J. Christopher Collins, Co-chair

Joseph M. Hamilton, Co-chair

In Vazquez Diaz v. Commonwealth, 487 Mass. 336 (2021), the Supreme Judicial Court of Massachusetts addressed the use of Zoom evidentiary hearings, including trials, over a party’s objection.

The case before the court concerned the use of Zoom for an evidentiary hearing on a criminal defendant’s motion to suppress. Diaz moved to continue the suppression hearing until it could be held in person. The court held that a virtual hearing was not a per se violation of Diaz’s rights to be present, right to confrontation, right to a public trial, or effective assistance of counsel. However, because Diaz had waived his right to a speedy trial and there were no civilian victims or witnesses, the court held the trial court abused its discretion in denying the motion to continue the suppression hearing until it could be held in person.

In addressing the constitutional arguments, the court held that a Zoom hearing could be conducted without violating Diaz’s right to be present so long as the video conferencing technology provided adequate safeguards by allowing Diaz to be present, to listen to the evidence, observe the witnesses, and privately consult with his attorney, especially given the Commonwealth’s interest to protect the public health during the pandemic.

In regard to Diaz’s right to confrontation, it was not violated because live cross examination could still take place and Diaz would be present. The court held that while Zoom did not allow for physical, face-to-face confrontation, the technology created a close approximation that sufficiently safeguarded the right to confrontation. While the court again held that an important public policy would need to be established to avoid in-person confrontation, the pandemic did so.

The court next addressed Diaz’s right to a public trial. The court found that a virtual hearing did not constitute a closure of the courtroom in the constitutional sense. However, the court did have the right to limit access to the proceeding.

Lastly, the court found that the Zoom hearing did not deprive Diaz of effective assistance of counsel. It did require the court to ensure that the technology was functioning properly and that Diaz had the opportunity to use a private breakout room if requested.

In a concurring opinion, Justice Kafker wrote to emphasize that the courts must be acutely attentive to the subtle and not so subtle distorting effects on perception and other potential problems presented by virtual evidentiary hearings.

Virtual hearings are not the same as in-person evidentiary hearings. Justice Kafker noted evolving empirical evidence indicates a virtual hearing may alter the evaluation of demeanor evidence, diminish the salinity of the legal process, and affect the fact finders ability to use emotional intelligence, thereby subtly influencing the assessment of participants in a hearing. As such, Justice Kafker argued that judges should be prepared to allow continuances when a criminal defendant is willing to remain in custody and waive a speedy trial in order to receive a safe in-person hearing within a reasonable time.

Justice Kafker elaborated on these issues in more detail in his concurring opinion.

This was an issue of first impression in Massachusetts and as of the time the opinion was issued the court noted that few other jurisdictions have directly addressed whether a virtual evidentiary hearing violates constitutional rights.

This opinion, including the concurrence, addresses and informs a number of issues that will be facing parties who object to criminal or civil trials being held virtually.