The Volokh Conspiracy
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Massachusetts High Court on Zoom Evidentiary Hearings in Criminal Cases
From today's opinion in Vazquez Diaz v. Commonwealth, written by Chief Justice Kimberly Budd:
This case concerns whether the use of an Internet-based video conferencing platform, Zoom .., for an evidentiary hearing during the COVID-19 pandemic violates certain of the defendant's constitutional rights. The defendant, John W. Vazquez Diaz, has waived his right to a speedy trial and seeks to continue his suppression hearing until it may be held in person. We conclude that a virtual hearing is not a per se violation of the defendant's constitutional rights in the midst of the COVID-19 pandemic.
Nonetheless, where the defendant has waived his right to a speedy trial and there are no civilian victims or witnesses, we conclude that the judge, who had to make a decision in unchartered territory, abused her discretion in denying the defendant's motion to continue his suppression hearing until it may be held in person. Accordingly, we reverse the judge's order denying the defendant's motion to continue….
The court held that Zoom hearings don't categorically violate the defendant's right to be present (recognized under the Massachusetts Constitution), right to confront witnesses, right to a public trial, or right to effective assistance of counsel; but it concluded:
Here, where there are no civilian witnesses or victims, the harm to the government's case caused by any further delay is minimal. The evidence and the testimony of police officers can be preserved adequately. The Commonwealth has presented no evidence that the officers or the evidence that is in their custody will be unavailable if the hearing is continued.
While reducing the backlog of cases is a legitimate interest, there are many other cases that may be ripe for a virtual hearing at this time. The defendant must be aware, however, that when in-person proceedings resume, there will be a significant backlog and he may not be able to obtain a hearing as soon as he might wish.
We emphasize, however, that a defendant does not have an absolute right to continue his or her Zoom hearing until it may be held in person, even where a defendant waives his or her right to a speedy trial. While a defendant's decision to waive his or her speedy trial right to wait for an in-person hearing does minimize the public health risk presented by the COVID-19 pandemic, delaying the defendant's motion to suppress for what may be an indefinite period of time does not come without a cost. In other circumstances, it may well be within the judge's discretion to deny a defendant's motion to continue.
Justice Scott Kafker concurred, in an opinion that began thus:
I agree with the court's conclusion that the judge's denial of the defendant's motion to continue constituted an abuse of discretion, but I write separately to emphasize that as we zoom into the future of this brave new digital world, judges must be acutely attentive to the subtle and not so subtle distorting effects on perception and other potential problems presented by virtual evidentiary hearings. Although the scholarship of these effects and problems is still developing and requires rigorous testing in court, it raises concerns that require a cautious approach, particularly after the pandemic ends and our court rooms can return to some semblance of normal….
Most notably, it is impossible to make true eye contact via the video conferencing technology available in this case, because the camera and display are not in the same place. Lack of eye contact creates a risk that viewers will perceive the speaker as uncertain or dishonest, and results in an over-all reduction in the ability to use emotional intelligence to assess the communication.
Because they are unable to maintain eye contact, virtual participants using Zoom or like technology "may lose access to the sorts of feedback they would ordinarily receive in the physical courtroom. This ongoing sense of uncertainty about whether they are truly being paid attention to and understood may be reflected in witnesses' demeanor while testifying, which decision-makers may then construe as a lack of confidence or lack of interactivity …." …
Both opinions are much more detailed than the short excerpts I've given, and much worth reading.