In the era of COVID-19, almost everything is being held virtually. This includes motion hearings, which have been held virtually for over a year now. However, there is a great deal of value in in-person hearings, particularly when evidence will be presented. At an in-person hearing, the fact finder can see the reactions witnesses have to cross examination in a way that is not possible in virtual hearings. The fact finder can make eye contact with a witness, and observe their body and response to questioning which can help the finder of fact determine whether they believe the witness’ testimony. This is extremely important, particularly in criminal cases where the veracity of Commonwealth’s witnesses is often a central issue. Moreover, in contrast to the direct experience of participating in a court room proceeding, virtual hearings have been found to diminish the sensory impressions necessary to structure our perceptions; "[w]ithout those sensory impressions . . . a dehumanizing effect occurs." As a result, many defendants have waived their right to speedy trial to postpone any evidentiary hearings until in-person hearings are being held again.
On May 5, 2021, the Supreme Judicial came down with a decision in Vazquez Diaz v. Commonwealth addressing the constitutionality of Zoom motion hearings. In Vasquez Diaz, the defendant had filed a motion to suppress on November 15, 2019, which was eventually scheduled for a virtual hearing. However, the defendant had made a request for this motion to be heard in-person based upon the critical nature of in-person witness testimony. The defendant, who was held awaiting trial, waived his right to a speedy trial and filed a motion to continue until the motion could be heard in-person. This motion was denied by the trial judge, and the Defendant appealed this decision, arguing that forcing the hearing to be held over Zoom would violate his right to be present, his right to confront the witnesses against him, his right to a public trial, and the right to be effectively assisted by counsel.
Right to Be Present at Trial
Under Massachusetts Rules of Criminal Procedure 18(a), the “defendant has the right to be present at all critical stages of court proceedings.” This includes pretrial evidentiary hearings. This rule is meant to protect a variety of rights under the Sixth Amendment of the United States Constitution. The Court held that in some situations, “a motion to suppress hearing may be conducted without violating the defendant’s right to be present, so long as the video conferencing technology provides adequate safeguards [for the defendant’s rights].” After reviewing the features of Zoom and weighing the interest of the Commonwealth in having a fast trial against the defendants interest in having in-person proceedings, the Court held that in this case, a pretrial Zoom hearing would not violate the defendant’s constitutional rights that are protected by rule 18(a) because the features of Zoom provide adequate protections that approximate a courtroom experience.
Despite holding that there was no per se constitutional violation in having an evidentiary hearing where no witnesses would be called over Zoom, the Court held that the trial judge abused his discretion by refusing to allow a continuance until an in-person hearing could be held after the defendant waived his right to a speedy trial. Weighing against these interests is the government’s interest in speedily disposing of cases to ensure that they have access to all necessary witnesses. “[A] defendant’s decision to waive his or her right to a speedy trial does minimize the public health risk presented by the COVID-19 pandemic...” Given these benefits to the defendant and the public, the defendant’s interest in waiving his right to a speedy trial, in this case, outweighed the government’s interest in access to witnesses. As the defendant is generally entitled to waive their constitutional right to a speedy trial, the trial judge abused his discretion by denying the continuance in this case. The Court noted that, in some cases, the government’s interest in having a fast trial may outweigh the defendant’s interest in having an in-person hearing. Such a situation may arise when the Commonwealth is relying on “civilian victims or witnesses” who may become more difficult to bring into court as time goes on.
Right to Confrontation
Next, the Court addressed the novel question of “whether the right to confrontation applies at a suppression hearing.” Due to the fact that “[s]upression hearings typically involve important issues that require the taking of evidence and often lead to the resolution of the case” and that “excluding the defendant” from a suppression would likely “interfere with his opportunity for effective cross examination,” the Court held that the right to be present includes the right to be present at suppression hearings.
After deciding that the defendant’s right to confrontation extends to suppression hearings, the Court held “that a virtual evidentiary hearing on a motion to suppress is not a per se violation of the defendant’s right to confrontation..." because under “narrow circumstances,” a defendant’s “Sixth Amendment or art. 12 rights must yield to unique interests.” In the context of virtual evidentiary hearings in the era of COVID-19, the interest in avoiding in-person hearings to safeguard the public health, combined with the government's interest in ensuring that “civilian witnesses” will be available for the hearing, could mandate that an evidentiary hearing is held virtually. Because in the case at hand there were no civilian witnesses and the public safety can be safeguarded by continuing the case until in-person hearings were being held again, the Court held that the trial judge abused his discretion by denying the defendant’s motion to waive his rights to speedy trial and continue.
Right to Public Trial
The Court next addressed the defendant’s argument that a virtual hearing would violate his right to a public trial. Under the Sixth Amendment of the United States Constitution, the defendant has a right to be tried publicly to ensure fairness, veracity of witnesses, and that proper procedures are followed by the government and the court. Despite the important interests protected by this right, it is not absolute and in the proper circumstances “[a] court may impose conditions on entry to a proceeding without violating the defendant’s right to an open court.” In reviewing the facts in this case, the Court held that converting hearings from in-person to Zoom did not constitute a constitutional closure because “there is no limitation on who or how many individuals may virtually or telephonically attend the hearing.”
However, even when a closure does not have constitutional implications, it is still subject to review by appeals courts. For a non-constitutional closure to be upheld on appeal, it must constitute a de minimis closure. A de minimis closure exists when the trial judge finds, on the record, that 1) A substantial interest of the party seeking the closure is likely to be prejudiced absent the closure; 2) The closure is not broader than necessary to protect the substantial interest of the party seeking closure; and 3) There are no reasonable alternatives to closure. The SJC held that in this case, the trial judge had not abused his discretion in ordering that hearings be held virtually because he made findings on the record about the health impact of COVID-19 and the need to have virtual hearings to protect the public.
Effective Assistance of Counsel
Under Article Twelve of the Massachusetts Constitution and the Sixth Amendment of the United States Constitution, defendants are entitled to effective counsel at every stage of the criminal proceeding against them. The defendant argued that his right to effective assistance of counsel would be impaired by a virtual hearing because he would not be able to communicate with his attorney in real time as proceedings progressed. The defendant argued that without being able to communicate with his attorney while arguments were being made would impair the lawyer's ability to make strategic decisions as they would not have access to the defendant's commentary.
The Court rejected this argument. While realizing that there is a great deal of value for both the attorney and their client in being able to communicate as proceedings are ongoing, the court found that there were sufficient substitutes in this case to protect the defendant’s right to effective counsel. First, the court noted that the attorney and their client could talk in an unrecorded breakout room where they could privately make strategic decisions. Next, the Court noted that while the defendant could not get his attorney’s attention during proceedings with physical or verbal cues, he could interrupt the proceeding at any time and speak with his attorney in a break out room. The Court found that this was an adequate substitute for the normal whispering and note passing that goes on between an attorney and their client during a proceeding. Finally, the Court found that the skill of lawyers in making on-the-spot decisions regarding strategy is often much greater than that of their clients. As such, the need for consultation with a client on strategic matters varies on a case-by-case basis. For these reasons, virtual hearings over Zoom are not per se violations of the defendant’s right to effective assistance of counsel.
Deciding whether to waive your right to a speedy trial and wait for in-person hearings to resume is a significant decision fraught with personal and strategic considerations. These considerations can have a profound impact on both the course your case takes and your personal life. When deciding whether to waive this extremely important right it is important to first consult with a knowledgeable attorney. At the Law Offices of Joseph D. Bernard, we are skilled at balancing the strategic and personal needs of our clients and will be able to help you make this important decision in a way that best suits your needs. Contact our office for a free consultation.