feeling that no person 719 (1992), Duncan v. Louisiana, 391 U.S. the Sixth Amendment right of a criminal should be tried while shackled and gagged 145 (1968). defendant “to be confronted with the except as a last resort.”). 126. See Smith v. Phillips, 455 U.S. 209, witnesses against him” guarantees a face- 112. S. Milgram, Behavioral Study of 217 (1982). to-face encounter between a witness and Obedience, 67(4) J. ABNORMAL AND SOCIAL 127. See, e.g., Sean Carter, Hey, Juror- the accused). PSYCHOL. 371-378 (1963). Juror!, 38 A.B.A.J. 7, 1 (2005) (quoting a 96. United States v. Gagnon, 470 U.S. 113. See J.S. Wolfe, The Effect of Location study in which 69 percent of state and 522 (1985) (citing Snyder v. Mass., 291 U. S. in the Courtroom on Jury Perception of Lawyer federal judges had seen at least one juror 97 (1934)). Performance, 21(3) PEPP. L. REV. 731 (1994). sleeping during trial). 97. New York Criminal Procedure Law 114. See, e.g., L. Fosslien & M.W. Duffy, 128. U.S. CONST. amend. VI. Section 340.50 similarly proscribes that “a How to Combat Zoom Fatigue, HARV. BUS. REV. 129. Holland v. Illinois, 493 U.S. 474, 480 defendant must be personally present during (Apr. 29, 2020), https://hbr.org/2020/04/ (1990) (“The Sixth Amendment requirement the trial” unless certain exceptions are met. how-to-combat-zoom-fatigue; M. Jiang, of a fair cross-section on the venire is a 98. R.L. Marcus, E-Discovery & Beyond: The Reason Zoom Calls Drain Your Energy, means of assuring, not a representative jury Toward Brave New World or 1984? 25 REV. BBC.com (Apr. 22, 2020), https://www.bbc. (which the Constitution does not demand), LITIG. 633 at 676 (2006). com/worklife/article/20200421-why-zoom but an impartial one (which it does).”). 99. Craig, 497 U.S. at 849. -video-chats-are-so-exhausting. 130. Id. 100. See Pointer v. United States, 151 U.S. 115. Fosslien, supra. 131. See Duren v. Missouri, 439 U.S. 357, 396, 408 (1894). 116. See E.A. LeVan, Nonverbal 364 (1979). 101. FED. R. CIV. P. 43(a). Communication in the Courtroom: Attorney 132. Id. at 367-68. 102. United States v. Gordon, 829 F.2d Beware, 8 LAW & PSYCHOL. REV. 83-104 (1984). 133. Administrative Order No. 2020-04, 119, 123 (D.C. Cir. 1987) (stating that Federal 117. See P. R a j, Body Language and Its District Court, City and County of Denver, Rule of Criminal Procedure 43(a), affording a Understanding, Submitted to the Faculty of Colorado, https://www.courts.state.co.us/ defendant the right to be present during MBICEM (2019), https://www.academia.edu/ userfiles/file/Court_Probation/02nd_Judicial jury empanelment, “embodies the 40938632/Body_Language_and_its _District/Denver_District_Court/Admin protections afforded by the Sixth _understanding. istrative%20Order%202020-04.pdf. Amendment Confrontation Clause, the due 118. See H. Vandromme et al., Indirectly 134. The National Center for State process guarantee of the Fifth and Measured Self-Esteem Predicts Gaze Courts conducted a survey, which collected Fourteenth Amendments, and the common Avoidance, 10 SELF AND IDENTITY, 1, 32-43 (2011). information about the average jury yield law right of presence.”). 119. See R.E. Kraut, Verbal and Nonverbal before the pandemic and monthly jury yield 103. See, e.g., Hager v. United States, 79 Cues in the Perception of Lying, 36 J. since March 2020. Specifically, they asked A.3d 296, 302-03 (D.C. 2013) (“[T]he right PERSONALITY AND SOC. PSYCHOL. 