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June 4, 2020

"Criminal Court Reopening and Public Health in the COVID-19 Era: NACDL Statement of Principles and Report"

The title of this post is the title of this notable new report coming from the National Association of Criminal Defense Lawyers.  This press release summarizes some highlights: 

The National Association of Criminal Defense Lawyers (NACDL), with support from the NACDL Foundation for Criminal Justice (NFCJ), today released a comprehensive set of principles and report — Criminal Court Reopening and Public Health in the COVID-19 Era. As explained in detail in the report, “[g]iven the nature of the disease and the manner of transmission, court proceedings, especially jury trials, present a grave risk to all participants, including the public which has a fundamental right to attend.”

“We know from the science that across the nation the characteristics of courtrooms, courthouses, and the proceedings that occur inside them, present precisely the type of settings in which the virus spreads most efficiently — enclosed spaces requiring close proximity for an extended period of time,” said NACDL President and Task Force on Criminal Court Reopening Member Nina J. Ginsberg.  “While NACDL recognizes the inherent tension between the protection of an accused person’s fundamental right to a speedy trial, for example, and the delay necessary to protect the health and safety of everyone involved in jury trials, this statement of principles and report provide a roadmap to minimizing that constitutional burden while protecting the health and safety of all individuals involved in the conduct of a constitutional criminal proceedings in the United States.”

Virtual or remote proceedings are inherently inconsistent with fundamental constitutional rights.  Accordingly, among the recommendations included in the report are that the use of virtual proceedings be limited to the maximum extent possible, both in scope and duration, and only used with the knowing and informed consent of the accused. The report calls for far greater use of pre-trial release and other mechanisms, such as providing the accused with the unilateral right to elect a bench trial where that right does not already exist.

“There are also significant and unacceptable constitutional burdens on the accused that accompany criminal proceedings, live or virtual, in the midst of this uncontrolled pandemic, including on the right to counsel, the right to confront witnesses, the right to due process, and the right to a public trial by a jury representing a fair cross section of the community,” Ginsberg added.

As provided in the report, because of numerous constitutional concerns, the absence of a vaccine or rapid testing, and highly-infectious asymptomatic transmission, the fact is “that resuming criminal jury trials — particularly in areas of significant community-based transmission — would not only be reckless and irresponsible, but would also undermine the truth-seeking purpose of trials given the well-documented and understandable fear, panic, and uncertainty on the part of jurors, witnesses, court staff, deputies, judges, prosecutors, and defense counsel.”

UPDATE: Here are just a few recent press pieces providing some additional perspectives on this topic:

"Judges Worried About Virus' Impact On Upcoming Trials"

"Your right to a jury trial is on hold. Here’s how coronavirus is changing the justice system"

"Judges try to balance legal rights and courtroom health"

June 4, 2020 at 01:53 PM | Permalink

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