The Emerging Constitutional Law of Remote Criminal Justice

Abstract

The COVID-19 pandemic compelled courts to experiment with a novel mode of criminal process: conducting proceedings via video. The remote format helped protect public health during the pandemic, and its convenience has led many states to continue using it in certain circumstances. Yet questions about its desirability and constitutionality have lingered, and many are concerned that it undermines the justice and integrity of criminal proceedings. As the future of remote criminal justice is up for debate, it is important to assess to what degree it complies with fundamental constitutional principles. To that end, this Article offers a comprehensive analysis of cases addressing due process, confrontation, and right to counsel challenges to remote criminal proceedings. It analyzes courts’ reasons for granting or denying such challenges in decisions rendered by state and federal courts in 2020–23. The Article evaluates the decisions in light of relevant empirical research and then offers a framework to guide the emerging doctrine. It identifies several areas in which constitutional doctrine needs to be elaborated to provide greater transparency, predictability, and fairness. A coherent framework, informed by both research and precedent, can help ensure that the use of novel technologies to conduct criminal proceedings remains consistent with constitutional values.

Keywords: Remote criminal justice, Virtual trials, Constitutional law, Due process, Confrontation, Right to counsel, COVID-19 pandemic, State courts, Federal courts, Criminal proceedings

JEL Classification: K14