Confronting an Accuser via Zoom: The SJC Considers the Constitutionality of Virtual Evidentiary Hearings

Brett D. Lovins_resized

by Brett D. Lovins 

Case Focus

In Vazquez Diaz v. Commonwealth, 487 Mass. 336 (2021), the Supreme Judicial Court confronted the novel question of whether, during the COVID-19 pandemic, a virtual evidentiary suppression hearing violates a defendant’s constitutional rights. The Court concluded that such a virtual hearing during the pandemic is not a per se violation of a defendant’s right to be present, to confrontation, to a public hearing, or to effective assistance of counsel, and instead determined that videoconferencing technology can create a close approximation of the courtroom setting. However, under the specific facts of the case, the Court also held that the motion judge abused her discretion in denying the defendant’s motion to continue where he waived his speedy trial rights and where a delay would not substantially harm the government’s case, especially since there were no civilian victims or witnesses.

Background

John W. Vazquez Diaz, charged with drug trafficking in the Superior Court, sought an evidentiary hearing on his suppression motion. After the onset of the COVID-19 pandemic, the judge ordered the hearing to proceed via Zoom. The defendant objected, waived his speedy trial rights, and requested that the case be continued until an in-court proceeding could be held. The judge denied the request, and the defendant filed a direct appeal pursuant to G. L. c. 211, § 3. The single justice reserved and reported the matter to the full Court.

The Opinion

In the opinion, authored by Justice Cypher, the Court addressed—and rejected—the defendant’s State and Federal constitutional arguments.

As to the defendant’s right to be present during a critical stage of the proceedings, derived from article 12 of the Massachusetts Declaration of Rights and the Sixth Amendment to the United States Constitution, the Court concluded that under certain circumstances, a suppression hearing could be held by videoconference so long as the technology provided adequate safeguards. The Court reasoned that Zoom could “approximate a live physical hearing” and “effectively safeguard the defendant’s right to be present” by permitting him to listen to evidence, adequately observe the testifying witnesses, and privately consult with counsel using virtual, private Zoom “breakout rooms.” Id. at 342. Nevertheless, the Court determined that under the particular circumstances of the case and in light of the “exceptional circumstances” of the pandemic, the judge abused her discretion by denying the defendant’s motion to continue. Id. at 344 & n.13. The Court opined, however, that the government’s “significant” interest in protecting public health “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.” Id. at 343.

As to the defendant’s argument that a virtual hearing deprived him of his right to confrontation, the Court joined a minority of states to hold for the first time that the confrontation right extends to suppression hearings. But it concluded that, under art. 12, a virtual evidentiary hearing held during the pandemic is not a per se violation of that right, opining that videoconferencing (when functioning properly) closely approximates the courtroom because two-way video transmission permits live cross-examination and the defendant and the judge are virtually present onscreen and can see all the participants. As to the Sixth Amendment, the Court explained that the right may be satisfied without physical, face-to-face confrontation when necessary to further an important public policy and where the reliability of the testimony can be assured. It determined that protecting public health during the pandemic constituted an important public policy and two-way videoconferencing technology was sufficiently reliable, but ultimately demurred on whether a virtual hearing was necessary in light of its holding regarding the continuance motion.

The Court also rejected the defendant’s argument that a virtual hearing violated his Sixth Amendment right to a public hearing, concluding that a videoconference in which the public could join by telephone or Zoom was not a “constitutional closure” because the virtual nature of the hearing adjusted “only the forum” and “not the prospective audience.” Id. at 353. It reasoned that the limits on access were “no broader than necessary given the severity of the pandemic” and that the court provided virtual alternative access for those with the requisite technology. Id. at 354.

Finally, the Court rejected the defendant’s concerns about his right to the effective assistance of counsel under art. 12 and the Sixth Amendment, concluding that virtual hearings with virtual private breakout rooms are not a deprivation of that right. The Court noted that the defendant can interrupt the proceeding to confer with counsel, but also advised judges to confirm that the technology is functioning properly and encouraged judges to check with counsel periodically to ask whether their clients wished to confer.