380-391 (1978). courts to provide detailed information about extends not only to the defendant’s ability 120. See A. Mehrabian, Nonverbal summoning and qualification, including to hear the responses that jurors give, but Betrayal of Feeling, J. EXPERIMENTAL RES. IN undeliverable, nonresponse/FTA, excusal, also to reasonably view their demeanor PERSONALITY, 1 (1971). and deferral rates. However, its findings have during those responses in order to assess 121. See U.S. Supreme Court not yet been published. their various qualities as jurors and make Committee on Standard Jury Instructions. 135. See COVID-19 Guidance for decisions about whether to exercise Florida Standard Jury Instructions. Older Adults, Centers for Disease Control challenges. Otherwise, the defendant’s Tallahassee: The Florida Bar, 1977, Section and Prevention, https://www.cdc.gov/aging/ right to “observe” voir dire would be 2.2. See also United States v. Johnson, 192 F. covid19-guidance.html (last accessed May rendered meaningless,” and noting that “it App’x 43, 44 (2d Cir. 2006) (“The main 28, 2020). is reasonable for us to assume that from charge included a detailed (and sound) 136. See Superior Court of California, Davis’s position while sitting at counsel instruction on assessing the credibility of County of Contra Costa, Urgent Release: Court table the jurors were turned away from him witnesses, including the need to evaluate Reopening (May 13, 2020). https://www. and his primary view during voir dire would demeanor and nonverbal language.”). cc-courts.org/general/docs/PressRelease have been of their backs.”). 122. Yates, 438 F.3d at 1315. -COVID19-05-13-20.pdf. COVID-19’S NEXT VICTIM? THE RIGHTS OF ACCUSED 104. People v. Antommarchi, 80 N.Y.2d 123. Some commentators argue face- 137. W. Guan et al., Comorbidity and Its 247, 250 (N.Y. 1992). to-face encounters with witnesses are not Impact on 1590 Patients with COVID-19 in 105. Id. (internal citations omitted). necessary and that “the role of demeanor China: A Nationwide Analysis, 55(5) EUR. RESPIR. 106. See Melendez-Diaz v. Mass., 557 evidence in American trials is seriously J. (May 2020), https://www.ncbi.nlm.nih U.S. 305, 314 n.3 (2009), (“The right to overstated” based on psychological research .gov/pmc/articles/PMC7098485/#C19. confrontation may, of course, be waived.”). that shows “most people can do no better 138. See id. (citing H.N. Gao et al., Clinical 107. Allen, 397 U.S. at 343. than chance in determining when a person is Findings in 111 Cases of Influenza A (H7N9) 108. See id. at 339-40. telling the truth from observing her in telling Virus Infection, 368 N. ENGL. J. MED. 2277–2285 109. See id. at 341. the story.” Marcus, supra at 676. However, (2013), https://www.nejm.org/doi/pdf/10. 110. Id. at 343 (internal citations many jurors believe nonverbal cues are 1056/nejmoa1305584). omitted). important in determining credibility, though 139. See R. Franki, Comorbidities the 111. See id. at 344 (“Trying a defendant the relative weight and impact of nonverbal Rule in New York’s COVID-19 Deaths, THE

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HOSPITALIST (Apr. 9, 2020), https://www.the avirus/2019-ncov/need-extra-precautions/ entail an undue financial hardship, that fact -hospitalist.org/hospitalist/article/220457/ racial-ethnic-minorities.html. cannot support the complete exclusion of coronavirus-updates/comorbidities-rule 146. See Hospitalization Rates and all daily wage earners regardless of whether -new-yorks-covid-19-deaths. Characteristics of Patients Hospitalized with there is actual hardship involved.”). 