As the COVID-19 pandemic continues, court systems across the country have worked to find ways to conduct business without putting our communities at greater risk. Each state has taken a slightly different approach and as time has passed we’ve seen processes vary from county to county and even judge to judge as we all do our best to chart a path forward. Now, after a solid nine months of varying levels of seat-of-the-pants decisions, careful thought and lots of hard work and practice, I feel confident enough to explain much of what you can expect to encounter in our local court systems.
Idaho
Do not expect to walk into a courtroom in Idaho anytime soon. Pursuant to the emergency orders issued by the Idaho Supreme Court, the vast majority of court hearings are being conducted by Zoom videoconferencing software. In criminal cases, we are handling all hearings other than jury trials by Zoom, unless there is a compelling reason for a particular hearing to be held in person. In most cases, this has been a net benefit allowing people to appear in court from their homes or their jobs without having to travel to a courthouse. Zoom allows clients to connect by video or just via audio so as long as you have a phone and service, you can make it to court without a problem.
Testimony over Zoom is still fraught with challenges. There is always a concern that witnesses that are testifying outside of the courtroom may have an easier time reading off of notes or being coached while on the witness stand. There are also many non-verbal body language signs that can be more difficult to pick up on by video as opposed to in-person testimony. In large part because of these reasons, moving forward with a jury trial by Zoom is not an acceptable replacement for the in-person process. At the same time, Zoom does provide an acceptable substitute to an in-person proceeding during a pandemic for most motion hearings such as motions to suppress evidence where the alternative would be an in-person hearing with the witness wearing a face mask.
The primary concern with the inability to conduct jury trials at this point is that we are developing a serious backlog of cases that need to be tried. While most criminal cases do resolve through motions and plea agreements, that still leaves plenty of cases that need to be tested in front of a jury. When the time comes for in-person proceedings to resume, the local jury pools are going to be tested to a degree never before seen. The Idaho Supreme Court is set to review the current trial ban around the 1st of March, 2021 so we will see at that point where things stand.
Finally, a silver lining to the pandemic has been the steps to reduce local jail populations. Cases that in the past would have routinely resulted in an arrest and a weekend in jail before seeing a judge are now being handled with citations and dates to appear by video. Jail sentences upon guilty pleas or convictions are being reconsidered and alternatives such as community service and home detention are being considered where they never would have been options in the past. We are not far enough into this accidental experiment to say for sure, but anecdotally I can report that I have not seen any increase in lawlessness or extra risk to public safety that has come from this forced move towards compassion and rehabilitation. In fact, I would go so far as to say that, anecdotally, non-violent misdemeanor offenders that aren’t being required to serve time in jail, even for short stays of 1-3 days, are faring better on probation, feel better about themselves and are more successfully processing and learning from the behavior that led them into the courtroom in a way that I believe will keep them out of trouble for the long haul. Hopefully down the road we won’t forget the lessons that we’re learning right now about the limitations of jail as a sentencing tool.
Wyoming
For the time being, Wyoming is in a very similar place as Idaho in terms of conducting court by video. One key difference is that the Wyoming courts are using Microsoft Teams rather than Zoom. If you’re used to one type of platform over the other it can take some getting used to, but the primary features of both platforms are the same.
You can appear by video using a computer, tablet or smartphone with an internet connection, or just call in by telephone.
You have the ability to mute and unmute yourself when you’re in the “courtroom.” As a rule, you always want to be sure you’re on mute unless you’re speaking.
if you appear by video, our judges still expect you to look and act like you’re in a real courtroom. While we have the greatest clients on earth, across the country we hear stories of people showing up on video from their hot tubs or from bed in their pajamas.
At the moment, Wyoming is allowing jury trials to take place if and when the presiding judge believes it is safe and reasonable to do so. Given current trends, trials do not appear to be imminent in the Jackson area at least. Time will tell over the next few months how that goes.
The complications and changes brought by the pandemic seem endless and there are still plenty of days where it feels like we’re just making things up as we go along, still, nine months in. For the most part though, many of the changes are for the better. The challenge will be to find a way to hang onto the positive reforms in the system when life gets back to something approaching “normal.” In the meantime, we’re here to help you navigate these challenges and do our best to find the best path forward for your case.