The COVID-19 pandemic had a profound impact on the country and its ability to function. However, the effect of the pandemic was felt the hardest in New York City. As the number of new cases continues to decline, government functions are starting to resume. Of course, this includes New York criminal trials, which truly represent the backbone of our criminal justice system.
New York courts will need to deal with many challenges as they begin to hear more cases. The old way of doing things may no longer make sense, with jurors, defendants and supporters all crammed into crowded courthouses. Thus, judges, lawmakers, and court administration will need to come up with solutions to address these issues which are consistent with the constitutional mandate for a speedy and public jury trial. It is critical that whatever new procedures are used, these procedures respect the constitutional rights of defendants.
One issue courts are wrestling with is how to handle live witness testimony. Many witnesses are already reluctant to take the stand and testify at trial. However, with the threat of COVID-19, even fewer witnesses will likely be willing to come to court. Recently, a state appellate court issued a written opinion in a rape case in which an expert witness was permitted to testify over two-way video. The case contains an interesting and important discussion of a defendant’s right to confront the witnesses against him.