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October 27, 2022
"Courts Without Court"
The title of this post is the title of this new article just published by the Vanderbilt Law Review and authored by Andrew Guthrie Ferguson. Here is its abstract:
What role does the physical courthouse play in the administration of criminal justice? This Article uses recent experiments with virtual courts to reimagine a future without criminal courthouses at the center. The key insight of this Article is to reveal how integral physical courts are to carceral control and how the rise of virtual courts helps to decenter power away from judges. This Article examines the effects of online courts on defendants, lawyers, judges, witnesses, victims, and courthouse officials and offers a framework for a better and less court-centered future. By studying post-COVID-19 disruptions around traditional conceptions of place, time, equality, accountability, and trial practice, this Article identifies how legal power can be shifted away from the courts and into the community.
October 27, 2022 at 03:23 PM | Permalink
Comments
I know in my state, we have had some push back from the defense on whether virtual courts violate the Confrontation Clause which has gained some traction.
Aside from the defense interest in being able to easily consult with the client and requiring the witness to testify in the physical presence of the defendant, having the defendant physically in court does serve the government's potential interest in incarceration by allowing court officers to take custody of the defendant if a sentence of incarceration is imposed. While a defendant can be placed on probation virtually (with the understanding that failure to report is an additional violation), an actual sentence (or even a fine) is easier to execute when the defendant is present in person.
Posted by: tmm | Oct 28, 2022 10:49:26 AM
