WEBVTT

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<v ->SJC-13009,</v>

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John W. Vazquez Diaz, the Commonwealth

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<v ->We have Attorney Kiley.</v>

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There she is.

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<v ->Sorry about that,</v>

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here I am.

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<v ->You can proceed.</v>

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<v ->Thank you.</v>

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Good morning, Rebecca Kiley,

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on behalf of John Vazquez Diaz,

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who sits currently at the Nashua Street Jail,

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held on cash bail and awaiting trial

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on a drug charge that carries

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a 12 year mandatory minimum sentence.

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Mr. Vazquez Diaz is before this court

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because he seeks alive in court hearing

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on his critical motion to suppress evidence and statements,

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which could mean the difference between conviction

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and acquittal in this case.

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He's willing to wait

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for such a hearing until the court deems it safe to be held.

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But nonetheless,

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the motion judge ordered him to submit now to a Zoom hearing

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in which he would appear alone

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and with a remote interpreter from the jail.

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Even when the technology operates perfectly

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and it often does not,

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a Zoom hearing is simply incapable

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of even approximating an in-court hearing.

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The judges order if carried out would violate several

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of Mr. Vazquez Diaz,

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as his core constitutional rights,

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including the right to be present

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and to confront the witnesses against him.

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But this court need that-

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<v ->When you say he would be willing to wait,</v>

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should we take that to mean that he would be willing

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to waive any claims of the delay?

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<v ->Yes, and he said that explicitly at the hearing,</v>

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before the motion judge,

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he acknowledged that this court has sort

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of handled the speedy trial,

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the Rule 36 VT trial issue for him so far,

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but said to the extent that becomes an issue,

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we will waive our Rule 36 rights to a speedy trial.

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In order to-

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<v ->This question is not going to surprise you.</v>

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And we all know we're in the midst of a pandemic here.

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The constitution is an organic document.

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We've got meet witnesses face to face

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is the language we're interpreting.

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We've got to infuse normative values

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into those open-ended provisions,

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recognizing the world we're living in right now.

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And when we take into account

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the private interest, Commonwealth interest

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in the outcome and concerns about an erroneous deprivation

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in the midst of a pandemic,

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why aren't Zoom hearings constitutional?

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They're not optimal.

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Why aren't they constitution?

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<v ->I think the key reason</v>

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is because there's no compelling reason to rush,

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to do this hearing in this case.

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And this, I really want to make clear

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because the Commonwealth doing

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the Mathews V.Eldridge balancing test

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that you just alluded to,

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the Commonwealth attempts

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to put on one side of the scales,

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the public safety and health risks that could be posed

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by holding the hearing currently.

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But it's not fair to do that where Mr. Vazquez Diaz

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has said,

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"look, I understand that I don't wanna put anybody

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"in jeopardy, I'm willing to wait."

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And what they haven't done is advanced a compelling reason

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to rush this.

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They gave two reasons

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and I'd like to talk about why I think

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neither of them is efficient here.

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The first is they-

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<v ->Miss.Kiley, before you get to that,</v>

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can I ask you just a preliminary question?

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<v ->Sure.</v>

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<v ->This case, if we ruin this case,</v>

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it's going to impact all cases.

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And I understand Mr.Dias,

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is personal about willingness to waive any speedy trial.

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What about other defendants though?

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Would you have us rule that,

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a Zoom hearing is only possible if there's a valid waiver,

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no fingers crossed for any other defendant.

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<v ->Yes, well, I think,</v>

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I'm sorry I feel like there were two parts

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in that question,

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but I think that the Zoom hearing is fine.

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If a defendant waives his constitutional rights

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to be present and to confrontation.

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As for the speedy trial issue,

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as justice Louis just suggested constitutional rights

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are not absolute and sometimes one has to bend to another.

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So defendant might have to sort of choose between his right

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to a speedy hearing and his right to an in person hearing.

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<v ->Does that waiver come into our due process balancing?</v>

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<v ->In...</v>

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I'm not sure I understand in what way.

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<v ->There are a bunch of constitutional provisions.</v>

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One is Confrontation Clause,

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which is open in which is a yes or no.

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But then we proceed to the due process issue.

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'Cause if it violates the Confrontation Clause

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it violates the Confrontation Clause,

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but don't worry if we proceed to the due process issue,

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is that when we take into account the willingness

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of a defendant to waive

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in balance to the government's interest.

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<v ->Wait, to waive a speedy trial rate?</v>

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<v Frank Gaziano>Right.</v>

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<v ->Yes, exactly and this is the point</v>

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that I was alluding to.

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I don't think it's fair for the government to assert

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an interest in public safety and health.

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When Mr. Vazquez Diaz,

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isn't asking for a hearing that would,

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cause any danger in those respects

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because he's willing to wait.

