Articles Posted in Current Events

In the wake of the COVID-19 pandemic, Virginia courts all but shut down, hearing only emergency matters for many months. However, in recent weeks, courts have begun to re-open to address the backlog of cases that has resulted from the months-long shutdown. As courts open up, many Virginia criminal defense attorneys are concerned about the ability of a defendant to receive a fair trial given the challenges of conducting a trial during the COVID-19 pandemic.

Holding a jury trial during the pandemic gives rise to several potentially serious problems, as it is difficult to ensure that a defendant’s constitutional rights are adequately protected. The following are among the concerns that the COVID-19 pandemic presents to those facing serious criminal charges:

Right to a fair jury – Under the Sixth Amendment to the United States Constitution, criminal defendants are guaranteed the right to a trial by a jury of their peers. Subsequent case law further requires that a jury is composed of a fair cross-section of society. Some have raised concerns that a large number of people will fear the health risks of serving on a jury during the COVID-19 pandemic. Conducting a jury without these people, many of which may be more liberal-leaning, could result in a jury with a more conservative slant, potentially depriving a defendant of their right to a fair and impartial jury.

In the wake of the COVID-19 crisis, for the most part, Virginia courts have remained closed. While courts will hear certain emergency petitions, criminal trials are yet to resume. Indeed, courts across the country are struggling with how to conduct trials while ensuring that all participants remain safe.

One option that has gained considerable attention is the use of two-way video technology. In theory, there are various ways that courts can use this technology. One of the most common proposals involves having the jury sequestered in another room while viewing the testimony of witnesses over video rather than in person. This alternative involves the defendant, defense counsel, the prosecutor, the judge, and the witness all remaining in the courtroom.

Another alternative that some have suggested is allowing witnesses to testify remotely, through the use of two-way video. This option would likely be used in conjunction with the above example, where the jury is also removed from the courtroom. However, unlike the previous option, the witness would not be physically present in the courtroom.

The novel coronavirus, or COVID-19, has affected more than the two million people who have been infected with the virus, and the more than 110,000 people who have died from it. The government’s response to the virus has impacted every American in unimaginable ways. From school and business closures to stay-at-home orders, the last few months have been challenging for everyone, even those who were fortunate enough to remain healthy.

The latest changes Virginians are facing is a new law that requires they wear cloth coverings over their face. The Centers for Disease Control have recommended that the use of masks reduces the spread of COVID-19. However, the choice to wear a mask remained optional until recently. Last month, Governor Ralph Northam signed an executive order requiring Virginians to wear cloth coverings – or face masks – while in certain public places. The objective of the new executive order is to reduce the spread of COVID-19, which, as of early June, had infected nearly 50,000 people in Virginia and claimed over 1,500 lives.

Executive Order 63 went into effect May 29, 2020, and requires individuals over the age of ten wear a mask when visiting the following places and businesses:

Beginning in February of this year, the COVID-19 pandemic rapidly swept across the country, spreading to all fifty states within a matter of days. In response to the pandemic, state and local governments have enacted laws to require residents to do their part to stop the virus from spreading. One of the best ways to prevent COVID-19 from spreading is to maintain a social distance of at least six feet, and to wear a cloth mask that covers the face.

In Virginia, Governor Ralph Northam recently signed an executive order requiring many Virginians wear masks when they are out and about. According to Executive Order 63, those who are ten years old and older must wear a cloth mask over their face in certain settings. The mask must cover their nose and mouth, as described by the Centers for Disease Control.

Notably, masks do not need to be work every time someone is in public. Executive Order 63 clarifies that masks only need to be work in the following situations:

The COVID-19 pandemic is shedding light on how quickly infections spread in confined areas, such as in Virginia prisons and jails. Older adults and those with certain medical conditions are at a heightened risk of experiencing severe and potentially life-threatening illnesses after exposure to COVID-19. Given the accelerating rate of COVID-19 infections throughout the world, it is inevitable that almost every Virginia prison and jail will experience an outbreak to some degree. The rapid spread of the disease may have devastating effects on the well-being of those who work or are confined to Virginia prisons and jails.

In response to the growing concern of the health and safety of incarcerated individuals, corrections officers, and those that live in communities near these facilities, the World Health Organization (WHO) has provided guidance for responding to COVID-19 outbreaks in detention facilities. Included in this guidance is the importance of wide-scale testing, screening, and treatment for the infection. Despite, incarceration, individuals at these facilities maintain the constitutional right to appropriate healthcare treatment and services.

The WHO’s recommendation is challenging for Virginia correctional facilities because the guidance is not tailored to these types of environments. First, testing and screening for COVID-19 is the most critical part of mitigating the spread of the infection; however, it is unclear whether communities are requesting and receiving enough tests to account for the prison population. Further, most correctional institutions lack the appropriate number of medical supplies, such as personal protective equipment, ventilators, and oxygen tanks. Additionally, because these facilities typically place security over an inmate’s health when allocating resources, they tend to lack an appropriate number of healthcare workers. Given the relationship between correctional officers and incarcerated individuals, it is almost impossible for these facilities to abide by the Centers for Disease Control recommendations on social distancing.

Contact Information