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Speedy trials challenged by pandemic

| August 11, 2020 1:00 AM

Once upon a time, mere accusation by someone with power could mean an indefinite stay in a dank and desolate place. Many an innocent without resources or connections literally rotted away in centuries gone by, never seeing the inside of a courtroom.

That’s why we have constitutional protections such as the Sixth Amendment, guaranteeing every accused in a criminal case the right to a “speedy trial.”

What is “speedy”? Defined by federal and state statutes whose time limits vary, and in part dependent upon the type of offense, “speedy” typically means one to six months in criminal cases (see Idaho Code 19-3501). Why even that long? It takes time to investigate cases and gather evidence.

The point at which that timeline begins, what can legally suspend it, and a case-by-case interpretation of “speedy” have evolved over time.

Did COVID-19 change that? In a way. Like its counterparts nationwide, the Idaho Supreme Court issued emergency orders in March, April, and July including a pause button for that clock, limiting what cases would go forward or under what restrictions.

It’s hard to have a public jury trial when the whole state was under a stay-home order, or now with contagion worries. How do you impanel a jury pool with social distancing in small courtrooms? Jury boxes aren’t built for that.

What about the fact that courtrooms are public? By the time the jury, court staff, lawyers and parties are 6 feet apart, there’s not much room left.

But people can’t wait forever to find out what’s happening to them, and for those incarcerated pending trial, already-overcrowded jails can become viral breeding grounds. Nor is it in the public interest to delay justice long.

If you’re one of those who recently received a juror questionnaire, you know the wheels of justice are picking up speed again. We have some catching up to do.

So how will court look now? Highlights of the July 24 Idaho Supreme Court order include:

Delays. No trial juror shall be required to appear in person before Sept. 14, 2020, and no criminal jury trial will begin until then. Civil trials resume Dec. 1.

Excused. People 65 and older are excused from jury service.

COVID-19 screening. Everyone entering local courthouses will be screened and checked for a temperature above 100.3.

Social distancing, masks. Everyone in the courtroom must remain 6 feet apart and wear a mask or be behind a barrier (unless the judge permits otherwise).

Remote testimony. Technology is coming in handy. While the judge, attorneys and jurors must still be physically present at trial, some witnesses may testify remotely by teleconference or videoconference.

Public access. Once trial begins, if the judge excludes the public from the courtroom for health and safety reasons, a viable alternative such as live streaming “must be provided.” Such video streams will not show the jurors or legally confidential communications.

Trying to balance health and safety concerns against an efficiently functioning justice system (without compromising constitutional rights) is undoubtedly a challenge for everyone involved — one that courts, attorneys, and litigants around the globe are struggling with simultaneously.

To read the full order, see Bit.ly/33Rg001. A more thorough examination of the Sixth Amendment’s right to speedy trial is offered by Cornell Law School at Bit.ly/3aehthY.

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Sholeh Patrick, J.D. is a columnist for the Hagadone News Network. Contact her at Sholeh@cdapress.com.