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And so I think they're left with two interests.

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The first that they identify

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is the growing backlog of cases.

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And on that score,

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I wanna say first that,

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Mr. Vazquez Diaz is not responsible for that backlog

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and we shouldn't seek to solve that systemic problem

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on the backs of incarcerated indigent criminal defendants.

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But the second thing is that the whole thing we're hearing

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in this case on a motion to suppress is not going to do much

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to clear that backlog,

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the Commonwealth cites the JMAC Report and it's brief,

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but on page six of the JMAC Report,

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they make it clear that the thing causing

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the backlog is the fact that we can't have jury trials.

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And that the backlog is gonna continue to grow

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until we can have jury trials,

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that's what's really clogging up the system here,

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the amicus brief which I would commend

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to the court's attention for many reasons.

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But one of one thing that they say

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that I think is helpful here,

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is they know evidence that only about 4 to 5%

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of criminal cases even involve a suppression hearing.

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So it's gonna do very little,

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even if this court were to say,

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everybody's gotta get on Zoom and do it on Zoom,

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it would do very little to solve the backlog problem-

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<v ->Can you waive the constitutional right</v>

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that could be Wingo constitutional right to a speedy trial?.

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<v ->I am not aware of any reason that the defendant</v>

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can't waive any of his constitutional rights.

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Defendants routinely waive their right to a trial.

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So I think-

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<v ->Normally just treated like a continuance.</v>

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You you've requested a continuance.

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So we just deduct the time from the-

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<v ->Sure, I think that's right under the Rule 36 calculation</v>

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at this time,

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you cannot count against the Commonwealth-

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<v ->Can I ask about the practicalities if you have a right</v>

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to confrontation here,

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so we haven't decided

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whether you have a confrontation right.

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<v ->That's right.</v>

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<v ->For motions to suppress,</v>

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for often as leaves that open.

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So how would it work?

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How would hearsay

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if the right to confrontation applies here,

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how do we analyze hearsay?

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What type of hearsay is gonna be permissible?

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If we agree with you

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that the right to confrontation applies here,

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I'd like to understand the practicalities of-

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<v ->I think that everybody has been proceeding</v>

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on the assumption that the right to confrontation

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applies at a suppression hearing.

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And I understand that that is an open question

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as the court said, and Fontanes is.

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But I don't think it would change anything about the way

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that we currently practice.

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I think the dramatic change would come

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if the court endorsed almost view that there is no-

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<v ->How would hearsay?</v>

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Cause hearsay is a big part of motions to suppress.

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<v ->I think hearsay has permitted motions to suppress</v>

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to the extent that the testifying officers were permitted

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to rely on hearsay,

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to reach their probable cause

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or reasonable suspicion determinations.

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And we don't dispute that can continue to be true.

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If the police see what they think

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is a hand-to-hand transaction and the buyer tells him,

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I bought the drugs from that guy,

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the officer can testify to that at the hearing.

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And it's not a constitutional confrontation problem

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because he can be cross-examined about it.

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But with the Commonwealth is suggesting,

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is a regime where,

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and I know they're saying they wouldn't do this,

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but that's kind of called comfort here.

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They're suggesting a regime where there's no fight at all-

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<v ->What about the informants</v>

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and the other stuff that appears

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in the warrants all the time.

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<v ->We're not talking about...</v>

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We're talking about an evidentiary with witness testimony,

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which is not a search warrant hearing.

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I don't think there would be a problem

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with having a four corners hearing

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on a search warrant on the sufficiency

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of a search warrant affidavit.

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<v ->Would you agree</v>

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if you had a search warrant case

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rather than an evidentiary hearing case,

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you would have no trouble

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with the oral argument part

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of the motion being held on Zoom?

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Is that right?

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<v ->I would agree with that.</v>

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Yes, and in fact,

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if the judge in this case wanted to bifurcate the,

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the argument portion of the hearing

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from the testimonial card and do the argument part on Zoom,

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I don't think we would object to that either.

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I would prefer to be in court in front of you while right

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now it's a little harder to read the room this way,

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but it's not...

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I think it's for this purpose.

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<v ->We all recognize...</v>

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Go ahead-

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<v ->Can I ask one other question</v>

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about what we're comparing to,

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because your brief compares,

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the Zoom hearing to trials

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in the old days when we don't,

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we have now, if we're in court,

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we've got mask, we've got distancing.

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I'm not sure Zoom

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is worse by comparison to the current courtroom setup,

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as it is in your,

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you're comparing to the old days.

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We're not in those old days anymore.

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What do we compare when we do determine

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whether there's a violation court as it is now

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or court as it was before COVID?

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<v ->I think it's fair to compare it to what would happen</v>

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if we were in court,

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but I'm not sure.