140. See Estimated Hypertension Laboratory-Confirmed Coronavirus Disease 151. See Center for Public Integrity, Rich Prevalence, Treatment, and Control Among 2019 — COVID-NET, 14 States, March 1–30, People Have Access to High-Speed Internet; U.S. Adults, Million Hearts, https://million 2020, CDC.gov (Apr. 17, 2020), available at Many Poor People Still Don’t (May 12, 2016), hearts.hhs.gov/data-reports/hyper https://www.cdc.gov/mmwr/volumes/69/ available at https://publicintegrity.org/ tension-prevalence.html (last accessed wr/mm6915e3.htm?s_cid=mm6915e3 inequality-poverty-opportunity/rich-people May 27, 2020). _w (33% of hospitalized patients were -have-access-to-high-speed-internet-many 141. People Who Are at Higher Risk for black compared to 18% in the community). -poor-people-still-dont. Severe Illness, CDC.gov, https://www.cdc. 147. NYC Health, Age-adjusted rates of 152. See D. Robinson, The Real gov/coronavirus/2019-ncov/need-extra lab confirmed COVID-19 non-hospitalized Unemployment Rate Is Already Around 20 -precautions/people-at-higher-risk.html cases, estimated non-fatal Hospitalized cases, Percent, NEWSWEEK (May 14, 2020), (last accessed May 28, 2020). and patients known to have died 100,000 by https://www.newsweek.com/real-unem 142. See, e.g., United States v. Test, 550 race/ethnicity group as of April16,2020, ployment-rate-already-around-20-percent F.2d 577 (10th Cir. 1976); Willis v. Zant, 720 available at https://www1.nyc.gov/assets/ -opinion-1503889. F.2d 1212, 1216 (11th Cit. 1983) (same). doh/downloads/pdf/imm/covid-19-deaths 153. J. Schwartz, Call to Jury Duty Strikes 143. See Diabetes and African Americans, -race-ethnicity-04162020-1.pdf. Fear of Financial Ruin, N.Y. TIMES (Sep. 1, 2009), U.S. Department of Health and Human 148. See United States v. Biaggi, 909 https://www.nytimes.com/2009/09/02/us/ Services, https://minorityhealth.hhs.gov/omh F.2d 662, 676-79 (2d Cir. 1990) (finding 02jury.html. /browse.aspx?lvl=4&lvlid=18 (last accessed that both African Americans and 154. C. Williams, Weighed Down by May 28, 2020). Hispanics are distinctive groups for Recession Woes, Jurors Are Becoming 144. See D. Lackland, Racial Differences in purposes of the Duren test). Disgruntled, L.A. TIMES (Feb. 15, 2010), Hypertension: Implications for High Blood 149. See Pew Research Center, https://www.latimes.com/archives/la-xpm Pressure Management, 348(2) AM. J. MED. SCI. Internet/Broadband Fact Sheet (Jun. 12, 2019), -2010-feb-15-la-me-reluctant-jurors15 135-138 (Aug. 2014), https://www.ncbi.nlm available at https://www.pewresearch.org/ -2010feb15-story.html. .nih.gov/pmc/articles/PMC4108512/ internet/fact-sheet/internet-broadband/. 155. Id. (last accessed May 28, 2020). 150. See Thiel v. Southern Pac. Co., 328 156. The funding requests include 145. COVID-19 in Racial and Ethnic U.S. 217, 222-24 (1946) (“Although a federal $15.1 million for enhanced cleaning of Minority Groups, CDC.gov (Apr. 22, 2020), judge may be justified in excusing a daily courthouses and $15 million for eight available at https://www.cdc.gov/coron wage earner for whom jury service would weeks of health screenings at courthouse

NACDL.ORG MAY 2020 43 entrances. The courts also requested $11.2 Court, 464 U.S. 501, 510-11 (1984) (right to fair does not require that audio evidence be million for information technology costs, trial can justify closure); see also Presley v. Ga., simultaneously broadcast in courtroom); $9.4 million for public defender services, 558 U.S. 209, 213-14 (2010) (right to fair trial United States v. Edwards, 785 F.2d 1293, 1295- $7.5 million for videoconferencing may justify closing voir dire); In re Providence 96 (5th Cir. 1986) (right of access does not equipment, $2.2 million for court security Journal Co., 293 F.3d 1, 13-14 (1st Cir. 2002) give journalists First Amendment right to and $1.6 million for increased costs of (right to fair trial justified restricting public broadcast trial); Conway v. United States, 852 supervising offenders released from prison access to court materials in political F.2d 187, 188 (6th Cir. 1988) (right of access or awaiting trial. The