Columns share an author’s personal perspective.

The pandemic has altered the way justice is meted out in courtrooms across the country. While courts have tried to be innovative, video conferencing and closed courtrooms are not what the founding fathers had in mind when drafting the Bill of Rights.

No amendment to the Constitution has been trampled on, in the name of public health, more than the Sixth Amendment.

The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury ... be confronted with the witnesses against him ... and to have the assistance of counsel for his defense.”

In 1932, the U.S. Supreme Court ruled that the U.S. Constitution required defendants in capital cases be given access to counsel upon request.

Ten years later the court refused to extend the right to counsel to criminal charges other than capital murder. The court held that a refusal to appoint counsel for an indigent defendant charged with a felony did not violate the U.S. Constitution.

In the landmark case of Gideon v. Wainwright, the court found that a person accused of a serious crime was entitled to free legal counsel.

Today, courthouses are closed - public defenders and prosecutors have been furloughed and judges are on call. The right to counsel is being tested across the country. Having access to counsel is fundamental.

The aid of counsel helps preserve all the other protections provided by the Sixth Amendment.

For instance, the Sixth Amendment also provides that those accused of a crime are entitled to a speedy and public trial by a jury of their peers. Unfortunately, those clearly established rights have been set aside by governors and judges for the sake of protecting the public from a highly contagious disease.

Jury trials have essentially disappeared in this era of COVID-19. Certainly, there is concern that 12 jurors sitting side by side for days or being housed for an extended period of time in a room deliberating a verdict is a legitimate health risk. However, men and women accused of crime have a right to be heard in a timely manner.

The matter is further complicated by the fact that some of those accused of a crime are sitting in jail awaiting trial. Their lives are at risk as well. Hygiene is at a premium and social distancing is a utopian idea behind bars.

The Sixth Amendment also provides that those accused of a crime have the right to “be confronted with the witnesses against him.”

This is where innovation has complicated matters. Many courts have adopted measures to deal with emergency criminal cases. For instance, some courts have adopted the use of video conferencing to deal with bond hearings, preliminary hearings and other time sensitive matters when an accused is sitting in jail awaiting trial.

Cross-examining witnesses through video conferencing can be challenging, especially when the judge, witness and lawyers are all in different locations. When the Constitution provided that an accused has the right to confront witnesses - that confrontation was in person.

When a lawyer and her client are in two different locations, communication with the client during the proceeding is impossible. The Defendant can simply not aid in her defense.
Even after the pandemic - what is done today will have an impact for years to come. Every proceeding in court is transcribed. The reason to transcribe a proceeding is to create a record of the testimony and evidence that is presented to the court for possible review on appeal.

In our new world of virtual justice, if counsel objects to specific testimony, often the witness continues to talk, conveying evidence to the court that might have not have otherwise been admissible.

Creating a good record with remote witnesses is very difficult. Counsel, witnesses and even judges can at times talk over one another. Creating a clear record for appeal is going to be a daunting task.

What is the big deal?

The Sixth Amendment protects those who have been accused of a crime - not convicted. Protecting the public from the transmission of COVID-19 is a laudable goal, but trampling on the U.S. Constitution to do it is risky business.