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I don't know that the fact

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that participants will be wearing masks

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is going to make such a substantial difference

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as compared to-

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<v ->Oh, can I stop you there, counsel?</v>

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I mean, it,

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of course it would make a difference because you wouldn't be

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able to see facial expressions,

266
00:10:45.130 --> 00:10:47.810
which I thought was part of your analysis

267
00:10:47.810 --> 00:10:49.410
on why Zoom is inefficient.

268
00:10:49.410 --> 00:10:50.243
<v ->Sorry, yes.</v>

269
00:10:50.243 --> 00:10:52.230
I think if the judge is wearing a mask

270
00:10:52.230 --> 00:10:54.490
or the defendant is wearing a mask,

271
00:10:54.490 --> 00:10:56.780
I'm not sure that that makes a huge difference-

272
00:10:56.780 --> 00:10:58.260
<v ->Let's put them in a stand the witness</v>

273
00:10:58.260 --> 00:11:01.763
as would be required will that make any difference?

274
00:11:02.640 --> 00:11:04.070
<v ->My understanding from the JMAC Report</v>

275
00:11:04.070 --> 00:11:06.090
is that the recommendation is that the witness,

276
00:11:06.090 --> 00:11:09.470
while testifying be sort of extra distance

277
00:11:09.470 --> 00:11:10.950
from the other participants

278
00:11:10.950 --> 00:11:12.890
with an air filter next to them so that they

279
00:11:12.890 --> 00:11:15.437
can take the mask off when they testify.

280
00:11:15.437 --> 00:11:18.960
But I think it's important to understand

281
00:11:18.960 --> 00:11:21.250
that looking at thumbnail images

282
00:11:21.250 --> 00:11:23.810
on a screen and possibly a screen this size,

283
00:11:23.810 --> 00:11:25.460
right, the defendant is in Nashua Street.

284
00:11:25.460 --> 00:11:26.980
So he's gonna get a laptop,

285
00:11:26.980 --> 00:11:28.090
but if you were to bail out,

286
00:11:28.090 --> 00:11:31.580
he would participate in his evidentiary hearing

287
00:11:31.580 --> 00:11:35.186
on a critical motion to suppress evidence on a smartphone.

288
00:11:35.186 --> 00:11:37.440
And the idea that can in any way,

289
00:11:37.440 --> 00:11:39.520
approximate and in court hearing,

290
00:11:39.520 --> 00:11:42.940
I think just sort of defies common sense-

291
00:11:42.940 --> 00:11:44.530
<v ->Wait can I push you on that?</v>

292
00:11:44.530 --> 00:11:46.610
Because you've said that several times in your brief,

293
00:11:46.610 --> 00:11:48.210
and I wanna know why,

294
00:11:48.210 --> 00:11:51.680
what defies common sense about the concept that on a laptop

295
00:11:51.680 --> 00:11:53.110
from a jail house,

296
00:11:53.110 --> 00:11:55.030
the defendant is not given something

297
00:11:55.030 --> 00:11:56.673
that approximates a courtroom?

298
00:11:58.920 --> 00:12:00.850
<v ->I think there are several responses,</v>

299
00:12:00.850 --> 00:12:03.880
so I'll try to go through them with the remaining time.

300
00:12:03.880 --> 00:12:04.890
But for one thing,

301
00:12:04.890 --> 00:12:06.020
I think the gravitas and solemnity

302
00:12:06.020 --> 00:12:07.830
of the proceedings is last.

303
00:12:07.830 --> 00:12:12.010
When it happens you could imagine a witness who's sitting

304
00:12:12.010 --> 00:12:13.170
in the comfort of their own home,

305
00:12:13.170 --> 00:12:14.290
perhaps on their couch,

306
00:12:14.290 --> 00:12:16.490
on their phone offering testimony.

307
00:12:16.490 --> 00:12:19.810
I think that feels very different than being in a courtroom

308
00:12:19.810 --> 00:12:22.780
next to a judge in the witness chair.

309
00:12:22.780 --> 00:12:24.020
But it also...

310
00:12:25.250 --> 00:12:27.020
And of course the defendant's ability

311
00:12:27.020 --> 00:12:28.320
as he watches the proceedings

312
00:12:28.320 --> 00:12:32.300
to actually discern reactions is much different.

313
00:12:32.300 --> 00:12:35.120
If he's looking at what we call a thumbnail image,

314
00:12:35.120 --> 00:12:36.830
as opposed to a live person in front of him,

315
00:12:36.830 --> 00:12:39.810
where you can perceive the fidgeting and the nervous ticks

316
00:12:39.810 --> 00:12:40.840
and the facial expressions

317
00:12:40.840 --> 00:12:43.367
in a way that I just don't think you can on Zoom.