request also includes a corruption case because widespread does not give journalists First Amendment proposal to add seven district judge publicity could have prejudiced defense); right to broadcast, telecast, or photograph positions, and make eight temporary United States v. Gerena, 869 F.2d 82, 86 (2d Cir. trial); United States v. Kerley, 753 F.2d 617, 620 district judge positions into permanent 1989) (right to fair trial justified sealing of (7th Cir. 1985) (public trial requirement does spots. “When the courts reconstitute after wire-tapped conversations if substantial not give defendant Sixth Amendment right the COVID-19 pandemic, the strain will be probability that publicity would prejudice to videotape trial for later broadcast); United even greater since there will be a backlog defendant); United States v. Edwards, 303 F.3d States v. Hastings, 695 F.2d 1278, 1283 (11th of cases that could not be adjudicated 606, 617 (5th Cir. 2002) (right to fair trial Cir. 1983) (right of access and public trial during the pandemic,” the letter states. justified closure of hearings on whether to requirements of First and Sixth Amendments 157. See T. Ruger, Federal Courts Seek impanel anonymous jury). satisfied by public’s opportunity to attend More Money and Judges in Next COVID-19 Bill, 168. See Globe Newspaper Co. v. and report on trial and do not require that Roll Call (May 5, 2020), https://www.rollcall Superior Court, 457 U.S. 555, 608-09 (1980) trial be broadcast live or on tape). .com/2020/05/05/federal-courts-seek-more (protection of minor victims of sex crimes 173. McMann v. Richardson, 397 U.S. -money-and-judges-in-next-covid-19-bill/. would justify sufficiently narrowly tailored 759, 771 (1970) (“[I]f the right to counsel 158. See People v. Sheehan, 39 Misc. closure); see, e.g., Rodriguez v. Miller, 537 F.3d guaranteed by the Constitution is to serve 3d 695 (N.Y. Cnty. Crim. Ct. 2013) (30-day 102, 110 (2d Cir. 2007) (protection of its purpose, defendants cannot be left to suspension was excepted from speedy trial undercover agent’s identity justified the mercies of incompetent counsel. …”). deadline as an exceptional circumstance; screening witness from defendant’s family 174. See, e.g., United States v. Gonzalez- defendant’s right to a speedy trial was and general public); Bell v. Jarvis, 236 F.3d Lopez, 548 U.S. 140, 146 (2006) (holding that not violated). 149, 168 (4th Cir. 2000) (protection of the Sixth Amendment right to counsel of 159. See Brennan Center for Justice, adolescent rape victim justified closure choice “commands, not that a trial be fair, Prosecutors Responses to COVID-19 (May during victim’s testimony); United States v. but that a particular guarantee of fairness 27, 2020), https://www.brdennancenter.org/ Jones, 965 F.2d 1507, 1513 (8th Cir. 1992) be provided — to wit, that the accused be our-work/research-reports/prosecutors (protection of witness from danger justified defended by the counsel he believes to be -responses-covid-19. screening witness from general public); In best.”); Powell v. Ala., 287 U.S. 45, 53 (1932) 160. See id. re Tribune Co., 784 F.2d 1518, 1522-23 (11th (“It is hardly necessary to say that, the right 161. Waller v. Georgia, 467 U.S. 39, 46 Cir. 1986) (protection of jurors’ privacy to counsel being conceded, a defendant (1984) (Under the Sixth Amendment, any interests justified closure of voir dire should be afforded a fair opportunity to closure of a suppression hearing over the examination); United States v. Brice, 649 F.3d secure counsel of his own choice.”). objections of the accused must meet the 793, 796-97 (D.C. Cir. 2011) (protection of 175. See Gonzalez-Lopez, 548 U.S. at following tests: the party seeking to close the victims from invasions of privacy justified 146-48. hearing must advance an overriding interest sealing material witness proceedings). 