The Concurrence

Justice Kafker authored a concurring opinion. Although he agreed with the Court’s conclusion that in this case the judge abused her discretion by denying the motion to continue, he wrote separately to emphasize the potential problems of virtual hearings and to implore judges to proceed cautiously. He noted that virtual hearings “may alter our evaluation of demeanor evidence, diminish the solemnity of the legal process, and affect our ability to use emotional intelligence, thereby subtly influencing our assessment of other participants.” Id. at 357 (Kafker, J., concurring). For example, he noted that body language is concealed, subpar lighting obscures facial expressions, eye contact is impossible, small images and diminished sound dilute the potential emotional impact, and even a participant’s Zoom background may trigger subconscious biases. He also noted the potential for technological problems, user errors, and accessibility issues. “Importantly,” he wrote, “access to reliable Internet is often dependent on income, socioeconomic background, and educational attainment,” and “[l]ack of Internet access is more common among racial minorities.” Id. at 366 n.16. Moreover, he expressed concern about the defendant’s confrontation rights, cautioning that “‘there is something deep in human nature that regards face-to-face confrontation between accused and accuser’ as essential to fairness, a concept that has ‘persisted over the centuries because there is much truth to it.’” Id. at 364–65 (quoting Coy v. Iowa, 487 U.S. 1012, 1017, 1019 (1988)).

Implications

In some ways, the Vazquez Diaz decision is narrow and case-specific: the motion judge abused her discretion in denying the defendant’s motion to continue during a pandemic where the defendant had waived his right to a speedy trial and a delay would not substantially harm the government’s case. But the holding leaves open the possibility that under different circumstances, a judge may proceed virtually over the defendant’s objection. This might include situations where there are costs to delay, including the prosecution’s ability to prove its case because evidence may disappear altogether or degrade as memories fade.

While the Court’s decision regarding the requested continuance may be seen as narrow, the Court did not limit its discussion to that issue. Rather, it broadened its focus to reach the significant issue of the constitutionality of virtual evidentiary hearings and found them permissible, despite the concerns articulated by Justice Kafker. If virtual evidentiary hearings continue to be used after the current pandemic when no longer necessary to protect public health, these constitutional issues will surely be the basis of future litigation.

In the meantime, the decision puts the onus on defense attorneys to vigilantly protect their clients’ rights. That might mean requesting a continuance rather than proceeding to a Zoom-based evidentiary hearing when it is in their clients’ best interests to do so. And when proceeding virtually, advocates must ensure their clients connect from a neutral location with stable internet, assume responsibility for requesting breakout rooms, object if circumstances impede the judge’s evaluation of a witness (e.g., poor lighting or distractions), and confirm that the judge monitors the hearing for technological problems.

The Court’s holding that the right to confrontation extends to evidentiary suppression hearings is a significant victory for criminal defendants. It is now up to trial courts and practitioners to ensure that confrontation—so essential to fairness—is not diluted in this new virtual world.

Brett D. Lovins is a criminal defense attorney at Lovins & Metcalf. He represents individuals accused of wrongdoing from the initial stages of investigation through appeals.


When Everything Slowed Down: Evaluating the Right to Speedy Trial in a Pandemic

Deakin_106x126Janet L. Sanders_106x126by Hon. David A. Deakin and Hon. Janet L. Sanders

Legal Analysis

The COVID-19 pandemic has halted jury trials in Massachusetts state courts since March 13, 2020. The inability to set a reliable trial date, in turn, has created a logjam of unresolved cases. Between 2017 and 2019, Massachusetts trial courts empaneled an average of 3883 juries each year. See Jury Management Advisory Committee, Report and Recommendations to the Justices of the Supreme Judicial Court on the Resumption of Jury Trials in the Context of the COVID-19 Pandemic, at App. 9, p. 107 (July 31, 2020). It is fair to project that roughly this number of cases will have been added to the courts’ backlog as a result of the moratorium on jury trials for most of 2020 and early 2021. Although there are anecdotal reports of some decline in new indictments and civil filings, the backlog is almost certain to continue to grow in the coming months.  

On the civil side, this backlog means a longer wait for one’s day in court. On the criminal side, the prospect of continued delay is even more serious. With limitations on the availability of jury trials expected to extend well into 2021, requests to dismiss on speedy trial grounds will become more commonplace. This article examines both the constitutional basis for such requests and the implications of the pandemic for Rule 36 motions to dismiss. The article also attempts to shed light on how lawyers and judges should approach the analysis of these issues – particularly the constitutional limitations on delay imposed by a public health emergency.

