On March 30, the United States District Courts for the Eastern District of Louisiana and the Middle District of Louisiana issued orders to clarify the proper use of video and telephone conferencing for certain criminal matters under the CARES Act’s authorizations for these conferences during the COVID-19 emergency. All video and telephone conference hearings or events require the consent of the defendant or the juvenile after consultation with counsel.

The courts set one standard to determine whether a video or telephone conference may be appropriate for pretrial, probation, and juvenile proceedings; and another, more onerous standard for felony pleas and sentencings.

Most proceedings covered under the orders only require the defendant’s consent to use video or telephone conference. In terms of pretrial proceedings, the events include detention hearings, initial appearances, preliminary hearings, waivers of indictment, arraignments, and pretrial release revocation proceedings. Events also include probation and supervised release revocation proceedings, appearances after failing to appear in another district or violating release conditions from another district, and misdemeanor pleas and sentencings. Finally, all proceedings under the Federal Juvenile Delinquency Act (18 U.S.C. § 5031 et seq.), except for contested transfer hearings and trial proceedings, are included in this category.

Felony pleas or sentencings require an additional finding that the particular plea or sentencing “cannot be further delayed without serious harm to the interests of justice.” The orders do not specifically define what factors a court may consider in weighing the interests of justice, but courts similarly consider the interest of justice in motions for new trial and motions to transfer.

The orders also permit public access to any of the above hearings or proceedings if the presiding judge grants a request for access, but this access does not include permission to record or broadcast the hearing. The only transcripts that courts will consider official are those created by the reporter designated to produce the record under 28 U.S.C. § 753(b). Those transcripts will be deemed prima facie a correct version of the proceedings.

The orders can be found at the following links:

General Order No. 20-4 for the Eastern District of Louisiana

Administrative Order No. 2020-4 for the Middle District of Louisiana

Jones Walker is working with clients in a wide range of capacities to help them move from reacting to COVID-19 to getting out ahead of it. If you have questions about how our attorneys can help support your company, please feel free to contact the Jones Walker attorney with whom you usually work or any member of the firm’s corporate compliance and white collar criminal defense practice.

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