318
00:12:43.367 --> 00:12:45.253
<v ->But why not?</v>

319
00:12:46.627 --> 00:12:47.977
I guess that's my question,

320
00:12:48.920 --> 00:12:50.140
are these things in your brief,

321
00:12:50.140 --> 00:12:54.640
but I don't know that there is a basis for that.

322
00:12:54.640 --> 00:12:58.010
I can tell right now,

323
00:12:58.010 --> 00:12:59.120
who is moving,

324
00:12:59.120 --> 00:13:00.270
what the fidgeting is,

325
00:13:00.270 --> 00:13:02.060
your facial expressions.

326
00:13:02.060 --> 00:13:04.050
Why is that not enough?

327
00:13:04.050 --> 00:13:06.440
Why doesn't it sufficiently approximate given

328
00:13:06.440 --> 00:13:08.463
the pandemic nature of what we're at?

329
00:13:11.086 --> 00:13:11.919
<v ->First of all,</v>

330
00:13:11.919 --> 00:13:13.100
I think when it comes to the confrontation right

331
00:13:13.100 --> 00:13:14.590
approximation is not sufficient,

332
00:13:14.590 --> 00:13:15.830
but you can't tell if-

333
00:13:15.830 --> 00:13:17.743
<v ->Decided the confrontation right yet.</v>

334
00:13:18.750 --> 00:13:20.120
<v ->But if I could just go back</v>

335
00:13:20.120 --> 00:13:21.330
to the difference between Zoom,

336
00:13:21.330 --> 00:13:23.720
you can't tell if I'm tapping my toes right now,

337
00:13:23.720 --> 00:13:25.810
you don't know if I'm twiddling my pencil

338
00:13:25.810 --> 00:13:28.190
or fiddling my thumbs and you would,

339
00:13:28.190 --> 00:13:30.050
if we were in court-

340
00:13:30.050 --> 00:13:32.170
<v ->In the constitution requires</v>

341
00:13:32.170 --> 00:13:34.000
that I see you're tapping, your toe.

342
00:13:34.000 --> 00:13:35.210
<v ->I'm just saying that you don't have</v>

343
00:13:35.210 --> 00:13:36.660
the same opportunity to observe

344
00:13:36.660 --> 00:13:37.847
the witness's demeanor as you would-

345
00:13:37.847 --> 00:13:40.370
<v ->But you just said that all of these constitutional rights</v>

346
00:13:40.370 --> 00:13:41.440
are not absolute.

347
00:13:41.440 --> 00:13:44.810
So I'm wondering what part of the constitution requires

348
00:13:44.810 --> 00:13:45.833
the tapping toe.

349
00:13:47.060 --> 00:13:49.540
<v ->So this court recognized this problem</v>

350
00:13:49.540 --> 00:13:51.380
with respect to the confrontation problem

351
00:13:51.380 --> 00:13:52.213
in Bergstrom.

352
00:13:52.213 --> 00:13:55.233
And I think the key issue here is that,

353
00:13:56.910 --> 00:13:58.550
and again, I'm assuming now,

354
00:13:58.550 --> 00:14:00.060
and I hope that the court is going to decide

355
00:14:00.060 --> 00:14:01.300
the Article 12 Confrontation Right

356
00:14:01.300 --> 00:14:03.570
applies as I talk about this.

357
00:14:03.570 --> 00:14:05.290
but our Article 12 Confrontation Right,

358
00:14:05.290 --> 00:14:07.930
guarantees the right to face-to-face confrontation.

359
00:14:07.930 --> 00:14:09.990
And that is because there is a deeply held belief

360
00:14:09.990 --> 00:14:11.040
that it is more difficult

361
00:14:11.040 --> 00:14:13.410
to lie when you're facing the person you're accusing.

362
00:14:13.410 --> 00:14:15.410
That's particularly true in a suppression hearing

363
00:14:15.410 --> 00:14:18.040
where the defendant is a percipient witness to the events.

364
00:14:18.040 --> 00:14:19.080
And the witness knows,

365
00:14:19.080 --> 00:14:20.750
if I tell a lie about this,

366
00:14:20.750 --> 00:14:23.270
the person in front of me is going to know it.

367
00:14:23.270 --> 00:14:25.190
That's very different and there's no proceeding

368
00:14:25.190 --> 00:14:28.000
where the witness never has to look at the defendant,

369
00:14:28.000 --> 00:14:29.700
where we can't make eye contact.

370
00:14:29.700 --> 00:14:31.490
I am looking at my webcam right now.

