More. . .

Clinic Menu

COVID Limits on Federal Courts and Public Access to Public Trial

Under the supervision of Professor Judith Miller, the COVID Courts team advocated for public access to criminal courts during emergencies like the COVID-19 pandemic. The COVID Courts team first attempted to address this issue by way of litigation and then argued that a proposed Federal Rule should be revised to better account for the constitutional issues. The team also developed training materials that directly addressed a number of COVID-related issues arising nationwide.

In 2021–22, the COVID Courts team filed a case arguing that COVID-era courts violated a journalist’s constitutional rights by denying the public video access to video hearings and instead limiting the public to audio-only feeds. This practice left the press and public listening outside the virtual courthouse door, in violation of the First and Sixth Amendments.

The FCJC’s intervention appears to have been the first case of its kind. It relied on an innovative procedural mechanism—a petition rather than a lawsuit—to challenge a federal district’s local rule governing the issue. The case ultimately became moot when the district at issue changed its practices. In a later case, the Ninth Circuit agreed with the legal arguments the FCJC was the first to make. The FCJC thanks Nina Ginsberg for her generosity in serving as local counsel in the case.

The 2021–22 COVID Courts team expanded on the litigation by filing an official Comment with the Federal Rules Committee. The Comment suggested revisions to the proposed new Federal Rule of Criminal Procedure 62, which would govern court access during emergencies such as the pandemic. The COVID Courts team was concerned that the proposed Rule did not protect the bedrock principle of public access to the criminal legal system and did not adequately account for lessons learned from the pandemic. On an individual level, it is critically important for friends and families to be able to attend court. At a systemic level, meaningful change in the criminal system is possible only when the public can see what happens. Ultimately, he team successfully persuaded the Committee to revise the proposed Federal Rule.

To provide the best feedback to the Committee on its proposed Rule, the team undertook an exhaustive study of the effects of COVID-19 on public access to public criminal proceedings in federal court. The team reviewed and documented all 94 districts’ orders relating to public access to public proceedings; surveyed newspaper articles, scholarly literature, and publications; researched the experiences of court watchers both before and during the pandemic to understand how emergency restrictions affected their ability to observe court and hold officials accountable; and interviewed leaders of prominent court watching organizations, criminal defense attorneys, reporters and editors, and family members of justice impacted individuals.

The team subsequently filed a Comment that proposed revising the Rule to provide more meaningful guidance for future emergencies, and to make clear that normal First and Sixth Amendment standards must govern during emergencies, though their applications may vary. For example, the public should have video access to video hearings; limiting the public to listening via audio-only feeds must be justified under well-established constitutional standards. Ultimately, the team proposed re-centering the First and Sixth Amendment public access and public trial rights to ensure the open access that has been a hallmark of our criminal system since the Founding.

After detailed discussion of the team’s suggested changes, the Committee revised the proposed Rule consistent with the core of the FCJC’s Comment. The revised Rule now expressly invokes the First and Sixth Amendment as the floor for court access during emergencies. The revised Rule also no longer implies that victims’ statutory access rights are greater than friends’ and family’s access guarantee under the Sixth Amendment. This latter change was especially remarkable as the Committee sided with the FCJC over the Department of Justice’s direct opposition on the same point.

Relevant Materials