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Does the Constitution Permit Zoom motions in Massachusetts?

Is it Constitutional to Conduct Evidentiary Hearings Over Zoom?

In John Vasquez Dias v. Commonwealth the question before the Massachusetts Supreme Judicial Court was whether a criminal defendant’s constitutional rights are violated by a court choosing to pursue an evidentiary hearing, over the defendant’s objections, over Zoom. Vasquez Diaz was charged with drug trafficking and if convicted, he could face over a decade in prison.

What happened in Vasquez Diaz?

On May 30, 2019 Vasquez Diaz was charged with trafficking more than 200 grams of cocaine. Pursuant to G.L. c. 94C § 32E(b), conviction of this charge carries a minimum sentence of twelve years in state prison.

Vasquez Diaz filed a motion to suppress evidence and statements in November 2019 and his evidentiary hearing was set to be held in January 2019. The hearing was continued to March upon request by Vasquez Diaz. The hearing was then delayed two more times, once upon request by the Commonwealth and once by the Court. As a result, the Court directed that the hearing take place over Zoom, to which Vasquez Diaz objected.

The court overruled Vasquez Diaz’s objection to the hearing being held on Zoom and the hearing was scheduled for September 2020. Vasquez Diaz then filed a petition for extraordinary relief and a motion to stay the proceedings in trial court.

The Defenses’ Argument

 Counsel for Vasquez Diaz argues that conducting an evidentiary hearing over Zoom violated Vasquez Diaz’s constitutional rights of being able to confront the witnesses against him, to be present at the hearing, to a public hearing, and to the effective assistance of counsel. The Defense further argues that a virtual hearing could not fairly “approximate” an in-person hearing.

  1. Ineffectiveness of Counsel

The Sixth Amendment guarantees that a defendant has the effective assistance of counsel. Vasquez Diaz argues that being held in jail by himself during the hearing amounts to ineffective assistance of counsel. Vasquez Diaz’s attorneys reasoned that them not being with him due to COVID-19 restrictions hindered their ability to counsel him. In order to communicate with Vasquez Diaz during court, he and his attorneys had to congregate in a Zoom “breakout room” which is not the same as communicating in person.

  1. The Right to Be Present in Court


A defendant has the right to be present at trial unless they waive that right. Vasquez Diaz’s counsel relies on United States v. Williams in their argument by quoting “anyone who has used videoconferencing software” knows “virtual reality is rarely a substitute for actual presence.”

  1. The Right to a Public Hearing

Although the public is allowed to attend Zoom hearings, interested parties must have the Zoom link, or be able to use the Court’s website to access the hearing, both methods require having internet and some sort of device to steam from. Vasquez Diaz’s uncle, with whom he lived with before he was arrested, was unable to attend the hearing due to this barrier.

Additionally, several evidentiary suppression hearings in other cases have taken place in person in the Suffolk Superior Court during the pandemic without objection by the Commonwealth.

  1. The Defendant’s Right to Confront a Witness Before Them

The defendant’s right to confront a witness comes from the 6th Amendment of the Constitution, otherwise known as the Confrontation Clause. The defense also relied on Commonwealth v. Bergstrom in their argument that a witness’ demeanor or body language is not easily transmitted over video and therefore it is more difficult to determine whether the witness is credible or not. He supported this position by arguing that a defendant and a witness cannot truly face each other during a video conference. Ultimately the Court ruled that Vasquez Diaz’s evidentiary hearing take place over zoom and that it approximate as closely as possible to an in-person court room hearing.


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