By: Sophie Herrmann*

 

It has been over four years since the United States declared a national emergency in response to the initial outbreak of COVID-19. It is impossible to overstate the impact of the COVID-19 pandemic on almost all areas of American life. COVID-19 radically altered the education system, the housing market, the way we work, and the way we socialize. The legal system was especially impacted by realities of the pandemic. The rapid and deadly spread of COVID-19 forced the American legal system to adjust with equal speed.

According to a report published by the United States Department of Justice titled “Access to Justice in the Age of COVID-19,” the pandemic “exacerbated structural inadequacies in the civil justice system [and] it nearly crippled the criminal justice system, which was foundationally unprepared for the pandemic’s impact.”

In Minnesota, a 60-day moratorium was imposed on almost all in-person court proceedings from November 30, 2020 until February 1, 2021. This moratorium was part of a broad transition to remote proceedings in Minnesota and across the country. According to a study conducted by Thomson Reuters, after the onset of the COVID-19 pandemic, 93% of courts in the United States “moved swiftly to pivot to some form of remote proceedings in order to continue operations.”

Over the past year and a half, courts across the country have rolled back many of their COVID-19 precautions. However, one product of the pandemic-era court system is apparently here to stay in Minnesota: Zoom hearings.

On April 19, 2022, the Minnesota State Supreme Court published an order titled “Order Governing the Continuing Operations of the Minnesota Judicial Branch.” Additionally the Minnesota Judicial Council issued oneCourtMN Hearings Initiative Policy 525, which became effective on January 3, 2023. The order and policy statement describe what role virtual technology will have in Minnesota’s legal system in a post-pandemic world.

The order and policy statement lay out the presumptive hearing format for each hearing type and provide factors for district courts to consider when determining whether to depart from the presumptive format. Importantly, however, the order and policy statement provide that for criminal cases, the decision of whether to be remote or in-person will be left up to each individual judicial district. Out of the 56 total civil hearing types, the policy states that 37 hearing types are presumptively remote. While the Minnesota Supreme Court’s judicial order provides that “[t]he presiding judge can depart from the presumptive format, either on the court’s own motion or a party’s motion, if exceptional circumstances for that departure exist,” the order lays out a high bar to obtain such a departure. In order to be granted the ability to appear in-person for a presumptively remote hearing, a judge would consider the following factors:

1. All parties, and the court, agree that the hearing should be held in person (this factor, by itself, does not constitute exceptional circumstances);
2. A party lacks access to technology to participate remotely, and the party cannot reasonably be expected to gain access to such technology before the hearing;

iii. The importance and complexity of the proceeding;

1. There are too many participants in the hearing to easily keep track of them all on a computer screen;
2. For an evidentiary proceeding, whether appearing remotely would allow for effective examination of the witness and maintain the solemnity and integrity of the proceedings and thereby impress upon the witness the duty to testify truthfully;
3. Any undue surprise or prejudice that would result; and

vii. Such other factors, based upon the specific facts and circumstances of the case, as the court determines to be relevant.

Minnesota judicial leaders have praised the continued use of Zoom hearings for their efficiency, ease, and ability to help keep participants safe. While the option to conduct hearings remotely can be a great way to accommodate out-of-custody defendants that live far away, have competing responsibilities, or would be otherwise disadvantaged by having to appear in person, the current presumptive hearing rules harm in-custody defendants who are denied the opportunity to leave jail and represent themselves and their interests in-person for their hearings.

In a Star Tribune article published in April 2022 titled “Minnesota Court Administrators Make Some Remote Hearings Permanent,” Nadine Graves, deputy director of community legal services for the Legal Rights Center in Minneapolis explains why remote hearings can be harmful for defendants. “While remote hearings can be beneficial for clients, Graves said, she worries that virtual hearings can be ‘so efficient it could be a conveyer belt of processing people through the system.’ She said that in an in-person hearing you have to look at the defendant. ‘I think you see their humanity more.’”

All individuals who find themselves in the legal system, including defendants are entitled to a fair process. Moreover, defendants are entitled to provide a robust defense, and zealously act according to their own interests. The transition to remote hearings has made it difficult to ensure that all participants’ rights are being upheld. Denying a defendant’s request for an in-person appearance at their own hearing—a hearing where their rights and liberties could be restricted–for the sake of efficiency or ease of the court or attorneys violates due process.

The ability to conduct hearings remotely when it best serves the needs of the hearing’s participants is certainly a silver-lining of the COVID-19 pandemic. However, ease or efficiency concerns should not supersede when a defendant wants to appear in-person for their hearing. There is no going back to the way things were before the COVID-19 pandemic, but, as we forge a new legal system based on the lessoned learned from the pandemic, we must never lose sight of the fundamental goals of our legal system: to act in fairness in the pursuit of justice and to protect the rights and liberties of all.

* Sophie Herrmann is a Note & Comment Editor for Volume 43 of the Minnesota Journal of Law & Inequality.