News Release

Nation’s Criminal Defense Bar: Jury Trials Not Safe Until COVID-19 Pandemic Under Control

NACDL Issues Statement of Principles and Report – “Criminal Court Reopening and Public Health in the COVID-19 Era”

Washington, DC (June 4, 2020) -- 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.”

The full Statement of Principles and Report is available here.

The Summary of Core Principles for Reopening Courts, also set forth in the report, is provided below:

Summary of Core Principles for Reopening Courts

  1. In-Person Proceedings Must Be Certified by Independent Medical Experts to Present Minimal Risk of COVID-19 Transmission

  2. High-Risk Individuals Should Not be Required to Participate in In-Court Proceedings in Which There is a Risk of Infection in the Courthouse, Nor Should That Person or the Accused Suffer Any Penalty or Loss of Rights for Declining to Participate

  3. Any Measures Implemented to Address the Pandemic Must Be Limited to the Duration of the Pandemic and Tailored to Meet an Articulated Public Health Need

  4. Criminal Proceedings Require That Conditions Are Restored That Ensure Defense Counsel Can Meet Their Sixth Amendment Obligations, Including the Conditions Necessary for Robust, Ethical Attorney-Client Relationships

  5. Criminal Proceedings Require That Conditions Are Restored That Ensure Effective Representation by Conflict-Free Defense Counsel

  6. Constitutional Rights Must Not Be Abridged

  7. Use of Virtual Mechanisms Must Be Temporary, Limited, and Consistent with Constitutional Rights

  8. Use of Virtual Mechanisms Requires the Informed and Voluntary Consent of the Accused Based on a Robust Attorney-Client Relationship

  9. Any Measures Implemented to Address the Pandemic Must Not Exacerbate the Well-Recognized Historic Failures of the Criminal Legal System

  10. Courts Should Use Pre-Trial Release and Other Mechanisms to Minimize the Pressures on the Accused During the Pandemic, Including Affording an Accused the Unilateral Right to Elect a Bench Trial Where that Right Does Not Already Exist

Contacts

Ivan Dominguez, NACDL Senior Director of Public Affairs and Communications, (202) 465-7662 or idominguez@nacdl.org

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.