“Can You Hear Me Now?”: The Implications of Virtual Proceedings on Criminal Defendants’ Constitutional Rights

Madison C. DeRegis

For centuries, “Friday the Thirteenth” has been seen as a harbinger of bad luck. Friday, March 13, 2020 lived up to this superstition. That day, then-President Donald Trump announced a state of national emergency in response to the World Health Organization (“WHO”) declaring the coronavirus SARS-CoV2 (“COVID-19”) a pandemic. This announcement led many states and localities to shutdown non-essential business for more than two months to support the WHO’s quarantine and social distancing guidelines. The nationwide shutdown initially included court systems, aside from emergencies. The United States Senate passed the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act in the wake of the national emergency announcement, which allocated more than two trillion dollars to aid hospitals, small businesses, and governments. The federal court system received a large virus stimulus payment to allow it to keep its doors open virtually. Both the federal and state systems progressively increased the use of virtual platforms like Zoom to conduct court proceedings and eventually resumed some in-person proceedings. Today, many courts use a hybrid system that creates uncertainty surrounding the long-lasting impacts of virtual platform use by the judiciary. This Comment outlines the foundations of current Sixth and Fourteenth Amendment jurisprudence in criminal proceedings and the present application of technology in criminal proceedings, respectively. Next, this Comment argues that virtual proceedings implicate defendants’ constitutional rights. This Comment further details why the use of virtual proceedings should be limited to a few select proceedings, and explains why federal and state courts need to adopt judicial rules governing the conduct of virtual proceedings.