176. See Criminal Justice Standards and that is likely to be prejudiced; the closure 169. See, e.g., United States v. Three Best Practices During the COVID-19 must be no broader than necessary to Juveniles, 61 F.3d 86, 86-91 (1st Cir. 1995) Pandemic, Federal Defenders, CJA Panel protect that interest; the trial court must (closure justified to protect juvenile Representatives for the SDNY and EDNY, consider reasonable alternatives to closing defendants accused of hate crimes from and the New York Council of Defense the hearing; and it must make findings stigma and public scrutiny). Lawyers (May 2020). adequate to support the closure.). 170. See, e.g., In re Tribune Co., 784 F.2d 177. A. MEHRABIAN, SILENT MESSAGES: 162. In re Oliver, 333 U.S. 257, 272 (1948). at 1522-23 (protection of ongoing criminal IMPLICIT COMMUNICATION OF EMOTIONS AND 163. Vidal v. Williams, 31 F.3d 67, 69 (2d investigations and jurors’ privacy interests ATTITUDES 43 (2d ed. 1981) (emphasis added). Cir. 1994); see also Guzman v. Scully, 80 F.3d justified closure of voir dire examination). 178. Id. 772, 776 (2d Cir. 1996) (“The exclusion of 171. See, e.g., United States v. Smith, 179. L. Vanderkam, The Science of When courtroom observers, especially a 426 F.3d 567, 572-74 (2d Cir. 2005) (security You Need In-Person Communication, FAST defendant’s family members and friends, and prevention of terrorism justified COMPANY (Sept. 30, 2015), https://www.fast even from part of a criminal trial, is not a identification check of public prior to company.com/3051518/the-science-of step to be taken lightly.”). granting entry to public trial). -when-you-need-in-person-communication COVID-19’S NEXT VICTIM? THE RIGHTS OF ACCUSED 164. United States v. Rivera, 682 F.3d 172. See, e.g., Nixon v. Warner Commc’ns, ?key5sk1=d8b84d63a15a5376b726d3e2263 1223, 1229 (9th Cir. 2012). Inc., 435 U.S. 589, 610 (1978) (public access 8f2fd4e85f789&af=13996 165. Id. at 1230. and trial requirements of First and Sixth 180. J. Schroeder & J. Risen, Handshaking 166. See Richmond Newspapers, Inc. v. Amendments satisfied by “opportunity of Promotes Cooperative Dealmaking, University Virginia, 448 U.S. 555 (1980); see also Globe members of the public and the press to of Chicago and Harvard University (May 30, Newspaper Co. v. Superior Court, 457 U.S. 596, attend the trial and to report what they have 2014), https://papers.ssrn.com/sol3/Delivery 602-03, 610-11 (1982) (public and press have observed”); FED. R. CRIM. P. 53 (prohibiting .cfm/ https://papers.ssrn.com/sol3/Delivery a First Amendment right to be present during photographing or broadcasting judicial .cfm/SSRN_ID2443674_code698198.pdf? testimony by 16-year-old rape victim, statute proceedings); United States v. Lnu, 575 F.3d abstractid=2443674&mirid=1. requiring exclusion without particularized 298, 306 (3d Cir. 2009) (public trial 181. Id. determinations unconstitutional). requirement of Sixth Amendment satisfied 182. S. Kay, The Power of a Handshake 167. See Press-Enterprise Co. v. Superior by public’s opportunity to report on trial, Confirmed by Hot Spots in Your Brain, Everyday

44 NACDL.ORG THE CHAMPION Health (Oct. 23, 2012), https://www.every dayhealth.com/emotional-health/1023/ the-power-of-handshake-confirmed-by-hot -spots-in-your-brain.aspx. 183. See BOP Implementing Modified Operations, Federal Bureau of Prisons, https://www.bop.gov/coronavirus/covid19 _status.jsp (last accessed May 29, 2020) (“Although legal visits are generally suspended for 30-days, case-by-case accommodation will be made at the local level.”).