371
00:14:31.490 --> 00:14:33.240
And I'm trying to convey to you the impression

372
00:14:33.240 --> 00:14:34.470
that I'm looking at you,

373
00:14:34.470 --> 00:14:36.410
but in fact, I'm not looking at any of you

374
00:14:36.410 --> 00:14:37.330
and I don't have to,

375
00:14:37.330 --> 00:14:38.540
I can do this whole argument

376
00:14:38.540 --> 00:14:40.430
without looking at any of your faces.

377
00:14:40.430 --> 00:14:43.040
And what our courts have said with the appeals court.

378
00:14:43.040 --> 00:14:46.030
I think it said rather eloquently is that any proceeding

379
00:14:46.030 --> 00:14:49.120
that allows a witness to testify naturally and comfortably

380
00:14:49.120 --> 00:14:51.510
without ever looking at the defendant

381
00:14:51.510 --> 00:14:54.000
and without the fact-finder having any idea

382
00:14:54.000 --> 00:14:55.310
that they're not looking at the defendant,

383
00:14:55.310 --> 00:14:56.730
which is true in Zoom,

384
00:14:56.730 --> 00:14:59.670
that just doesn't suffice.

385
00:14:59.670 --> 00:15:00.830
Another constitutional issue,

386
00:15:00.830 --> 00:15:04.900
I think is the impaired communication between client

387
00:15:04.900 --> 00:15:06.840
and attorney during a hearing.

388
00:15:06.840 --> 00:15:08.430
And this is especially critical again,

389
00:15:08.430 --> 00:15:10.577
because the defendant is a percipient witness-

390
00:15:10.577 --> 00:15:13.550
<v ->Let me push you on that one,</v>

391
00:15:13.550 --> 00:15:14.700
'cause again,

392
00:15:14.700 --> 00:15:17.073
the new world versus the old world,

393
00:15:18.020 --> 00:15:20.240
right now in the new world,

394
00:15:20.240 --> 00:15:22.543
you're not sitting next to your client.

395
00:15:24.322 --> 00:15:26.060
<v ->Actually, that's not what I've heard.</v>

396
00:15:26.060 --> 00:15:27.600
The reports that I've heard from trial attorneys

397
00:15:27.600 --> 00:15:29.840
is that they are sitting next to their clients,

398
00:15:29.840 --> 00:15:33.500
their maps class on the table between them,

399
00:15:33.500 --> 00:15:34.333
but that's-

400
00:15:34.333 --> 00:15:35.170
<v ->You pending a lot of time trying</v>

401
00:15:35.170 --> 00:15:38.220
to get this technology that the federal courts have,

402
00:15:38.220 --> 00:15:40.190
which allow these kinds of,

403
00:15:40.190 --> 00:15:44.710
sort of conversations between the defendant

404
00:15:44.710 --> 00:15:45.543
and defense counsel.

405
00:15:45.543 --> 00:15:47.550
But you're telling me basically in the real world,

406
00:15:47.550 --> 00:15:49.140
we're actually sitting next to each other.

407
00:15:49.140 --> 00:15:50.948
So, okay.

408
00:15:50.948 --> 00:15:52.560
<v ->But along those lines,</v>

409
00:15:52.560 --> 00:15:53.570
just as camp commander,

410
00:15:53.570 --> 00:15:56.120
up for a minute with Attorney Kiley,

411
00:15:56.120 --> 00:16:00.110
do you agree with the fact findings or the descriptions,

412
00:16:00.110 --> 00:16:01.470
not the legal conclusions,

413
00:16:01.470 --> 00:16:03.910
but the findings that the Judge Haimes made

414
00:16:03.910 --> 00:16:07.193
with regard to how that Zoom system worked for the hearing?

415
00:16:09.530 --> 00:16:11.010
<v ->I'm not sure that...</v>

416
00:16:12.123 --> 00:16:13.420
I think it's true that there were no

417
00:16:13.420 --> 00:16:17.163
obvious technical gas during that hearing.

418
00:16:18.570 --> 00:16:21.470
I take some issue with Judge Haimes conclusion

419
00:16:21.470 --> 00:16:24.100
that she could tell that the defendant was understanding

420
00:16:24.100 --> 00:16:25.370
the proceedings because I'm not sure-

421
00:16:25.370 --> 00:16:28.250
<v ->Well, putting aside her conclusions,</v>

422
00:16:28.250 --> 00:16:30.670
just her description of the hearing,

423
00:16:30.670 --> 00:16:33.180
her description of how Zoom worked,

424
00:16:33.180 --> 00:16:36.280
anything wrong with how she described all that.

425
00:16:36.280 --> 00:16:37.793
<v ->Well, I think that she,</v>

426
00:16:38.930 --> 00:16:41.893
I think that she failed to recognize the problems

427
00:16:41.893 --> 00:16:43.700
that I just talked about the eye-to-eye contact and-

428
00:16:43.700 --> 00:16:44.533
<v ->Right, and again,</v>

429
00:16:44.533 --> 00:16:46.770
I'm just talking about the mechanics basically.

