COVID and the Courts: Access to Justice During a Pandemic

Courtroom via Flickr user Karen Neoh, licensed under CC BY 2.0

By: Samira Elhosary

A year into the coronavirus pandemic in the US, both state and federal courts are struggling to deal with health protocols. Social distancing and crowd guidelines mean that some courthouses are unable to operate as they used to, while concern for their employees’ health have had others making huge changes. Some actions taken by courts include suspending in-person proceedings in favor of video proceedings, limiting jury trials, discouraging entrance into courthouses, and granting extensions for filing deadlines and payments.[1] These changes have provided benefits to low-income stakeholders in the legal system, but have also caused problems in both civil and criminal cases. This blog will examine the changing landscape courts have experienced in the wake of coronavirus and discuss some steps courts might take moving forward to encourage equitable access for all parties.

Courts’ increasing use of remote proceedings have proved beneficial in some ways for low-income stakeholders. The costs associated with seeking justice, including taking time off, travel to and from the courthouse, and cost of childcare, often discourage low-income litigants from pursuing justice or otherwise engaging with the legal system.[2] When people are able attend hearings remotely, these costs are significantly lower, or even eliminated.[3] Legal services organizations have been able to utilize technology to provide services to sparsely populated areas which they have previously been unable to access.[4] Additionally, virtual proceedings allow courts to engage interpreters for a larger variety of languages than they are able to provide on-site.[5] Providing these services means that more people for whom English is not their first language are able to engage meaningfully with the legal system. Finally, public access to proceedings is heightened when they are held virtually, since there is no restriction caused by the physical space of the courtroom.[6] This has the added benefit of strengthening justice since there is the potential for many more witnesses to the proceeding, including members of the media.

While there are important benefits, remote proceedings also have drawbacks, especially for low-income litigants. Studies done on outcomes of virtual proceedings have demonstrated that criminal defendants are more likely to face higher bond amounts, immigration detainees are more likely to be deported, and witnesses are perceived to be less credible.[7] For criminal defendants, there are several sixth amendment concerns with virtual proceedings. Defendants have the right to confront their accusers and the Supreme Court has held that this means face-to-face confrontation.[8] Criminal defendants in virtual trials may not be able to see their accusers in a way that fulfils this requirement. Additionally, the right to effective counsel is hampered if even the most talented lawyer is unable to zealously advocate for their client over a video platform due to technology or other difficulties.[9] Studies have also found that the attorney-client relationship is hampered if the virtual platform does not provide for confidential discussion.[10] Importantly, courthouses often serve as a forum for low-income litigants to receive free legal resources or counseling, a benefit which is all but eliminated when proceedings are virtual.[11] This is especially important for pro se parties who require significant support to navigate the justice system.[12]

Moving forward, both federal and state courthouses and judges can take some important steps to make sure the legal system is as equitable as possible for all parties. First, they should encourage and engage with more research into the effects of remote hearings on the outcome of proceedings. Second, judges should be purposeful about which proceedings can be remote and which must be in person. Not all proceedings work well over video, such as evidence-intensive hearings or ones requiring cross-examination.[13] Finally, courthouses should consider the unique challenges faced by low-income litigants and how they can best be met and adjusted for remote proceedings. Decision-makers for the courthouse can bring communities of color, immigrant communities, and people with disabilities into the process of deciding which resources to prioritize providing in person versus creating a virtual alternative.[14] They should consider that many low-income litigants do not have access to the technology to participate in virtual proceedings, especially with the closing of libraries and other public spaces which many rely on for computer use.[15] Virtual proceedings may save time and resources for courts even after the pandemic, but use must be thoughtful and tailored to ensure all parties have meaningful access to the justice they deserve.


[1] Coronavirus and the Courts, National Center for State Courts https://www.ncsc.org/newsroom/public-health-emergency

[2] Civil Justice Improvements Committee, Call to Action: Achieving Civil Justice for All, National Center for State Courts (2016)

https://iaals.du.edu/sites/default/files/documents/publications/cji-report.pdf

[3] Alicia Bannon & Janna Adelstein, The Impact of Video Proceedings and Access to Justice in Court, Brennan Center for Justice Sept. 10, 2020, https://www.brennancenter.org/our-work/research-reports/impact-video-proceedings-fairness-and-access-justice-court

[4] Id.  (describing a 2007 study in Montana).

[5] Douglas Keith & Alicia Bannon, Principles for Continued Use of Remote Court Proceedings, Brennan Center for Justice Sept. 10, 2020, https://www.brennancenter.org/our-work/research-reports/principles-continued-use-remote-court-proceedings

[6] Waller v. Ga, 467 U.S. 39 (1984)

[7] Bannon and Adelstein, supra note 3.

[8] U.S. Const. amend VI; Coy v. Iowa, 487 U.S. 1012 (1988).

[9] U.S. Const. amend VI; Perry v. Leeke, 488 U.S. 272 (1989).

[10] Keith & Bannon, supra note 5

[11] Bannon and Adelstein, supra note 3 (discussing study that shows immigration litigants that appear in person are 35% more likely to obtain counsel).

[12] Keith & Bannon, supra note 5

[13] Id.

[14] Id.

[15] Bannon and Adelstein, supra note 3.