As published in Massachusetts Lawyers Weekly, March 8, 2021
John Vazquez Diaz would rather stay in jail indefinitely than have a court hearing via videoconference.
Vazquez Diaz is awaiting trial on a drug charge. After he filed a motion to suppress some of the evidence as improperly obtained, the judge scheduled a hearing via Zoom. Though such hearings have now become routine, Vazquez Diaz objected. He argued that a video hearing isn’t simply an inconvenience but a violation of fundamental liberties: namely, the Sixth Amendment’s promise “to be confronted with the witnesses against him,” also known as the Confrontation Clause.
The Supreme Judicial Court is now pondering the issue in one of the first such challenges in the nation, Vazquez Diaz v. Commonwealth of Massachusetts, Case No. SJ-2020-0608. Oral arguments took place in mid-December 2020.
The Confrontation Clause has been interpreted to require the witness’s face-to-face presence. This phrase has, in turn, been held to mean cross-examination by the defendant and observation by the defendant and the jury.
So, what’s the problem? A witness on Zoom is perfectly visible and can be cross-examined. So far, the arguments against video appearances have focused on the qualitative limitations of the “it’s just not the same” variety.
The critics complain important details of appearances and demeanor may remain out of the frame, it’s easier for the jury to tune out and miss important details, there are opportunities for couching and tampering, and so on.
The supporters predictably argue that those concerns are equally present in the physical hearings or are largely overblown.
Neither side, however, has so far been able to produce meaningful empirical evidence. No one yet has compared how often online juries, as opposed to in-person juries, doze off during trial and shown any effects on the outcome.
Vazquez Diaz, however, for the first time advanced a more scientific argument. To prove that the online trials really are not the same, Vazquez Diaz’s legal team has offered statistical studies that compare the outcomes of online hearings and their in-person counterparts.
The first study originated in Colorado and was conducted to assess the local bail hearing system. In comparing the outcome of the hearings before and after they were moved to online format, the authors discovered that bail amounts increased and bail reductions decreased in the online iteration. In other words, a defendant appearing in person would have a lower bail or a larger bail reduction than the one at an online hearing, all other things being equal.
Similarly, a study of the immigration deportation hearings discovered that those appearing online were more likely to be deported than those appearing in person.
Finally we have real-world data showing that online hearings may not be the same. Obviously, the issue requires additional study, which it now appears can be done.
One assumes that the studies highlight the dehumanizing effect of the online hearings. It seems easier to deny bail to someone seen on TV, or to order someone who is not in the room deported.
Let us assume that the studies cited in Vazquez Diaz indicate that decision-makers are less sympathetic to defendants who are not physically in the room. However, is one entitled to the most empathetic ear when presenting the defense? Does the Constitution of the United States or the commonwealth of Massachusetts require such a result? And, if so, is the right to sympathy absolute, or is it subject to the constraints dictated by public health considerations during the pandemic?
As we await the SJC’s input, I, at least, expect these issues to dominate the discourse. It may be, however, that the court finds an entirely different basis for its decision, leaving these questions not merely unanswered, but unasked.