For the Defense - Vol. 5, Issue 3 - 15

(OSHA), complaining that the courthouse wasn't safe
because precautionary protocols weren't consistently
followed. While-at the time of this writing-daily new
coronavirus cases in Pennsylvania are far lower than in
other states, the daily number of new cases topped out
in July at 1,038 on July 16, almost three times higher
than the number of new cases just a month before.7
All this likely means that some hearings will need to
continue online to some degree for an indeterminant
period, to keep people safe. Not everything can (or
should) be conducted online, but to keep cases moving
and to get clients out of jail, we must adapt, like good
trial lawyers always do. Below are some things to
consider before agreeing to an online criminal court
proceeding and tips for effective advocacy in virtual
courtrooms if you do.

First, Set Your Limits For Which
Proceedings Should and Should Not
Occur Online
The first part of any courtroom advocacy is the
preparation. Part of preparing for online advocacy is
deciding what proceedings you are and are not willing
do to online. Your sense of what should happen online
rather than in person may differ from the court's sense
of what is feasible. Your priorities will include what
is best for your client and what is Constitutionally
permissible. Courts may prioritize moving cases in a way
that conflicts with the way you prioritize your clients'
rights. That same tension may exist when it comes to
how safety is prioritized by the courts. Accordingly,
lawyers need to know their local court's COVID-19
procedures, how to preserve objections related to those
procedures, and how those rules impact your greater
appellate strategy. As you evaluate whether you should
push for in-person hearings, there are several sources to
turn to for guidance.
The primary consideration is the Sixth Amendment.
The Sixth Amendment says that, "(i)n all criminal
prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been
committed, which district shall have been previously
ascertained by law, and to be informed of the nature
and cause of the accusation; to be confronted with
the witnesses against him; to have compulsory process
for obtaining witnesses in his favor, and to have the
Assistance of Counsel for his defense."8 Embedded in
this text are several guarantees that create inherent
tension over whether hearings should be online or
in person. The Sixth Amendment rights force several
questions to the forefront.

*	 The Sixth Amendment guarantees a public trial,

but can this happen in a physical courtroom
where social distance safety precautions dictate

*	

*	

*	

that as few people as possible are physically
present?
The Sixth Amendment also ensures the right
to an impartial jury; but, given the evidence of
the disproportionate medical impact COVID-19
has on the elderly, those with pre-existing
medical conditions, and communities of color
as well as its disproportionate economic
impact on communities of color, lower income
households, and women, will an adequate
cross-section of prospective jurors be willing to
come to court?
The Sixth Amendment provides for the right to
confront witnesses, which the Supreme Court
has interpreted to mean in-person, face-toface confrontation, absent specific, narrow
exceptions.9 What will appellate courts decide
when they examine whether the exigent
circumstances created by the coronavirus
meet the Craig exception to face-to-face
confrontation?
In perhaps the most challenging contradiction,
the Sixth Amendment also guarantees a speedy
trial. In its March 16 order, the Pennsylvania
Supreme Court gave President Judges of
individual counties the power to suspend Rule
600, the speedy trial rule in criminal cases.10
Many counties did. Of course, for any client in
custody, with each passing day, the pressures to
plead intensify to escape both the immediate
common consequences of incarceration and
the unique, but clear, medical danger now part
of daily life in jail.11

Another thing to consider when evaluating which
criminal proceedings can be conducted online, is the
Ten Principles on Criminal Court Reopening and Public
Health in the COVID-19 Era, set forth by the National
Association of Criminal Defense Lawyers (NACDL).
Those principles include:12
1.	
	
	
2.	
	
	
	
	
	
3.	
	
	
	
4.	
	
	
	
	
5.	

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

Vol. 5, Issue 3 l For The Defense

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For the Defense - Vol. 5, Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 5, Issue 3