184. See J. Wester, Federal Defenders Say COVID-19’S NEXT VICTIM? THE RIGHTS OF ACCUSED Jailed Clients Need More Video Time with Attorneys Amid Pandemic, Law.com (May 28, 2020), https://www.law.com/newyorklaw journal/2020/05/28/federal-defenders-say -jailed-clients-need-more-video-time-with -attorneys-amid-pandemic/. 185. See, e.g., Williams v. Taylor, 529 U.S. 362, 367 (2000) (discussing defense counsel’s “obligation to conduct a thorough investigation of the accused’s background” in the context of sentencing). 186. Criminal Justice Standards and Best Practices During the COVID-19 Pandemic, supra. 187. The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It, NACDL.org (Jul. 10, 2018), at 14, https://www.nacdl .org/Document/TrialPenaltySixthAmend mentRighttoTrialNearExtinct. 188. T. Williams et al., ‘Jails Are Petri -employers.html (last accessed May 28, 2020). 198. See, e.g., People v. Capellan, 17 Dishes’: Inmates Freed as the Virus Spreads 193. See M. John & L. Shumaker, Lessons Misc. 3d 337, 341-342 (Sup. Ct. 2007) Behind Bars, N.Y. TIMES (Mar. 30, 2020), from Around the World: How Schools Are (finding a “manifest[] necessity” to declare a https://www.nytimes.com/2020/03/30/us/ Opening Up After COVID-10 Lockdowns, mistrial when a juror became ill). coronavirus-prisons-jails.html. Reuters (May 13, 2020), https://www.reuters 199. See L. Effron, California City Sees 189. See M. Chan, ‘It Will Have Effects for .com/article/us-health-coronavirus-schools/ COVID-19 Outbreaks at 9 Facilities, Including Months and Years.’ From Jury Duty to Trials, lessons-from-around-the-world-how Food Processing Plants, ABC News (May 25, Coronavirus Is Wreaking Havoc on Courts, TIME -schools-are-opening-up-after-covid-19 2020), https://abcnews.go.com/US/california (Mar. 16, 2020), https://time.com/5803037/ -lockdowns-idUSKBN22P2KC. -city-sees-covid-19-outbreaks-facilities coronavirus-courts-jury-duty/. 194. See N. van Doremalen et al., Aerosol -including/story?id=70871509. 190. See id. and Surface Stability of SARS-CoV-2 as 200. See M. Richtel, The Pandemic May 191. COVID-19 Employer Information for Compared with SARS-CoV-1, 382 N. ENG. J. MED. Mean the End of the Open-Floor Office, N.Y. Office Buildings, Center for Disease Control 1564-1567 (Apr. 16, 2020), https://www.nejm TIMES (May 4, 2020), https://www.nytimes and Prevention, https://www.cdc.gov/co .org/doi/full/10.1056/NEJMc2004973. .com/2020/05/04/health/coronavirus-office ronavirus/2019-ncov/community/office 195. V. Stadnytskyi et al., The Airborne -makeover.html. -buildings.html (last accessed May 28, 2020); Lifetime of Small Speech Droplets and Their 201. See Criminal Justice Standards and see also Rational Use of Protective Personal Potential Importance in SARS-CoV-2 Best Practices During the COVID-19 Equipment for Coronavirus Disease 2019 Transmission, Stanford University (Jun. 2, Pandemic, supra. n (COVID-19), World Health Organization (Feb. 2020), https://www.pnas.org/content/117/ 27, 2020), https://apps.who.int/iris/bitstream/ 22/11875 (“normal speech generates About the Author handle/10665/331215/WHO-2019-nCov airborne droplets that can remain suspended -IPCPPE_use-2020.1-eng.pdf (recommending for tens of minutes or longer and are Dubin Research & Consulting is a nation- “physical barriers to reduce exposure to eminently capable of transmitting disease al litigation consulting firm specializing the COVID-19 virus, such as glass or plastic in confined spaced.”). in jury selection, focus groups, trial strat- windows” in “areas of the healthcare 196. Id. egy, and demonstrative aids. setting where patients will first present, 197. See A. Ragupathi, Rutgers such as triage areas”). Researchers Develop 45-Minute Test Dubin Research & Consulting 192. Meat and Poultry Processing Workers Coronavirus, DAILY TELEGRAM (Mar. 26, 2020), New York, NY and Employers, Center for Disease Control and https://www.dailytargum.com/article/ 212-219-1469 Prevention, https://www.cdc.gov/coronavi 2020/03/rutgers-researchers-develop-45 EMAIL [email protected] rus/2019-ncov/community/organizations/ -minute-test-for-coronavirus (confirming the WEBSITE www.dubinconsulting.com meat-poultry-processing-workers availability of a 45-minute test for COVID-19).

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