Let’s Do It At Night; Expanding The Operating Hours Of Trial Courts

Dan Hunderfund is a 2L at American University Washington College of Law and is dedicated to public defense and defending the rights of the indigent.

There is no law that prohibits state courts from holding criminal trials on nights or weekends, times when many defendants would find it less burdensome to answer a summons. In the interest of reducing collateral consequences for defendants, trials for petty misdemeanors could be scheduled in evenings and weekends. Many courts already operate outside of standard business hours, responding to warrants and holding arraignment and bail hearings overnight and on weekends.[1] Unfortunately for a defendant in a criminal case, courts do not schedule trials for evenings or weekends.[2]

Minor charges in state courts often carry collateral consequences that disproportionately penalize the indigent.[3] Among other penalties not affirmatively intended by the court, an individual summoned on a misdemeanor charge may be fired by their employer when they miss work to appear in court.[4] As a consequence of a court summons for a misdemeanor, losing employment may be a greater cost to a defendant more than the most severe sentence considered by a court for the charge cited. In some states, a defendant will face the possibility of losing employment despite what should be considered the “desirable” disposition of not-guilty.[5] In other instances, prosecutors who are not ready for trial may move for a continuance on the day of trial, which can mean that a defendant is required to appear in court multiple times before their case is adjudicated, potentially straining relationships with employers.[6] Although some trials involve complex issues and numerous witnesses which may ultimately take several days of the court’s time, many misdemeanor trials can be concluded in under an hour.[7]

The burdens placed on misdemeanor defendants could be alleviated if state courts were open to trials on evenings and weekends.[8] Although initial trial dates are typically set based on the court’s availability rather than that of the defendant, trial judges consider scheduling conflicts of parties when granting continuances.[9] The ability of the court to fully consider the availability of defendants is seriously limited by state courts’ unwillingness to schedule trials on nights and weekends.[10]

Why don’t state courts hold trials on nights and weekends? Each state is free to design its own court system and consequently there is variation between states.[11] Nonetheless, some state courthouse procedures recur so consistently across states that one could be forgiven for believing that they are mandated nationally. One such procedure is that of state courthouse hours of operation. Many state courthouses observe standard business hours, operating between roughly 9AM-5PM. Court hours are often set unilaterally by order of the county’s chief justice, a position elected by the State Supreme Court.[12]

The power to set court rules including dictating the hours-of-operation is held by the judiciary rather than the state legislature, which may explain any discrepancy between the desires of the electorate and court hours.[13] One possible path towards expanded court hours is available through the unilateral action of state judiciaries. Many Chief Justices set court hours of operation directly by order.[14] If voices reach the ears of the states’ Chief Justices who are susceptible to persuasion, perhaps one will consider the burdens placed on defendants and expand court hours of operation to nights and weekends.

Alternatively, state legislatures may attempt to alter state court rules and procedures through legislation. Although court rules are generally considered to be outside of the ambit of legislative authority, some state legislatures have found success in altering courts’ rules and procedure.[15]

Finally, rather than attempting to alter court rules of procedure, state legislatures may effectively mitigate collateral consequences and pressure courts to expand hours by altering speedy-trial statutes. State legislatures can begin this process by amending speedy-trial statutes to proscribe multiple state-requested continuances for misdemeanors, or by requiring the rescheduled trial dates be chosen within the availability of the defendant if they can provide a window of availability required by statute.[16]

[1] Alex Calabrese, Problem Solving Courts: From Adversarial Litigation to Innovative Jurisprudence: Eleventh Annual Symposium on Contemporary Urban Challenges: Thursday, February 28, 2002: Afternoon Session: The Changing Face of Justice: The Impact of Problem Solving on the Lawyer’s Role and Ethics. 29 Fordham Urb. L.J. 1892, 1911 (2002) (articulating the “lobster shift” in New York City courts consists of overnight arraignments begins at 1AM); Hours & Locations by Court, https://courts.delaware.gov/Locations/court.aspx (last visited 01/15/2023) (designating some court locations as open 24/7); Night or weekend court assements; Court Facilities Trust Fund, Cal. Veh. Code § 42006 (Deering 2022) (addressing court procedure applicable to night or weekend traffic court sessions).

