Confrontation During COVID: A Fundamental Right, Virtually Guaranteed

The novel threats posed to our criminal justice system by the COVID-19 pandemic and attendant shutdowns of courts beg the question of whether our must fundamental pillars of law can withstand the ultimate test of time. And inherent in the ultimate test of time is the ultimate test of technology—this is, will there come a time that technology outgrows the confines of our legal landscape? Consider this: The United States Constitution guarantees every criminal defendant the right to confront their accuser in court; yet, for a substantial period of time in 2020, court, as we knew it, was nothing more than a live, two-way, video-telecommunications stream. Is confrontation via live, two-way video-telecommunication sufficient to comport with the fundamental rights guaranteed to criminal defendants under the Constitution?

Fortunately, the era of the Coronavirus Court has largely come to an end with courts re-opening and the mass-dissemination of vaccines and booster shots worldwide; however, the question remains whether we, as a society, are prepared to recognize that the legal landscape of the criminal justice system is changing. And moreover, whether the law, as it is understood and applied today, contemplates this idea that traditional notions of fair play and substantial justice are ever-developing in light of technological and societal advancements.