430
00:16:46.770 --> 00:16:47.870
Did she get the mechanics right?

431
00:16:47.870 --> 00:16:48.770
<v ->Well, right.</v>

432
00:16:48.770 --> 00:16:51.570
Sorry, I guess I've regarded that as a mechanical issue,

433
00:16:52.670 --> 00:16:55.160
the limitations of Zoom in terms of eye contact.

434
00:16:55.160 --> 00:16:59.673
I, right now, nothing is coming to mind as a particular,

435
00:17:00.930 --> 00:17:02.118
as a particular.

436
00:17:02.118 --> 00:17:05.440
<v ->But I get back to the communications with counsel,</v>

437
00:17:05.440 --> 00:17:10.220
because that is without doubt a critically important issue.

438
00:17:10.220 --> 00:17:12.720
But when we think about to process

439
00:17:14.250 --> 00:17:15.630
and the flexibility of it,

440
00:17:15.630 --> 00:17:19.120
we look at Abbott A for instance,

441
00:17:19.120 --> 00:17:23.390
in Abbott A it's a 58 hearing

442
00:17:23.390 --> 00:17:28.390
the defendant is incompetent by definition,

443
00:17:28.490 --> 00:17:33.490
the defendant can't have a meaningful dialogue with console,

444
00:17:34.700 --> 00:17:38.730
and yet we find there's no due process violation.

445
00:17:38.730 --> 00:17:42.390
So this is not to dismiss the importance

446
00:17:42.390 --> 00:17:44.760
of that communication, it's critical.

447
00:17:44.760 --> 00:17:49.760
It's to make the point that we have to recognize the world

448
00:17:50.290 --> 00:17:53.393
we're in and there are really no absolute.

449
00:17:55.900 --> 00:17:56.733
<v ->And again,</v>

450
00:17:56.733 --> 00:17:59.920
I think that what he's asking for here is fairly modest,

451
00:17:59.920 --> 00:18:01.930
He'd just like to wait until it's safe to do this.

452
00:18:01.930 --> 00:18:03.380
And he's the one who is sitting in jail,

453
00:18:03.380 --> 00:18:04.673
waiting for that-

454
00:18:04.673 --> 00:18:07.090
<v ->Feel about the other governmental interests.</v>

455
00:18:07.090 --> 00:18:09.910
Do you recognize that there's a governmental interest

456
00:18:09.910 --> 00:18:11.630
that the Commonwealth might have

457
00:18:11.630 --> 00:18:15.160
in having the cases proceed in the system?

458
00:18:15.160 --> 00:18:16.440
I know you say it's 4%,

459
00:18:16.440 --> 00:18:20.312
but if someone's family member was murdered,

460
00:18:20.312 --> 00:18:22.070
there was an article in the Herald,

461
00:18:22.070 --> 00:18:24.290
I think yesterday about a family member who was waiting

462
00:18:24.290 --> 00:18:26.000
for a murder trial,

463
00:18:26.000 --> 00:18:26.833
isn't that a government

464
00:18:26.833 --> 00:18:29.670
that Winchester should take into account.

465
00:18:29.670 --> 00:18:31.880
<v ->I agree that the government has an interest</v>

466
00:18:31.880 --> 00:18:34.900
in moving the case along and the comp and other,

467
00:18:34.900 --> 00:18:36.810
I think it's important to note

468
00:18:36.810 --> 00:18:39.070
we could have this hearing by Zoom tomorrow,

469
00:18:39.070 --> 00:18:40.720
and he's still not gonna have a jury trial

470
00:18:40.720 --> 00:18:43.610
until this point we're saying January,

471
00:18:43.610 --> 00:18:44.443
but who knows?

472
00:18:45.348 --> 00:18:47.520
But I think the other thing that's worth noting here

473
00:18:47.520 --> 00:18:50.280
is that the government has suggested that there,

474
00:18:50.280 --> 00:18:51.450
that they need to move their cases

475
00:18:51.450 --> 00:18:53.290
forward because they can deteriorate,

476
00:18:53.290 --> 00:18:55.470
but they haven't articulated any reason

477
00:18:55.470 --> 00:18:58.190
to expect that's gonna happen in this case anytime soon,

478
00:18:58.190 --> 00:18:59.950
they're witnesses are police witnesses,

479
00:18:59.950 --> 00:19:01.590
they have custody of the physical activity-

480
00:19:01.590 --> 00:19:04.160
<v ->That again, I know you represent Mr. Diaz.</v>

481
00:19:04.160 --> 00:19:06.768
We have to think about this rule as applied

482
00:19:06.768 --> 00:19:08.367
to every Mr. Diaz, correct.