The Constitutional Analysis

Criminal defendants have rights to a speedy trial under both the United States and Massachusetts Constitutions. See Barker v. Wingo, 407 U.S. 514 (1972); Commonwealth v. Dirico, 480 Mass. 491 (2018). Under the federal Constitution, the Sixth and Fourteenth Amendments guarantee the right to a speedy trial. See Barker, 407 U.S. at 515. In Massachusetts, Article 11 similarly and independently protects that same right as a matter of state constitutional law. See Dirico, 480 Mass. at 505, citing Commonwealth v. Butler, 464 Mass. 706, 709 n.5 (2013); Commonwealth v. Gilbert, 366 Mass. 18, 22 (1974). In applying Article 11, Massachusetts courts look to federal precedent interpreting the Sixth Amendment “because the analysis is analogous.” Dirico, 480 Mass. at 505.

Under both the federal and Massachusetts Constitutions, a defendant seeking dismissal for violation of the speedy trial right must show initially “that the interval between accusation and trial has crossed the threshold dividing ordinary from ‘presumptively prejudicial delay.” Dirico, 480 Mass. at 505. This burden, however, “is relatively modest.” Dirico, 480 Mass. at 506. Massachusetts “courts have generally found post accusation delay ‘presumptively prejudicial’ at least as it approaches one year.” Dirico, 480 Mass. at 506, quoting Doggett v. United States, 505 U.S. 647, 652 n.1 (1992).

Upon a finding of presumptively prejudicial delay, both federal and Massachusetts courts then apply Barker’s familiar four-part test. This requires the court to consider: “the length of the delay, the reason for the delay, the defendant’s assertion of his right to a speedy trial, and prejudice to the defendant.” Dirico, 480 Mass. at 506, citing Barker, 407 U.S. at 530. Although courts will look to the four-part Barker analysis to resolve speedy trial claims, its application to the extraordinary situation of a global public health emergency raises novel issues.

In calculating the length of the delay, the first Barker factor, courts begin with the date the complaint was first lodged against the defendant. The pandemic is almost certain to add well over a year to the wait for trial for those defendants arrested before its onset. For those arrested during the pandemic, it will add delay of as much as a year or even more.  

The second Barker factor, which looks to the reason for the delay, involves an analysis of the government’s role in creating it. See Dirico, 480 Mass. at 506. Generally, the greater the fault attributed to the government, the more heavily that factor weighs in favor of dismissal. See Dirico, 480 Mass. at 406, citing Butler, 464 Mass. at 716; Doggett, 505 U.S. at 657. The most common application of the second Barker factor is to cases in which the prosecution is responsible for the delay, which is not the case here. Massachusetts courts have not yet had  occasion to apply the Barker analysis to emergency situations. However, two federal courts that have analyzed delays due to public emergencies have held that delays of three and seven weeks resulting from a volcanic eruption and the September 11, 2001 attacks in New York, respectively, were excluded from the calculation of elapsed time under the federal Speedy Trial Act, 18 U.S.C. § 3161(h)(8)(A). Each of these cases was limited to an application of the Speedy Trial Act, so neither involved application of the Barker analysis. Moreover, each involved a relatively modest delay caused by a localized emergency. The delay attributable to the COVID-19 pandemic, by contrast, will be much longer than the delay in either of these cases and will be experienced throughout the Commonwealth and, to varying degrees, across the country.

In the current situation, in which jury trials have been prohibited in the Commonwealth by order of the Supreme Judicial Court since March 16, 2020, the prosecution is not responsible for delay. Through various orders, the SJC has suspended jury trials because of the health risks they pose to participants. The unavailability of jury trials is thus at least arguably the result of government action. See State v. Labrecque, ___ A.3d___, 2020 WL 5268718 (Vt. Sep. 3, 2020) (delay caused by COVID-19 pandemic attributed to government moratorium on jury trials, despite lack of prosecutorial responsibility). The SJC’s decisions to suspend jury trials may ultimately be deemed to have been entirely reasonable under the circumstances. Defendants, however, will no doubt point to states like Arizona, Georgia, Hawaii, Indiana, Kansas, Louisiana, Maine, Mississippi, North Dakota, Oregon, Utah, Vermont, Washington, West Virginia, and Wisconsin, where court systems have authorized and undertaken the resumption of jury trials under certain circumstances. See https://www.justia.com/covid-19/50-state-covid-19-resources/court-operations-during-covid-19-50-state-resources/.

