Due Process During The Coronavirus


If you have been charged with a crime since March 2020, there is a good chance you are still waiting for your case to be resolved. This could be a violation of your rights. Find out what those rights are, and how due process is being protected during the Coronavirus shutdowns.

What is Due Process

“Due process” is the legal term for every criminal defendant’s right to respond to the charges against them. It is a necessary part of the American justice system, where a defendant is innocent until proven guilty. Judges often define it as the right to “notice and an opportunity to be heard.” In other words, you have the right to know when your case is being considered by the judge, and show why you should not be found guilty.

There are due process issues in civil court and family court too, but in the criminal setting, the right to be heard takes on extra weight. Under the Sixth Amendment of the U.S. Constitution, anyone accused of a crime has a right to:

  • A speedy trial
  • A public trial
  • A decision by an impartial jury
  • An explanation of the nature and cause of the accusation
  • A chance to confront the witnesses against them
  • An opportunity to present witnesses of their own (through subpoena if necessary)
  • An attorney’s help in presenting their defense

Having an attorney help you is key to protecting and making the most of your other Sixth Amendment rights. The experienced criminal defense attorneys at Berman Law know how to balance our clients' needs for a quick resolution and a chance to confront witnesses face to face, and we know when to push for a speedy trial. That process often starts at the preliminary hearing.

What Happens at a Preliminary Hearing

A preliminary hearing is one of the first hearings in a criminal case. Under Pennsylvania’s court rules, it must occur within 21 days after bail is set or 14 days of arrest if the defendant is in jail. At the preliminary hearing, the prosecution must demonstrate that there is “probable cause” to believe (it is more likely than not) the particular crime has been committed and this defendant was the most likely person to have done it. Both the prosecutor and defense have the right to put forward witnesses. Most often this includes the victim and the police officers involved in the investigation. If the Magistrate District Judge (MDJ) or other presiding officer doesn’t believe there is probable cause to establish both the crime and the person who did it, the criminal case will be dismissed then and there.

However, “probable cause” is a very low bar. Most cases continue beyond the preliminary hearing process. Defendants are even allowed to waive the preliminary hearing and allow the case to go directly to the Common Pleas Court. Still, a preliminary hearing gives your criminal defense lawyer a first glimpse at the prosecutor’s case against you, an opportunity to find the holes in that case, and a chance to see how the victim and other important witnesses behave on the stand. This makes it a crucial step in most criminal cases, and essential to protecting the rights of wrongfully charged criminal defendants.

Preliminary Hearings Must Continue During COVID-19

That is why the delays caused by the COVID-19 pandemic response have been such a problem for criminal defendants, especially those being held in jail waiting for their day in court. In March 2020, the Supreme Court of Pennsylvania ordered the courts closed to prevent the spread of the virus. That meant thousands of criminal defendants’ preliminary hearings didn’t happen within the 21 day window.

By June 1, 2020, the Court had recognized the problem, and formally suspended the scheduling requirement. But this didn’t do away with defendants’ rights. By August 1, 2020, there were over 7,700 backdated hearings still waiting to be held. Of those, 1,400 criminal defendants were in jail for months after their arrest. Preliminary hearings were being set on average 137 days after arrest. That is more than four months in jail for defendants who have not yet been proven guilty.

Many of these hearings have been delayed and rescheduled repeatedly, until the courts could figure out how to safely conduct preliminary hearings. Today, some courts have scheduled virtual preliminary hearings, so that incarcerated defendants can safely have their cases heard. Other courts have incorporated social distance measures so that the defendants and witnesses are safe while in the courtroom. However, even with a restricted docket, court workers and attorneys are still potentially being exposed to the virus, which could slow things down even further. Many legal experts are concerned that continued delays in the criminal justice system could force defendants to accept pleas to crimes they did not commit just to get out of jail.

However, there are other options. Your criminal defense attorney can file a motion to reduce your bail or have you released pending trial. These motions can be heard virtually, so they don’t have the same delays as preliminary hearings. Your attorney may also be able to advocate for a more favorable plea agreement, using the backlog of cases as leverage to negotiate a better arrangement and get you out of jail sooner. Finally, your criminal lawyer can advocate to have your hearing scheduled promptly based on your Sixth Amendment right to a speedy trial. This will allow you and your lawyer to have your opportunity to be heard, confront the witnesses against you, and ultimately get your case resolved.

At Berman & Associates, our experienced Delaware County DUI defense attorneys know how hard the COVID-19 crisis has made life for people charged with crimes. We have been advocating on our clients’ behalf with the Pennsylvania courts throughout the pandemic. We know what works and the limits to how technology can protect your rights. If you are in Delaware County, Media, Pennsylvania, or the surrounding areas, we welcome you to contact us to speak with us about how we can help with your criminal case.

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