Right to a Public Trial During COVID-19

Recognized as being essential by our founding fathers and ratified in the United States Constitution, the Sixth Amendment provides defendants in criminal cases with the right to a public trial. The public policy reasons supporting this right are countless and can include transparency, equality, and culpability.

In the wake of the current health threat posed by the coronavirus, this constitutional right is in a sense put on “pause.” If you or someone you know is currently awaiting a judicial proceeding concerning a criminal case, you may be wondering when, and if, a public trial is going to take place. Our knowledgeable criminal attorneys at Arnold & Smith, PLLC can help you answer these questions about your case. The “if” question is not a concern, a criminal defendant is entitled to a public trial and this right cannot be stripped from him or her. A defendant may however waive this right if they choose to do so, but it is entirely within the defendant’s discretion whether to exercise their right to a public trial. The “when” question is sticky, but currently we have an answer as to when the “pause” button will be lifted and “play” will be resumed.

Chief Justice Beasley’s latest judicial order has requested that most cases be postponed until June 1, 2020. Pursuant to this order, under Emergency Directive 1, defendants in criminal cases who wish to exercise their right to a public trial must wait until this order is either lifted or reaches its expiration date to commence trial proceedings. That is, unless:

• The proceeding is necessary to preserve the right to due process of law; or
• The senior resident superior court judge, chief business court judge, or chief district court judge determines that the proceeding can be conducted under conditions that protect the health and safety of all participants.

Emergency Directive 1 of Chief Justice Beasley’s order notes that the above exceptions are not exhaustive. In addition, any proceeding in which a jury has already been empaneled is not subject to the requirements outlined in Emergency Directive 1. Note, that this is the third postponement issued amid the COVID-19 pandemic, so there is no absolute guarantee that all criminal proceedings will resume by June 1^st. As a result, it is important to remain aware of the procedural and subsequent substantive changes being made via judicial order, executive action, and/or state legislation, regarding the operation of court functions. One way to ensure you are kept informed is to hire competent representation, like our attorneys at Arnold & Smith, PLLC.

In the case that a criminal defendant waives their right to a public trial, he or she may have their proceeding take place remotely via audio and video transmissions. Under Emergency Directive 3 of Chief Justice Beasley’s order, judicial officials throughout North Carolina are authorized to conduct proceedings that include remote audio and video transmissions, notwithstanding any other provision of law. Judicial officials who wish to conduct a proceeding in such a manner must safeguard the constitutional rights of those persons involved in the proceeding and preserve the integrity of the judicial process. In addition, the Directive in pertinent part states:

• If a criminal defendant’s right to confront witnesses or to be present is implicated by the proceeding that is to be conducted, then the defendant must waive any right to in-person confrontation or presence before remote audio and video transmissions may be used.
• If the proceeding is required by law to be conducted in a way that maintains confidentiality, then confidentiality must be maintained notwithstanding the use of remote audio and video transmissions.
• If the proceeding is required by law to be recorded, then any remote audio and video transmissions that are used must be recorded.
• Each party to a proceeding that includes remote audio and video transmissions must be able to communicate fully and confidentially with his or her attorney if the party is represented by an attorney

The authorization in this emergency directive does not extend to proceedings that involve a jury. Nor, does it prevent judicial officials from conducting in-person proceedings consistent with Emergency Directive 1. Thus, a criminal defendant who has waived his or her right to a public trial may also have their proceeding conducted in a “closed court” manner. This means that the judge limits the spectators to courtroom personnel. However, some criminal defendants regardless of their waiver, may be forced to schedule or reschedule their proceeding for a date sometime after June 1, 2020 as outlined in Emergency Directive 1.

If your case involves the postponement or alteration of a criminal proceeding amid the COVID-19 health pandemic, contact our Charlotte criminal defense lawyers at Arnold & Smith, PLLC, to receive a case review. Call our lawyers at Arnold & Smith, PLLC, at (704) 370-2828 to evaluate your options or fill out our contact form online. Now taking cases throughout North Carolina with offices in Uptown Charlotte, Mooresville and Monroe.