SJC rules Zoom court hearings OK, but …

In certain cases, judges should wait for in-person trials

THE TRIAL COURT is within its rights to hold hearings via videoconference due to the COVID-19 pandemic, but in certain circumstances a criminal defendant should be allowed to postpone a hearing until it can be held in personthe state’s Supreme Judicial Court ruled Wednesday. 

The SJC’s ruling provides new guidance for judges as they navigate the uncharted waters of a global pandemic that forced courts to move many of their operations online. The 37-page ruling written by Justice Elspeth Cypher finds that holding a hearing via Zoom during the pandemic is not by definition a violation of someone’s rights. But in a case where the defendant asks for an in-person hearing, waives his right to a speedy trial, and there are no other civilian witnesses or victims whose availability or memory might be affected by a delay, the decision said the judge should agree to postpone a hearing until it can be held in-person. 

The decision dealt with the case of John Vazquez Diaz, who was charged with trafficking cocaine and faced a potential mandatory minimum sentence if convicted. In November 2019, Vazquez Diaz filed a motion to suppress evidence. A motion hearing was continued several times, with the final postponement due to the COVID-19 pandemic. A Suffolk Superior Court judge then ruled, over Vazquez Diaz’s objections, that the hearing would go forward via Zoom. Vazquez Diaz is incarcerated on cash bail, but he agreed last year bto postpone the hearing and remain in jail until he could have an in-person hearing.  

Attorneys for Vazquez Diaz, who does not speak English and would require an interpreter, argued that holding a hearing via Zoom would violate his rights to be present in a courtroom, to confront witnesses, to a public trial, and to the effective assistance of counsel.  

Suffolk District Attorney Rachael Rollins argued that a virtual hearing would be adequate to protect his rights, while avoiding the public health dangers of an in-person hearing. 

Cypher concluded that a Zoom hearing does not violate a defendant’s right to be “present,” as long as the video technology is adequate to let him listen to testimony, observe witnesses, and privately consult with his attorney (for example, through a breakout room). A Zoom hearing also does not violate his right to confront witnesses, as long as two-way videoconferencing technology is used. 

Cypher found similarly that a Zoom hearing can be considered a “public trial,” since the public can listen through an audio line or view the proceedings via Zoom. Even if it were to be considered a partial closure, since some people may not have access to the technology, it would still be justified. “Here, reducing the spread of COVID-19 by limiting in-person gatherings during the pandemic is sufficient justification to impose such conditions,” Cypher wrote. 

Another concern raised by Vazquez Diaz was that he would not have access to informal communication with his attorney, like passing notes or whispering, that often occurs during a traditional court hearing. But Cypher wrote that because a defendant can interrupt the proceedings at any time to confer with his attorney, he does have effective counsel. In fact, she wrote, it may be harder to provide effective counsel at an in-person hearing today due to social distancing rules. She does caution that court officials must ensure that a private breakout room is available and the technology is working.  

However, despite the court’s general approval of hearings via videoconference, Cypher found that in Vazquez Diaz’s case, the circumstances warranted a postponement. The government’s main interest in a Zoom trial is to dispose of the case quickly, avoid public health risks, and ensure that no witness testimony is lost due to the delay. In this case, Cypher said, Vazquez Diaz waived his right to speedy trial, he was willing to wait until the public health danger passed, and there are no civilian witnesses. (She ruled that the evidence of police officers, who are involved in this case, can be adequately preserved.) 

In an unusual procedural step, Justice Scott Kafker wrote a 21-page concurring opinion in which he agreed with Cypher’s conclusion, but expressed the need for deeper scrutiny of the use of digital technology in the courtroom. “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,” Kafker wrote. “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 courtrooms can return to some semblance of normal.” 

While Zoom hearings enhance safety and convenience, Kafker said, they also come with the danger of influencing how a judge perceives litigants. Studies have shown that witnesses who testify remotely may be less likely to be perceived as credible or memorable. It is hard to make eye contact with a witness or judge someone’s demeanor or body language via video. There is less solemnity to a Zoom call than an in-court proceeding. Zoom hearings also create technological barriers for litigants who may not have access to a stable internet connection or a device, and they have created access barriers to the public when the technology does not work correctly. 

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Shira Schoenberg

Reporter, CommonWealth

About Shira Schoenberg

Shira Schoenberg is a reporter at CommonWealth magazine. Shira previously worked for more than seven years at the Springfield Republican/MassLive.com where she covered state politics and elections, covering topics as diverse as the launch of the legal marijuana industry, problems with the state's foster care system and the elections of U.S. Sen. Elizabeth Warren and Gov. Charlie Baker. Shira won the Massachusetts Bar Association's 2018 award for Excellence in Legal Journalism and has had several stories win awards from the New England Newspaper and Press Association. Shira covered the 2012 New Hampshire presidential primary for the Boston Globe. Before that, she worked for the Concord (N.H.) Monitor, where she wrote about state government, City Hall and Barack Obama's 2008 New Hampshire primary campaign. Shira holds a master's degree from Columbia University's Graduate School of Journalism.

About Shira Schoenberg

Shira Schoenberg is a reporter at CommonWealth magazine. Shira previously worked for more than seven years at the Springfield Republican/MassLive.com where she covered state politics and elections, covering topics as diverse as the launch of the legal marijuana industry, problems with the state's foster care system and the elections of U.S. Sen. Elizabeth Warren and Gov. Charlie Baker. Shira won the Massachusetts Bar Association's 2018 award for Excellence in Legal Journalism and has had several stories win awards from the New England Newspaper and Press Association. Shira covered the 2012 New Hampshire presidential primary for the Boston Globe. Before that, she worked for the Concord (N.H.) Monitor, where she wrote about state government, City Hall and Barack Obama's 2008 New Hampshire primary campaign. Shira holds a master's degree from Columbia University's Graduate School of Journalism.

“The evolving empirical evidence indicates a virtual hearing 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,” Kafker wrote. 

 “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. 

In an amicus brief, racial justice advocacy groups had argued that forcing a defendant to have a virtual hearing over his objections carries racial justice implications, since poor and minority defendants generally have less access to the internet and devices. Neither Cypher nor Kafker’s written opinions mentioned the racial aspects of the case.