[2] Alex Calabrese, Problem Solving Courts: From Adversarial Litigation to Innovative Jurisprudence: Eleventh Annual Symposium on Contemporary Urban Challenges: Thursday, February 28, 2002: Afternoon Session: The Changing Face of Justice: The Impact of Problem Solving on the Lawyer’s Role and Ethics. 29 Fordham Urb. L.J. 1892, 1911 (2002) (articulating the “lobster shift” in New York City courts consists of overnight arraignments begins at 1AM); Hours & Locations by Court, https://courts.delaware.gov/Locations/court.aspx (last visited 01/15/2023) (designating some court locations as open 24/7).

[3] Paul T. Crane, Incorporating Collateral Consequences Into Criminal Procedure, 54 Wake Forest L. Rev. 1 (2019).

[4] Carter v. King Wrecking Co., 2009 Ohio App. 6802, 6809 (1st D. Ohio Ct. App. 2009) (holding that the public policy protection against termination of employment for missing work due to a subpoena did not extend to a court summons, and that a summoned defendant could be terminated for missing work by appearing in court).

[5] Id.

[6] William Glaberson, Justice Denied: In Misdemeanor Cases, Long Waits for Elusive Trials, N.Y. Times (April 30, 2013), https://www.nytimes.com/2013/05/01/nyregion/justice-denied-for-misdemeanor-cases-trials-are-elusive.html. (noting that a defendant facing misdemeanor charges made seven appearances in court before charges were dismissed, resulting in the loss of defendant’s job).

[7] Gordon Van Kessel, Adversary Excesses in the American Criminal Trial, 67 Notre Dame L. Rev. 403, 470 (1992) (noting that nonjury trials could average as little as 1 hour in duration with significant variation across states).

[8] James W. Meeker, Access to the Civil Courts for Those of Low and Moderate Means, 66 S. Cal. L. Rev. 2217 (1993) (predicting one possible future where access to justice is most improved once the courts hear cases on nights and weekends).

[9] Colo. Rev. Stat. § 18-1-405 (2021).

[10] See Brian Hillard, Why not do it in the evening?, 139 New L.J. 846 (June 16, 1989); Gwyn Morgan, Twenty-four hour justice?, 151 New L.J. 1340 (Sept. 21, 2001); Out of court time, 141 New L.J. 845 (June 21, 1991).

[11] See In the Court of Appeals of Maryland Administrative order on Hours of Operation (2016) (setting hours of operation of Maryland courts between the hours of 8AM-4:30PM); John B. Oakley & Vikram D. Omar, American Civil Procedure: A Guide to Civil Adjudication in US Courts 41 (Kluwer L. Int’l, 2009).

[12] See Wis. Sup. Ct. R. 70.19(3)(c) (2011) (providing the chief judge with the authority to set court hours of operation when necessary); Rule Making Power, Md. Code Ann. Cts. & Jud. Proc. § 1-201. (granting the Supreme Court of Maryland the power to make rules and regulations to govern the procedure and administration of courts).

[13] See Colo. Const. art. Vi, § 21. (granting general power to the state supreme court for rule-making “governing the administration of all courts . . . and governing practice and procedure in civil and criminal cases . . . .”.

[14] Wis. Sup. Ct. R. 70.19(3)(c) (2011).

[15] Patrick Berry et al., Legislative Assaults on State Courts – May 2021 Update, Brennan Ctr. for Just., https://www.brennancenter.org/our-work/research-reports/legislative-assaults-state-courts-may-2021-update (last visited 01/15/2023) (demonstrating that although some state legislatures may find they are able to alter court rules, this strategy is heavily burdened with implications regarding the independence of the judiciary).

[16] See Colo. Rev. Stat. § 18-1-405 (2021) (demonstrating the ability of the legislature to provide limiting conditions on state-requested continuances).