Criminal courts throughout the United States have relied upon Zoom and other videoconferencing technologies to help maintain a functioning criminal justice system amid the COVID-19 pandemic. However, such technology, in place of in-person trials, potentially violates several constitutional rights afforded to the accused, and might force them to choose to exercise one right guaranteed to them by the Sixth Amendment at the expense of another. Specifically, the accused might now confront two critical constitutional choices: (1) the right to a speedy trial versus the right to a jury trial that might require awaiting the end of sheltering-in-place; and (2) the right to a speedy trial versus the right to confront their accuser(s) if an immediate trial is virtual. The following brief survey considers the implications of Sixth Amendment rights that the pandemic risks placing in collision as criminal trials take to cyberspace.

Most criminal courts have correctly suspended all in-person courtroom proceedings to comply with state-issued stay-at-home orders or other social distancing standards. Yet, as courts resume proceedings under social distancing standards, they leave in-custody defendants wanting a trial with a peculiar choice: exercise the Sixth Amendment right to a speedy trial now or to a jury trial later. A speedy trial now might foreclose the jury right. If the accused opts to wait for a jury trial, such trial by Zoom will entail a judge, at least two attorneys, a bailiff, a court reporter, himself, and a panel of potential jurors all logged into the court’s Zoom account to select a jury. The impediments to exercising the jury right with such technology are staggering.

Can the accused and his attorney select a fair and impartial jury by videoconference? If so, can such jury then legitimately weigh the credibility of witnesses through a screen? What if a technological glitch causes a juror to miss key testimony, or worse, not be aware of what he missed? Can a jury deliberate remotely when part of any deliberative process necessarily implicates personal interaction, including assessing facial expression and body language across multiple individuals in real time? Even the most developed technologies today do not allow for reading a room.

If the accused and his attorney decide that no Zoom jury trial can be fair, is a bench trial any better? What if the judge is known to be harsh against defendants charged with the particular offenses? Stakes are high even in misdemeanor cases when one assesses the risk of collateral consequences, including the risk of a future parole or probation violation triggering a much harsher sentence.

The accused may then opt to waive his right to a speedy trial, and if in custody for a misdemeanor, will likely spend more time in jail than if he had pled guilty and been sentenced to the maximum term of confinement. Even worse, he will be serving his sentence in a location where the COVID-19 infection rate far exceeds the national average. So does he plead guilty just to get out of jail, or wait for a trial and perhaps risk an effective death sentence for an alleged misdemeanor? No one should have to confront such grim choices.

Assuming the accused determines that he may receive a fair Zoom trial, he must then weigh his right to a speedy trial versus his right to confront his accusers. In Maryland v. Craig, the Supreme Court carved out a limited exception to the face-to-face requirement of the Confrontation Clause, holding that a “defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Stay-at-home orders and other social distancing guidelines almost certainly fulfill the “important public policy” prong of Craig. But how can the “reliability” prong be fulfilled where there is no way to be in the same room as an accuser to confirm that his testimony is genuine or being fed to him off-screen? Does the potential for contempt charges adequately protect the defendant’s rights given these concerns? Ultimately, any virtual confrontation will compromise an accused’s Sixth Amendment confrontation right. The choice is stark: relax the confrontation right and proceed to trial or await a delayed trial, possibly at risk of exposure to a potentially lethal virus.

The juxtaposition of rights in tension is an inevitable feature of justice during COVID-19. How the system of criminal justice responds remains to be seen. Ultimately, COVID-19 is likely to force a relaxation of at least some Sixth Amendment rights and could perhaps force other constitutional or statutory rights into virtual collision. While a trial by Zoom may seem inevitable, that does not mean it is wise, sound, or constitutional.

Brandon Marc Draper is a former prosecutor and a current Assistant County Attorney in Harris County, Texas. Mr. Draper is also an Adjunct Professor at the University of Houston Law Center, where he teaches Advanced Trial Advocacy.