The Impact of Social Distancing Rules on Court Cases

divorce law

Our whole country has been impacted by the presence of COVID-19, and tasks that were once simple now feel much more complicated. 

The Courts are certainly finding this to be true, as they grapple with questions like: how can we uphold social distancing guidelines during trial? How can a judge make a ruling if half of the witness’ face is covered? How can we ask twelve people on a jury to sequester themselves in a small room for hours as they deliberate, when this clearly violates CDC social distancing guidelines? 

On a personal level, I understand the dilemma. Just a few weeks ago, I went to the grocery store wearing my mask. As I was stepping into the checkout line, a stranger made a comment that I could only partially hear. I wasn’t sure how to respond because I couldn’t decipher his intent. He was wearing a face mask, so I couldn’t tell.

Was he being sarcastic, or was he being serious? If he was being sarcastic, I would have chuckled because the comment was quippy and clever. If he was being serious, he was being a jerk, and I would have responded accordingly.

The fact is, since I couldn’t see his full face or clearly make out his inflection, I didn’t know how to take his comment. And this is exactly the issue judges and jurors are facing in the Courtroom. 

“I Need to See Their Faces”

At this point, the Courts are seeing some urgent cases, but  nothing is fully back to normal. “Normal”, of course, meaning the fully-packed schedules we had all grown accustomed to before the pandemic swept across the country and triggered shelter-in-place orders in most counties. 

A big challenge is that judges and juries want to be able to see the defendant and the witnesses’ faces when they give testimony or, for the defendant, see his demeanor as he/she watches the trial. A judge once told me, “In every protection order I’ve ever had, the parties have taken opposite positions. They recite the facts differently. I have to be able to observe their demeanors in order to determine who wins and who loses.” 

Having recently experienced for myself just how much a face mask can hide  facial movements and nuanced vocal intonation, I understand why this is important. At the same time, if people in the Courtroom aren’t going to wear masks, it could potentially pose a major hazard if the virus were present. There are some clear plastic masks for people that are hearing impaired. I wonder if this wouldn’t be a better option for witnesses.

Jurors are particularly sensitive to the risks of becoming ill, and resist the idea of sitting in a closed room for hours at a time with a group of people who may or may not be a carrier for the COVID-19 virus.

This is a major reason why the Courts have been slow to re-open and are holding as many cases and hearings as possible through virtual platforms like WebEx. In fact, the Supreme Court even held hearings by phone in May, and the public was invited to listen in. Catch a recap of those hearings here.

Cases that are Moving Forward 

If you’re seeking to get a protection order (“restraining order”), then your case is considered urgent and will be scheduled soon. As I mentioned earlier, judges tend to want to hold these kinds of hearings in person, or, at the least, by video so be prepared for the possibility of going to the Courthouse with your attorney. 

If we’re simply doing status conferences, you will likely be able to move forward telephonically or via video conference. Same with mediations (read more about virtual mediation here). However, up to this point I have not had a divorce trial held remotely. My guess is that trials will need to be held in person, but we are still waiting to see exactly how this will work. 

To a large extent, criminal cases are only being heard if there is some sort of emergency associated with the case, and most of them are being held telephonically. 

How to Proceed

This situation is evolving weekly as we get new information, more solutions arise and social distancing protocols are clarified and fine-tuned. Call our office at 303-449-1873 to set up a free consultation. We will give you guidance on the best way to move forward with your case. 

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