Although it is not known to the authors how many jury trials have been conducted in any of these states, how safely they have been carried out, or how each state is measuring safety, defendants in Massachusetts can be expected to argue that the Commonwealth’s more conservative approach is a form of state action that unreasonably deprived them of their due process rights. At least one federal district court has relied on a version of this argument in a habeas corpus petition to order that the state court set a prompt trial date or face dismissal. See Kurtenbach v. Howell, 2020 WL 7695578 (D.S.D. Dec. 28, 2020). In that case, the Court (Kornmann, J.) remarked that “[t]here is no pandemic exception to the Constitution.” Kurtenbach, 2020 WL 7695578 at *5, quoting Carson v. Simon, 978 F.3d 1051, 1060 (8th Cir. 2020). It seems reasonable to forecast that the Supreme Judicial Court will rule that its orders suspending jury trials were necessary in light of the public health emergency, but this is by no means certain. Perhaps equally uncertain is the resolution of this question by federal courts, which may ultimately be asked to review the SJC’s actions.

The third Barker factor is the defendant’s assertion of his speedy trial right. Although this necessarily entails a fact-specific inquiry, defendants can be expected to argue – not without basis – that an assertion of the speedy trial right in a period when jury trials are suspended is the quintessential exercise in futility. That the Supreme Judicial Court might accept such an argument, however, says little about how it will resolve the issue. Just as a criminal defendant  should perhaps not be expected to assert a right futilely, the prosecution cannot be faulted for not proceeding with a trial that by order of the SJC cannot be conducted. This balance of blamelessness merely underscores the novelty of applying the Barker analysis in a time of unprecedented suspension of jury trials.

In evaluating the fourth Barker factor – the extent to which a defendant has been prejudiced by the delay – courts must consider the interests protected by the speedy trial right. See Dirico, 480 Mass. at 507, quoting Barker, 407 U.S. at 532. These are to minimize “oppressive pretrial detention,” the anxiety of the accused, and prejudice to the defense. Dirico, 480 Mass. at 507. The defendant bears the burden of establishing prejudice. Dirico, 480 Mass. at 505. The question of prejudice is likely to be the one on which most speedy trial motions brought to address pandemic-related delay will turn. That is because the length of delay alone rarely leads to dismissal. See infra. This is particularly so when the delay is caused by a global public health emergency. That said, and as always, if a defendant can show that the delay has compromised the defense’s ability to contest the Commonwealth’s evidence, the fourth Barker factor could well justify dismissal.

A defendant who has been unable to post bail, or has been held without bail based on a finding of dangerousness under G. L. c. 276, § 58A, certainly has a basis to argue that prejudice has resulted from the delay of the trial. The argument would be especially powerful under Dirico’s “oppressive pretrial detention” prong if the prosecution’s case has weakened over time, or if the length of pretrial detention approaches the length of the sentence that the defendant likely would receive if convicted.      

In dicta in its June 20, 2020, decision in Commonwealth v. Lougee, 485 Mass. 70, 84 (2020), the Supreme Judicial Court acknowledged the looming due process issue presented by suspending jury trials. The Lougee Court observed that the delay caused by the pandemic and the Court’s orders responding to it had “yet to approach the length of delay that would trigger a due process analysis.” Left unanswered, however, is how long a delay would amount to a due process violation. Unsurprisingly, there is no case law that analyzes the issue in the context of a protracted public health emergency. And the reported cases analyzing the requirements of procedural and substantive due process provide the courts with only the most general guidance.

Substantive due process forbids the government from acting in ways that “shock[] the conscience” or interfere with rights “implicit in the concept of ordered liberty.” United States v. Salerno, 481 U.S. 739, 746 (1987). The standard of review applied by a reviewing court under substantive due process analysis varies depending on the nature of the right at stake. See Aime v. Commonwealth, 414 Mass. 667, 673 (1993), citing Salerno, 481 U.S. at 748-51. With respect to “fundamental” rights – and surely that would include the right to a speedy trial – courts “must examine carefully the importance of the governmental interests advanced and the extent to which they are served” by the challenged governmental order or regulation.  Id.  Courts typically will uphold those orders or statutes that are “narrowly tailored to further a legitimate and compelling governmental interest.’” Id.    

