SJC Says Pandemic Virtual Hearings Are Constitutional

Remote court hearings may not be perfect, but they do not violate a defendant's rights, according to Massachusetts Supreme Judicial Court.

In a lengthy opinion Wednesday, the SJC said courts are within their rights to hold videoconference hearings during the pandemic. But the same opinion also says in some cases, judges can wait to hold in-person hearings.

"The Commonwealth's interest in protecting the public health during the COVID-19 pandemic is significant and, combined with its interest in the timely disposition of a case, would, in many instances, outweigh the defendant's interest in an in-person hearing," wrote Justice Elspeth Cypher. "Accordingly, we conclude that a virtual motion to suppress hearing is not a per se violation of the defendant's right to be present in the midst of the COVID-19 pandemic."

The case involves John W. Vazquez Diaz, who is incarcerated and waived his right to a speedy trial --  agreeing to remain in jail until he could have an in-person hearing. The SJC reviewed a lower court ruling that denied Vazquez Diaz's request to continue a hearing on a motion to suppress evidence until the hearing could be held in person.

In Wednesday's ruling, the SJC said the lower court judge could have postponed the hearing because Vazquez Diaz was willing to wait and because no witness testimony would be compromised. Cypher also wrote that the lower court judge did not consider the "exceptional circumstances" of the pandemic.

"Although we find no constitutional violation, we conclude that the judge abused her discretion in this particular instance in denying the defendant's motion to continue his hearing where he waived his right to a speedy trial," the SJC opinion says. "Weighing the factors relevant to deciding a motion to continue is well within the purview of a judge. The COVID-19 pandemic, however, has given rise to exceptional circumstances. We caution that our decision today is a reflection of these exceptional circumstances and does not apply outside the confines of the COVID-19 pandemic."

Attorneys for Vazquez Diaz argued that the online hearing would violate several of his rights, including to be present in a courtroom and to confront witnesses.

Cypher's opinion said if the technology is adequate, those rights are preserved.

"Although Zoom does not allow for physical, face-to-face confrontation, the technology creates a close approximation of the court room setting that can
sufficiently safeguard the defendant's right to confrontation," Cypher wrote.

The opinion provides guidance to judges and acknowledges that the pandemic has veered the trial court into new territory, where there are few legal precedents for substituting technology such as online Zoom hearings for in-court appearances.

"The possibility of a virtual hearing was, of course, not contemplated by the framers of our Constitution in 1780," the opinion said. "In fact, much of our most recent case law addressing the defendant's right to confrontation at an evidentiary hearing predates the advent of technologically advanced video conferencing platforms, including Zoom, which was established in 2011."

Associate Supreme Judicial Court Justice Scott Kafker took the unusual step of writing a concurring opinion to Cypher's and advised caution.

"My main reason for writing separately is to emphasize that, as virtual hearings become a fixture of the judicial process, judges must be keenly attentive not only to
the proper functioning of the technology, but also to the ways the virtual setting subtly influences all participants — including themselves," Kafker wrote.

He added that how technology affects court proceedings is not yet clear.

"So far, we have only limited data, based on older technology, and that data has not been challenged in court, but the data we do have suggests that judges need to be
attentive to these effects and that courts should proceed cautiously," Kafker's opinion said.

Both Kafker and Cypher said the judiciary should take lessons from the pandemic for future emergencies.

"It is crucial that we learn from the COVID-19 pandemic and continue to perfect the procedures we have implemented to safeguard our judicial system in the event of
another pandemic or natural disaster," Cypher wrote.