Signed into law by the president on March 27, 2020, the COVID-19 fiscal stimulus law, formally known as the Coronavirus Aid, Relief, and Economic Security Act, Public Law No: 116-136 (the CARES Act), contains a host of provisions related to the epidemic. Most involve emergency funding and health care measures. But one provision in this 335-page law, Section 15002, authorizes new criminal justice procedures by video or telephone in certain circumstances. In this alert, we discuss the application and requirements of these new provisions, as they will potentially govern all federal criminal proceedings so long as the current emergency lasts. 

Section 15002(b)(1) of the CARES Act authorizes the federal courts, upon a proper finding by the Judicial Conference of the United States that the national COVID-19 emergency "will materially affect the functioning of either the Federal courts generally or a particular district court of the United States," to conduct video teleconferencing, or telephone conferencing if video conferencing is not reasonably available, in a host of criminal proceedings, including detention hearings, initial appearances, preliminary hearings, waivers of indictment, arraignments, and misdemeanor pleas and sentences. The Act also contains a separate subsection, Sec. 15002(b)(2), which authorizes the federal courts, upon a proper finding of emergency by the Judicial Conference, a specific finding by the chief judge of the district court that pleas or sentencings "cannot be conducted in person without seriously jeopardizing public health and safety," and a specific finding by the assigned district court judge that there are "specific reasons that the plea or sentencing in that case cannot be further delayed without serious harm to the interests of justice," to conduct felony plea and sentencing hearings by video conference, or by telephonic conference if video proceedings are not reasonably available.  

Before video or telephonic proceedings can occur, the new law requires satisfaction of four procedural requirements. First, the government or a judge or justice of the court must move for video or telephonic proceedings. Second, the Judicial Conference, the Chief Judge, and the assigned judge must make the respective findings of necessity. Third, the defendant must provide informed consent to the use of video or telephonic proceedings, after consultation with counsel. Finally, the use of these video or telephonic proceedings must not "obviate a defendant's right to counsel under the Sixth Amendment to the Constitution of the United States, any Federal statute, or the Federal Rules of Criminal Procedure."  Section 15002(b)(7).

Although the CARES Act was adopted on March 27, 2020, only two days later, on March 29, 2020, the Judicial Conference of the United States found "that emergency conditions due to the national emergency declared by the president" with respect to COVID-19 "have materially affected and will materially affect the functioning of the federal courts generally" – the finding required to invoke the procedures described under Section 15002(b)(1) & (b)(2). In addition, a number of district courts (including those in Washington DC and the Eastern District of Virginia) have already begun issuing orders containing the emergency findings that, under the new law, can be used to justify holding video and/or telephonic hearings.  

A number of questions remain unanswered going forward. In the first place, while the new law permits these sorts of virtual procedures only where the defendant consents after consultation with counsel, it is unclear how courts will address the coercive circumstances in which any consent by an incarcerated defendant occurs. Given the findings by the Judicial Conference and by many Chief Judges about the dangers of in-person hearings, live judicial proceedings will continue to be unavailable during the pandemic. Thus, trials will not occur, live detention hearings will not occur, and live sentencings will not occur. To the extent these delayed hearings prevent the release of presumptively innocent defendants, "consent" to a virtual hearing will arise in circumstances where it allows for the possibility of an earlier release from detention (under circumstances where the detention has become far more dangerous than it was before the pandemic), and where the only alternative to consent is the certainty of continued detention under the pandemic is over. The validity of any "consent" in such circumstances is a serious issue. While that issue may not become important in many cases, it almost certainly will arise later if facts found during the virtual hearing are relied on later in the proceedings or the occurrence of the hearing is used to prevent further inquiry into the same issues after the emergency has lifted. In short, while the consent provisions in the law do provide certain protections to defendants against the use of insufficient procedures, it is likely that, at least some cases, disputes will arise about whether any consent was valid. 

The second question arising from the new law is whether these hearings must be presumptively open to the public and if so, how the public can gain access to the hearings. The Constitution generally requires public judicial proceedings, but the use of video or telephonic conferencing creates challenges to that requirement. The new law is silent on the subject but on April 3, 2020, the Administrative Office of the United State Courts provided revised guidance announcing that “Media organizations and the public will be able to access certain criminal proceedings conducted by videoconference or teleconference for the duration of the coronavirus (COVID-19) crisis.”  See April 3, Office of the Courts announcement, accessed here. Given the recency of the announcement, it is currently unclear how this new guidance will be applied as a practical matter.  

A third question arising from the new law is one of duration. On its face, Section 15002 applies only for as long as the COVID-19 national emergency remains in place. It also requires that any judicial findings must be revisited within 90 days. This creates some boundaries on how long these new authorizations will last. However, whether the courts will seek to expand the use of these virtual proceedings after the COVID-19 pandemic passes is an open question. Serious questions exist about the constitutionality of such procedures in the absence of an emergency. However, particularly with regard to some of the ministerial proceedings described in Section 15002(b)(1), courts may find that the use of virtual proceedings creates more efficiency without meaningfully sacrificing fair process. All of this remains to be seen as we work through this new and very different world.

For more information, please contact:

Timothy P. O'Toole, totoole@milchev.com, 202-626-5552

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