SJC Issues Guidance for Virtual Trials
In Commonwealth v. Curran, No. SJC-13093 (Dec. 30, 2021), the Supreme Judicial Court affirmed the defendant’s conviction after a virtual bench trial despite constitutional concerns raised on appeal. The decision was the latest to find that virtual hearings in criminal cases are not a per se constitutional violation, at least when the defendant consents. The court took the opportunity to issue guidelines governing the conduct of virtual trials going forward.
The SJC has previously allowed pretrial hearings to proceed over Zoom. In Commonwealth v. Vazquez Diaz, the SJC held that a suppression hearing held over Zoom is not a per se violation of a defendant’s constitutional rights during the COVID-19 pandemic. In Curran the SJC extends that holding to bench trials in criminal cases.
Martin Curran was charged with one count of assault and battery on a family member and one count of strangulation or suffocation. See G.L. c. 265, §§ 13M(a), 15D(b). He was held without bail after a dangerousness hearing under G.L. c. 276, § 58A. Curran waived his right to a trial by jury. He was tried over Zoom, with everyone present in the courtroom except Curran and one witness. The court found Curran guilty of simple assault and battery and dismissed the strangulation or suffocation count as well as the portion of the assault and battery count alleging the victim was a member of the defendant’s household or family.
On appeal, the defendant argued that a virtual bench trial violated his constitutional rights to confront the witnesses against him, to be present at trial, to have a public trial, and to the effective assistance of counsel. Because Curran made these arguments for the first time on appeal the court reviewed for a substantial risk of a miscarriage of justice. The standard of review proved to be fatal to Curran’s challenge where he did not argue that he was prejudiced by the virtual trial.[1] That said, the court’s analysis suggests that virtual trials will pass constitutional muster when the defendant consents.
The confrontation right under the Sixth Amendment and Article 12 includes both the right to question witnesses and the right to see and be seen by those witnesses face-to-face. The SJC found that there is no absolute right to in-person confrontation, although the court recognized that physical confrontation is important. Because Curran did not argue that virtual confrontation materially influenced the verdict, the court found no substantial risk of a miscarriage of justice in this case.
Defendants have a constitutional right to be present for all critical stages of court proceedings under the confrontation and due process clauses of the Sixth and Fourteenth Amendments and Article 12. See also Mass. R. Crim. P. 18(a). The SJC rejected Curran’s argument that a virtual hearing is necessarily inconsistent with the right to be present. The court found that the Zoom setup here was sufficient. The defendant could speak with his attorney in a private setting, the defendant could see his attorney, the judge, and the witnesses on a computer monitor, and the trial court periodically ensured that the technology was working correctly.
Curran also argued that a virtual trial violated his Sixth Amendment right to a public trial because the public could not attend in person. The SJC found that the public was not excluded where the district court allowed counsel to disseminate to the public a link to view the trial and where Curran did not argue that he was prejudiced by any purported exclusion of the public.
Finally, the SJC rejected Curran’s argument that he was denied the effective assistance of counsel because he could not discuss trial with his attorney when they were in different locations. The court found that Curran could have asked his attorney to move to the private Zoom breakout room offered by the court for privileged conversations and that Curran did not identify any error that might have been mitigated by being physically next to his attorney.
The court took the opportunity to issue guidance under G.L. c. 211, § 3 to be used in virtual bench trials in criminal cases going forward. The SCJ advised:
Prior to the commencement of such a trial, the judge shall obtain a defendant's assent to a virtual bench trial on the record. In so doing, the judge shall satisfy him- or herself that the defendant understands that he or she has the option of appearing in person. In addition, the judge shall explain to the defendant the procedure to be followed during the trial, including how to communicate with counsel, and the arrangements made for witness testimony and the public's access to the proceedings. Finally, the judge shall ensure that the defendant has had an opportunity to discuss the decision to proceed with a virtual bench trial with trial counsel.
Although the SJC affirmed Curran’s conviction in this case, the court also recognized that constitutional rights are implicated when court hearings are held remotely. Defendants in future cases should continue to preserve objections to virtual hearings where appropriate.
[1] That result differs from Vazquez Diaz, when the defendant sought a continuance of the suppression hearing and waived his speedy trial rights. Although the court did not find that the virtual hearing in Vazquez Diaz was a per se constitutional violation, it did find the trial court abused its discretion when it denied the defendant’s motion to continue the hearing and waived his speedy trial rights.