Thus, courts are likely to analyze a state moratorium on jury trials as a speedy trial issue, the outer limits of which are set by substantive due process doctrine. That is, the United States and Massachusetts constitutions surely will not tolerate a Barker analysis producing a result that “shocks the conscience.” It is conceivable, therefore, that a pandemic could last long enough – years, for example – that the delay itself could constitute prejudice, even if individual defendants could not establish prejudice under the more conventional analysis of Barker’s fourth prong.

Stating this proposition, of course, does not answer the central question of how long a pandemic-necessitated delay the United States and Massachusetts constitutions will tolerate. The analysis merely frames the question. There are not yet any reported Massachusetts trial court decisions addressing the application of either the Barker or general due process analysis to trial delays caused by the pandemic. At the time of publication, several federal district courts had been presented with speedy trial challenges based, at least in part, on delay caused by the COVID-19 pandemic. See, e.g., United States v. Tapp, 2020 WL 6483141 (E.D. LA November 4, 2020); United States v. Woolard, 2020 WL 6469952 (W.D. WA November 3, 2020); United States v. Zhukov, 2020 WL 6302298 (E.D.N.Y. October 27, 2020). None, however, has dismissed a case on speedy trial grounds related to the pandemic. Cf. United States v. Smith, 460 F. Supp. 3d 981, 984 (E.D. Cal. 2020) (“Almost every court faced with the question of whether general COVID-19 considerations justify an ends-of-justice continuance and exclusion of time has arrived at the same answer: yes.”). But cf. United States v. McCullough, 2020 WL 6689353 (W.D. Tenn. November 12, 2020) (travel restrictions imposed by pandemic do not justify prosecution’s request for delay). Because there is no closely analogous case law, courts will be inclined to turn to conventional speedy trial precedent, which, unfortunately, provides only loose analogies to the current public health emergency.

A review of Massachusetts speedy trial cases reveal none in which the length of the delay alone – without prosecutorial fault – has resulted in dismissal. Thus, in Commonwealth v. Butler, 464 Mass. 706 (2013), for example, the Supreme Judicial Court held that a delay of twelve years between the issuance of a district court complaint in 1991 and the defendant’s eventual trial on a rape charge in 2003 did not require dismissal, even though the Commonwealth’s negligence factored into the delay. Similarly, in Commonwealth v. Wallace, 472 Mass. 56 (2015), the SJC considered a delay of nine years between charge and trial in the case of two co-defendants. The Court concluded that the delay did not warrant dismissal in the case of the co-defendant who had fled to avoid prosecution, but did warrant dismissal of the case against the co-defendant who was held in federal custody for seven years before prosecutors moved to rendite him for trial. These decisions suggest that, because two of the Barker factors – the  cause(s) of the delay and the defendant’s assertion of his speedy trial rights – focus on the conduct of the parties, the mere fact of even protracted delay, without more, is unlikely to trigger dismissal.

Even if extended delay does not result in a due process violation and resulting dismissal, however, it has and will continue to affect the bail status of defendants held awaiting trial. On the one hand, the Supreme Judicial Court has made clear that the court must take into account the risks posed by COVID-19 if the bail determination could result in the defendant’s detention. See CPCS v. Trial Court, 484 Mass. 431, 435 (2020) (COVID risk constitutes changed circumstance for purposes of bail review); Christie v. Commonwealth, 484 Mass. 397, 401 (2020) (error for trial judge not to reconsider motion for stay of sentence in light of pandemic). Cf. Commonwealth v. Nash, 486  Mass. 394, 406 (2020) (“Our objective in Christie was to reduce temporarily the prison and jail populations, in a safe and responsible manner, through the judicious use of stays of execution of sentences pending appeal.”). On the other hand, the SJC has actually extended the period during which a defendant can be held without bail based on dangerousness. Although  G.L. c 276, § 58A provides that a defendant cannot be detained without bail for longer than 180 days, the SJC has held that the delay caused by the moratorium on jury trials is excluded from the calculation of that time period. See Lougee, 485 Mass. at 84-85. What is clear, however, is that recent SJC precedent establishes that a court’s bail decision during the COVID-19 pandemic should be made with special care, particularly given the heightened risk of contagion in the correctional context and the likelihood that trial for that defendant will be an unusually long way off.  

