- Pandemic ProceedingsLegal Performance in the Time of Covid-19
Just two weeks after the federal government’s declaration of a national emergency on March 13, 2020, the Congress of the United States passed the Corona virus Aid, Relief, and Economic Security Act (known as the CARES Act), a law designed to provide a range of emergency assistance to address the impact of the novel coronavirus. Included in its provisions are a number of measures directed to the judiciary, effective for the period from the beginning of the emergency until thirty days after it is declared to be over, one of which concerns “Video Teleconferencing for Criminal Procedures.” This part of the law (sec. 15002) empowers “the chief judge of a district court . . . [to] authorize the use of video teleconferencing, or telephone conferencing if video teleconferencing is not reasonably available,” in a range of legal proceedings if the judge feels the functioning of the court has been materially affected by the pandemic.
The judges in question took up the offer. Freda L. Wolfson, U.S. Chief District Judge for the District of New Jersey, issued a Standing Order (2020-06) on March 30, 2020, declaring that since “criminal proceedings cannot be conducted in person without seriously jeopardizing public health and safety,” video teleconferencing or telephone conferencing should be used in lieu of personal appearances in court for a variety of legal proceedings, the same ones listed in the text of the CARES Act. Similarly, Chief Judge Colleen McMahon of the United States District Court for the Southern District of New York issued an order (M-10-468) that suspends jury trials in that district indefinitely in light of the difficulties of empaneling juries created by the coronavirus pandemic. (It is worth noting that the CARES Act applies only to the federal judiciary; state and local jurisdictions are able to make their own determinations as to when to resume jury trials, independent of when the federal emergency is declared to be over.) [End Page 77]
The legal proceedings mentioned in the CARES Act and the orders that flowed from it are all situations in which someone might appear before a judge: arraignments, initial appearances, preliminary hearings, misdemeanor pleas and sentencings, and the like. It is important to observe, first, that the CARES Act does not permit conducting trials by video teleconferencing, even under life-threatening emergency conditions, and second, that it required legislation for even the routine appearances mentioned in these documents to be carried out through mediatized communication rather than live physical co-presence in a courtroom. This speaks to the way live presence and performance in the courtroom are deeply engrained in the procedural fabric of American jurisprudence, a theme I take up in greater detail in Liveness: Performance in a Mediatized Culture.1
One of the foundational principles of the American system of justice is enshrined in the so-called confrontation clause of the Sixth Amendment to the United States Constitution, which guarantees the accused the right “to be confronted with the witnesses against him.” This clause has been an insurmountable obstacle to attempts at conducting trials by any means other than as live performances in an open courtroom. The clause enshrines the key belief underpinning jurisprudence in the United States that live, face-to-face confrontation in the ritual space of the courtroom is the only means to the revelation of truth. Although the CARES Act did not make a teleconferenced trial any more likely than it had ever been, it did spur a renewed discussion of the issues surrounding the idea.
The idea of doing trials online or via teleconferencing is not new. China instituted so-called “Internet Courts” designed to adjudicate conflicts arising from e-commerce and the infringement of rights online back in 2017. “The Internet courts are the first courts in China where the entire litigation process can be conducted online, including filing and service of documents, collection and presentation of evidence, preservation of assets, the trial, judgment, enforcement, appeal and other processes.”2 In the United Kingdom, Richard Susskind has advocated for the increased use of information technologies in the legal arena for the past thirty years, during...