483
00:19:08.367 --> 00:19:11.030
<v ->Right, and that's where I think</v>

484
00:19:11.030 --> 00:19:13.280
it's not gonna do much for the backlog

485
00:19:14.314 --> 00:19:15.510
because as I suggested,

486
00:19:15.510 --> 00:19:17.650
it's only four to 5% of cases also,

487
00:19:17.650 --> 00:19:19.450
because as we noted in our brief,

488
00:19:19.450 --> 00:19:21.180
a lot of these hearings did take place

489
00:19:21.180 --> 00:19:23.613
in the last few months in person-

490
00:19:25.389 --> 00:19:26.222
<v ->Let me ask you something,</v>

491
00:19:26.222 --> 00:19:28.793
the CPCS telling their attorneys not to agree to this,

492
00:19:28.793 --> 00:19:31.260
there's a rule that's coming out of your office,

493
00:19:31.260 --> 00:19:33.710
or is this something left to the individual attorney

494
00:19:33.710 --> 00:19:34.850
into a client.

495
00:19:34.850 --> 00:19:36.490
<v ->The individual attorney and their client.</v>

496
00:19:36.490 --> 00:19:37.360
Because there are cases,

497
00:19:37.360 --> 00:19:39.290
I think, particularly cases where the key issue

498
00:19:39.290 --> 00:19:41.160
is not gonna be a witness credibility

499
00:19:41.160 --> 00:19:43.760
where defendant might really wanna get is the,

500
00:19:43.760 --> 00:19:45.120
get his hearing as soon as possible

501
00:19:45.120 --> 00:19:46.140
and be willing to do it by-

502
00:19:46.140 --> 00:19:48.520
<v ->Well, CPCS has certain performance standards</v>

503
00:19:48.520 --> 00:19:50.092
that it's staff attorneys

504
00:19:50.092 --> 00:19:52.210
and people that take appointed cases have

505
00:19:52.210 --> 00:19:54.153
to comply with is this one of them?

506
00:19:55.810 --> 00:19:57.690
<v ->They have to object to a Zoom hearing?</v>

507
00:19:57.690 --> 00:19:58.523
<v Frank Gaziano>Right?</v>

508
00:19:58.523 --> 00:19:59.356
No, and again,

509
00:19:59.356 --> 00:20:01.630
because you have to decide it based on the individual

510
00:20:01.630 --> 00:20:03.910
interest of the client and some clients,

511
00:20:03.910 --> 00:20:04.900
even if you have a case

512
00:20:04.900 --> 00:20:06.810
where it's really just gonna be a legal issue,

513
00:20:06.810 --> 00:20:09.210
everybody agrees that the police did what they say they did.

514
00:20:09.210 --> 00:20:11.900
We're just deciding was that legal or not?

515
00:20:11.900 --> 00:20:14.230
You may well want to have that argument on Zoom,

516
00:20:14.230 --> 00:20:17.230
but when the issue is credibility and the fact-finder,

517
00:20:17.230 --> 00:20:20.830
can't be in the courtroom with the witness.

518
00:20:20.830 --> 00:20:23.320
That's when I think we run into this real challenge.

519
00:20:23.320 --> 00:20:26.580
And that's why Mr. Vazquez Diaz wants his day in court-

520
00:20:26.580 --> 00:20:29.430
<v ->But do you knowledge, is there a uniform policy or not?</v>

521
00:20:30.840 --> 00:20:31.673
<v ->No.</v>

522
00:20:31.673 --> 00:20:33.360
The policy is always to do what's in the best interest

523
00:20:33.360 --> 00:20:34.193
of the client.

524
00:20:34.193 --> 00:20:36.020
I think the policy that there is,

525
00:20:36.020 --> 00:20:36.960
and I don't mean the details

526
00:20:36.960 --> 00:20:38.660
of this is that if you have a client who wants

527
00:20:38.660 --> 00:20:39.540
an in-court proceeding

528
00:20:39.540 --> 00:20:41.540
and the lawyer is not comfortable with that,

529
00:20:41.540 --> 00:20:42.600
then I think they have to try

530
00:20:42.600 --> 00:20:46.110
to find that client a different lawyer so that,

531
00:20:46.110 --> 00:20:49.430
that the client can have their interest vindicated.

532
00:20:49.430 --> 00:20:52.710
But if the client wants to have a Zoom hearing,

533
00:20:52.710 --> 00:20:55.640
then by all means that can happen.

534
00:20:55.640 --> 00:20:57.230
And that's one other way that we might deal

535
00:20:57.230 --> 00:20:59.930
with this backlog is to try to identify those cases.

536
00:20:59.930 --> 00:21:02.017
What are the cases where everybody is okay with just saying

537
00:21:02.017 --> 00:21:04.000
"Like, let's go ahead and do this by Zoom,"

538
00:21:04.000 --> 00:21:05.454
and let's start with those.