The Rule 36 Analysis

Primarily a rule of case management, Mass. R. Crim. P. 36 overlaps with but is “wholly separate” from constitutional speedy trial analysis. Dirico, 480 Mass. at 504, quoting Commonwealth v. Lauria, 411 Mass. 63, 67 (1991). Rule 36 dictates dismissal as a matter of  presumption if the defendant is not tried within one year of arraignment. Dirico, 480 Mass at.497. The rule, however, excludes delay that results from a number of specified occurrences. See Mass. R. Crim. P. 36(b)(2)(A)-(H). The Commonwealth bears the burden of establishing that the delay in question is excluded from the Rule 36 calculation. Dirico, 480 Mass. at 497, citing Commonwealth v. Spaulding, 411 Mass. 503, 504 (1991). Among the express exclusions in Rule 36 are periods of time about which the court finds that “the ends of justice served by granting of the continuance outweigh the best interests of the public and the defendant in a speedy trial.” Mass. R. Crim. P. 36(b)(2)(F).

The Supreme Judicial Court has also discerned in Mass. R. Crim. P. 36 a common-law basis for exclusion. Even if delay is not expressly excluded by the provisions of Rule 36(b)(2), it still may be excluded from the Rule 36 calculation if the defendant “acquiesced in, was responsible for, or benefitted from the delay . . . .” Dirico, 480 Mass. at 498-499. This basis for exclusion is rooted in a defendant’s “obligation . . . to ‘press their case through the criminal justice system.’” Commonwealth v. Graham, 480 Mass. 516, 524 (2018), quoting Lauria, 411 Mass. at 68. The precise limitations of this doctrine remain both fact-specific and surprisingly complex.

That said, certain principles have emerged from recent cases. First – wholly apart from the express exclusions in Rule 36(b)(2)(F) – if “a defendant agrees for the first time to schedule a previously unscheduled event, there is no ‘continuance’ or ‘delay’ that can be excluded under rule 36.” Graham, 480 Mass. at 533. Second, “unanticipated events that the parties . . . agree to work around” are excluded from the Rule 36 computation. Graham, 480 Mass. at 533.

In its March 13, 2020 order, the Supreme Judicial Court propounded a statewide finding under Rule 36(b)(2)(F) that the indefinite postponement of jury trials “serve[s] the ends of justice and outweigh[s] the best interests of the  public and the criminal defendant in a speedy trial . . . .” See Lougee, 485 Mass. at 72 (SJC’s statewide order constitutes finding under Rule 36(b)(2)(F)). This appears to be the first time that the SJC has made a finding – under either Rule 36 or constitutional principles – applicable to all criminal cases pending in the Commonwealth. That it was the SJC that entered the finding in the context of a global pandemic, however, makes it unlikely that a subsequent SJC would invalidate it, at least as an interpretation of Rule 36. In this context – unlike that of the speedy trial analysis – federal courts are not likely to be called upon to review the SJC’s interpretation of a Massachusetts rule of criminal procedure.

Conclusion

A more prolonged suspension of the jury-trial right in the Commonwealth will eventually trigger a due process analysis. That would require courts to determine at what point continued delay of an individual jury trial either prejudices the defendant – under the Barker analysis – or “shocks the conscience,” as prohibited by substantive due process. The COVID-19 pandemic is a nearly unprecedented public health emergency, and one about which no one alive today can draw on experience. The constitutional speedy trial analysis is familiar and predictable; its application to the extraordinary situation that currently prevails is anything but.

David A. Deakin is an associate justice of the Massachusetts Superior Court. Before taking the bench in 2019, Judge Deakin was deputy chief and acting chief of the Criminal Bureau in the Massachusetts Attorney General’s Office. 

Janet L. Sanders is a Superior Court Justice. Before her appointment in 2001, she  worked as a criminal defense lawyer and then served on the district court beginning in 1995.