Defense Perspectives on Virtual Hearing Inequities: Commonwealth of Massachusetts v. Vazquez-Diaz

Mr. Vazquez-Diaz appealed a trial judge’s ruling requiring him to participate in a virtual suppression hearing over his objection. He requested to remain in jail until an in-person hearing could be safely held. Mr. Vazquez-Diaz argued that a virtual hearing would violate his Sixth Amendment rights to confrontation and to a public trial. The trial court rejected his challenge, reasoning that his Sixth Amendment rights “must yield to the unique health risks presently posed by the COVID-19 pandemic.”

Agreeing that the case presented novel legal issues, the trial judge stayed the ruling to allow Massachusetts’ highest court to hear the appeal. A joint amici brief was filed by the Boston Bar Association, The Massachusetts Association of Criminal Defense Lawyers, and The Charles Hamilton Houston Institute for Race & Justice at Harvard Law School. The Massachusetts Supreme Judicial Court held oral argument in December 2020 and, as of the writing of this column, has yet to issue its decision.

Mr. Vazquez-Diaz’s appeal raises concerns about technological constraints that result from the digital divide, communication barriers, and limits on public access. He recognizes that virtual hearings can be useful and should be made available to defendants who consent. But, for those who object, he argues that their constitutional rights call for an in-person hearing. Due to space constraints, I can present only a brief review of some key arguments raised on appeal.

Technological Constraints

While it is tempting to see virtual hearings as an inclusive solution for physical court access challenges, as Katy Naples-Mitchell, Esq. of the Charles Hamilton Houston Institute explains, existing societal inequities can be amplified by virtual technology. Judges may have quality broadband access and zoom-capable devices with large screens that enable them to see and hear all the hearing participants well. For others who appear before the court, what they see and hear may be qualitatively different.

Defendants, witnesses, and their supportive family members may lack reliable broadband internet. This may be due to pre-pandemic limitations, or pandemic-related overload where multiple household members are sharing devices and bandwidth. Documented race, class, and geographic broadband disparities suggest that these groups experience disparate access. And not all jails have strong broadband, which limits a confined defendant’s ability to fully participate.

People with resource constraints are also more likely to rely on smartphones to access virtual hearings. Even in a virtual hearing “gallery” view, a person participating by smartphone cannot see all hearing participants on one screen. The small thumbnail images make visually assessing credibility significantly more difficult, especially during back-and-forth conversations between participants who appear on different screens.

Low quality video or audio may open the door for implicit biases. When judges, prosecutors, and counsel are not able to fully hear and see participants, they may unintentionally rely on biases to interpret credibility. This, coupled with the potentially dehumanizing effect of screens, may inappropriately influence the outcome of the hearing. As one justice observed in oral argument, pre-pandemic empirical research on video hearings in immigration and bail contexts suggests that virtual hearings result in harsher penalties.

Communication Barriers

Barriers to contemporaneous, confidential communication in virtual hearings can limit the effectiveness of representation for non-English speaking defendants like Mr. Vazquez-Diaz. The trial court suggested that break-out rooms could accommodate attorney-client discussion. But, as trial counsel Chris Malcolm, Esq. explains, this is inadequate.

In a physical courtroom, a defendant who notices that a witness has lied during examination will lean over and whisper this to the interpreter who will, in turn, inform defense counsel. There is no virtual mechanism for the client to signal the interpreter to ask the attorney to ask the judge to create a private break-out room. Even if there was, break-out rooms interrupt the flow of questioning and expose the defense’s strategy, allowing an untruthful witness time to regroup.

Public Access

The trial court utilized an audio-only line for public access. On appeal, Mr. Vazquez-Diaz argued that the lack of visual access violated his right to an open and public trial under the Sixth Amendment. Why is visual access so important? It is tied to the public’s legitimizing role in criminal proceedings.

Chauncey Wood, Esq. of the Massachusetts Association of Criminal Defense Lawyers explains that, in our diverse society, “the people on the other side of the bench don’t look like the judge, don’t come from the same neighborhood as the judge, [and] don’t have the same expectations.” In cases like Vazquez-Diaz, where the defendant is part of a community that has historically experienced racial and/or national-origin motivated police misconduct, those communities assess fairness in suppression hearings by watching how the system works. Open access holds courts accountable and can increase trust.

Just as with defendants, it is difficult for the public to interpret facial expressions, perceive fidgeting, and hear changes in the timbre of an officer’s or witness’s voice over video. Audio-only links communicate even less. From the defense perspective, the public needs visual access to the courts to evaluate justice in action.

Meredith Shih, Esq. of the Boston Bar Association clarifies why the social implications of virtual hearings are so important. If courts refuse to address known technological constraints, communication barriers, and limits on public access, their commitment to equal justice for all can be questioned. Poorly designed and implemented virtual hearings amount to more than “technical inequities,” they implicate the criminal justice system writ large.

Recommendations

Although these concerns have been raised in a criminal suppression hearing, Vazquez-Diaz points to inequities that could emerge in other virtual civil and criminal hearings. Proactively tackling these challenges can increase court legitimacy in adversely affected communities. Katy Naples-Mitchell, Esq. notes that some challenges can be readily addressed, while others require a long-term commitment to reducing structural inequalities in and outside the courtroom.

Here are a few recommendations for immediate action:

• Develop enhanced consent protocols, especially for potentially dispositive hearings
• Research digital communication inequities in the court’s vicinity to better understand the technological challenges litigants face
• Recruit volunteers from different social and economic backgrounds, and who speak different languages, to test software and connectivity in a mock hearing
• Create an on-site “zoom room” with a full-size computer screen for those with technological access challenges
• Optimize accessibility features built into the virtual hearing software as suggested by the ABA’s Commission on Disabilities Rights

For more information on the Vazquez-Diaz case, the briefs are available on the Massachusetts Appellate Courts’ website. A video of the oral argument is available on the Massachusetts Supreme Judicial Court website.

The author gratefully acknowledges the following individuals for their generous sharing of time and information during the pandemic: Chris Malcolm, Esq., Katy Naples-Mitchell, Esq., Meredith Shih, Esq., and Chauncey Wood, Esq.