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Courts Continue to Adapt to Covid-19

Whether online or in person, courts have resumed across the country, but delivering smooth operations and equal justice remains a challenge.

September 10, 2020
Myung J. Chun/Getty

Since the explo­sion of the Covid-19 pandemic in March, courts have turned to short- and long-term solu­tions to ensure that the public has continu­ous access to our justice system. Though most federal and state courts initially closed their doors to prevent the spread of Covid-19, many are now rapidly adapt­ing their oper­a­tions as they seek to estab­lish a new normal.

The Bren­nan Center has been track­ing and analyz­ing courts’ responses to the pandemic. It has also analyzed schol­ar­ship on the impact of video proceed­ings on access to justice and developed prin­ciples to inform the contin­ued use of remote proceed­ings.

Limited in-person hear­ings proceed

Several juris­dic­tions have resumed some version of in-person proceed­ings while also adher­ing to social distan­cing precau­tions. As of Septem­ber 10, 30 of the coun­try’s 94 federal district courts had issued orders allow­ing jury trials to resume. Judges and court staff have imple­men­ted new policies to make sure that courtrooms are regu­larly cleaned and jurors are at least six feet from each other at all times. In the North­ern District of Texas, for example, jurors are protec­ted by plexi­glass barri­ers and face shields.

Despite these precau­tions, courts have faced chal­lenges. In Ohio’s Ashland County Common Pleas Court, a defend­ant and his coun­sel began exhib­it­ing Covid-19 symp­toms during jury selec­tion and were taken to the hospital. Among federal district courts, at least nine have had employ­ees test posit­ive for Covid-19 since the outset of the pandemic.

Some legal defender services have expressed strong oppos­i­tion to courts reopen­ing for in-person appear­ances, arguing that doing so endangers the health of their clients, lawyers, and court­house employ­ees. In July, nine legal aid groups in New York City issued a letter to the state’s chief admin­is­trat­ive judge urging him to roll back a new policy that would restart some in-person proceed­ings. The letter argues that the “pandemic has had a dispro­por­tion­ate impact on low income Black and Brown people, the same community that is also dispro­por­tion­ately arres­ted and repres­en­ted in court cases in NYC and will bear the brunt of [the reopen­ing].” On July 14, the eve of the courts’ sched­uled reopen­ing, the legal aid groups sued New York State’s Office of Court Admin­is­tra­tion. Their motion was denied by a federal judge at the end of the month.

Evic­tions and fore­clos­ures resume

Most states have allowed judges to resume evic­tion and fore­clos­ure hear­ings, leav­ing as many as 30 to 40 million Amer­ic­ans hous­ing insec­ure. The federal CARES Act’s tempor­ary morator­ium on certain evic­tions expired on July 24. However, on Septem­ber 1, the Centers for Disease Control and Preven­tion ordered a halt on certain evic­tions nation­wide through the end of the year to “prevent the further spread of Covid-19.” The prac­tical impact of this order remains to be seen.

In at least 26 states, includ­ing Geor­giaTexas, and Flor­ida, courts have been hold­ing remote evic­tion and fore­clos­ure hear­ings to remove people from their homes, accord­ing to the Wake Forest Law Health Justice Clinic. Evic­tions by Zoom have been criti­cized by some advoc­ates as “cruel.” A missed call or a failed inter­net connec­tion, they say, can be the “differ­ence between hous­ing and home­less­ness.”

But remote hear­ings have also allowed for public scru­tiny of the evic­tion process. One case that attrac­ted recent atten­tion was that of Krisi Eiland, a single mother of three who became home­less after being evicted from her Kansas City, Missouri, home. During a remote hear­ing, the land­lord’s repres­ent­at­ive was recor­ded as saying that the tenant was “not [his] prob­lem” in a video that went viral in August.

Virtual proceed­ings remain the norm

The vast major­ity of federal and state courts imple­men­ted virtual court proceed­ings for at least part of the pandemic. The Supreme Court opted to post­pone oral argu­ments in its spring cases before reas­sign­ing about half of them to be livestreamed as audio during the spring and early summer. As of Septem­ber 10, at least 86 the coun­try’s 94 district courts and all of the federal appel­late courts were opting to hold at least some of their hear­ings remotely. And as many as 38 states currently either mandate or encour­age their courts to use virtual hear­ings when possible.

In August, Texas held what is believed to be the first virtual crim­inal jury trial for a misde­meanor case. Later that month, Flor­ida became the first state to hold a full civil jury trial entirely remotely.

Remote jury trials have not always been smooth sail­ing. In one Cali­for­nia civil case, virtual jury selec­tion promp­ted a mistrial motion, with the defend­ants alleging that the plaintiff appeared to be casu­ally talk­ing to some of the prospect­ive jurors while the coun­sel and judge were in a separ­ate video chat. The complaint also alleged that one prospect­ive juror appeared to be laying in “a bed, curled up, and possibly asleep,” and that another juror was “work­ing out on an ellipt­ical machine.” The judge denied the motion, though the court subsequently insti­tuted some changes to the video confer­en­cing protocol by placing jurors, witnesses, and the parties in a “wait­ing room,” prevent­ing them from inter­act­ing with each other whenever the judge is not present.

Though some courts had exper­i­mented with virtual proceed­ings in the past, such wide­spread use of this tech­no­logy is unpre­ced­en­ted. Some judges have indic­ated that they would like to see video become a perman­ent feature of court oper­a­tions, while others have expressed concern that remote proceed­ings hinder access to justice.

The Bren­nan Center has found that exist­ing schol­ar­ship suggests reason for caution in the wide­spread adop­tion of video hear­ings. More research and broad stake­holder engage­ment are both crit­ical as courts’ policies continue to evolve.