Throughout the United States the country is experiencing a severe economic slow-down as only recently have cities and states begun to relax their stay at home orders in response to the Covid 19 pandemic. One of the institutions greatly affected by the social distancing regulations is the court system. The safety procedures ordered in place have had a tremendous impact on our judicial system but have not totally closed the legal system down as both criminal and civil legal actions are continuing.
A typical court building is a beehive of activity in ordinary circumstances. Apart from trials and other court appearances, the administrative apparatus of the courts take place. This apparatus includes the clerk’s office, cashier’s offices for the payment of fees, fines, and assessments and a myriad of other court offices. While courts serving large population centers are more crowded that courts found in rural settings, all are typically busy with people tending to legal matters. In these extraordinary circumstances of an ongoing pandemic the proximity of people to each other would make the courts a prime location for viral contagion.
To avoid the spread of the virus most courts have limited activity to essential matters. For instance, criminal arraignments and initial appearances continue to take place. Also, necessary hearings such as preliminary hearings to determine probable cause in criminal cases also take place. In the civil context discovery does not occur in court and can continue without court appearances. Typically, necessary appearances, hearings, and depositions are conducted remotely, using facilities such as Zoom.
However, trials are not happening in the courts practicing social distancing and other public health mandates to slow the pandemic. In some federal courts trials will not take place before August or September. Jury pools, jury boxes full of people, witnesses waiting together to testify, attorneys, court personnel, and others needed for a trial create a great possibility of contagion, making trials too dangerous. An additional concern is the movement of criminal litigants, who are in custody, to court and back introducing the Covid 19 virus into jail facilities where inmates are housed near each other.
Interestingly, the constitutional right to a speedy trial may be waived without the specific authorization of a criminal defendant. It is the only criminal constitutional right that can be waived without a defendant’s agreement. To waive the speedy trial limitations requires that a judge find that the delay is in the interests of justice.
In conclusion, persons should be aware that the courts are functioning to a degree and that the legal system continues to operate. Police are making arrests; prosecutors are bringing cases. Moreover, law enforcement personnel, both criminal and civil, are continuing to conduct investigations. In the civil arena lawsuits continue to be filed. Motion practice and discovery are continuing.The pandemic should not prevent individuals from seeking legal advice should the need arise.