539
00:21:05.454 --> 00:21:08.040
<v ->Can I ask you a variation on a question Justice Casiano</v>

540
00:21:08.040 --> 00:21:10.166
asked and he may have been,

541
00:21:10.166 --> 00:21:15.070
how do we deal with this in the context of sort of release

542
00:21:15.070 --> 00:21:17.830
from jail pending trial.

543
00:21:17.830 --> 00:21:19.433
Now we've got people,

544
00:21:20.587 --> 00:21:22.373
your client's incarcerated.

545
00:21:24.400 --> 00:21:27.010
We're trying to move this case on, we're not,

546
00:21:27.010 --> 00:21:29.470
the Commonwealth is trying to move the case along,

547
00:21:29.470 --> 00:21:32.343
but your client wants this in-person hearing.

548
00:21:33.270 --> 00:21:36.660
How does this play out in a request to be,

549
00:21:36.660 --> 00:21:38.710
what out of jail at this point,

550
00:21:38.710 --> 00:21:40.100
how does that work?

551
00:21:40.100 --> 00:21:41.563
Do we take that into account at all?

552
00:21:41.563 --> 00:21:43.363
Does it have any role?

553
00:21:45.030 --> 00:21:48.530
<v ->I think, and I may be thinking of a single desk disorder,</v>

554
00:21:48.530 --> 00:21:51.780
but I think it would be fair to argue that,

555
00:21:51.780 --> 00:21:53.750
the delays occasioned by the pandemic

556
00:21:53.750 --> 00:21:55.760
or a changed circumstance that-

557
00:21:55.760 --> 00:21:57.560
<v ->But I understand that,</v>

558
00:21:57.560 --> 00:22:00.370
but so the Commonwealth is trying to move the case along

559
00:22:01.420 --> 00:22:03.310
through this alternative procedure,

560
00:22:03.310 --> 00:22:05.980
but your client is comfortable with the delay

561
00:22:05.980 --> 00:22:08.570
in terms of speedy trial,

562
00:22:08.570 --> 00:22:13.450
but say the coin is also pushing the single justice session

563
00:22:13.450 --> 00:22:17.590
to be let out your client's being held on $25,000 bail

564
00:22:17.590 --> 00:22:18.440
or something to that effect.

565
00:22:18.440 --> 00:22:19.990
I can't remember.

566
00:22:19.990 --> 00:22:23.230
So say, I want the bail amount removed

567
00:22:23.230 --> 00:22:28.230
because there's not gonna be any proceeding anytime soon.

568
00:22:28.490 --> 00:22:30.363
Do we take this into account or no?

569
00:22:33.930 --> 00:22:37.672
<v ->Well, I take into account that he's-</v>

570
00:22:37.672 --> 00:22:39.190
<v ->Well he's,</v>

571
00:22:39.190 --> 00:22:41.490
well, I guess it's the,

572
00:22:41.490 --> 00:22:44.950
how do you balance all these different competing rights

573
00:22:44.950 --> 00:22:45.783
and interest,

574
00:22:45.783 --> 00:22:50.290
including we've got court officers who are gonna be right

575
00:22:50.290 --> 00:22:52.371
next to the defendant.

576
00:22:52.371 --> 00:22:54.720
We've got other prisoners in jail.

577
00:22:54.720 --> 00:22:59.020
If the person wants an in-person hearing may be exposed

578
00:22:59.020 --> 00:23:00.760
to the court office.

579
00:23:00.760 --> 00:23:04.670
There's just a lot swirling around.

580
00:23:04.670 --> 00:23:06.860
And one of the things your client's gonna have

581
00:23:06.860 --> 00:23:09.340
an interest in is getting out of jail,

582
00:23:09.340 --> 00:23:11.530
pending final resolution of this.

583
00:23:11.530 --> 00:23:16.483
How do we take this issue into account in that calculation?

584
00:23:18.410 --> 00:23:19.243
<v ->Well, again,</v>

585
00:23:19.243 --> 00:23:21.100
he doesn't wanna have the hearing until it's safe,

586
00:23:21.100 --> 00:23:23.000
so he doesn't want to expose court officers

587
00:23:23.000 --> 00:23:24.770
or other inmates.

588
00:23:24.770 --> 00:23:27.320
I suppose that a judge...

589
00:23:27.320 --> 00:23:30.080
I guess if he moves again to lower his bail,

590
00:23:30.080 --> 00:23:32.050
because of the changed circumstance that he hasn't been able

591
00:23:32.050 --> 00:23:34.200
to move the case along,

592
00:23:34.200 --> 00:23:35.297
I guess a judge could say,

593
00:23:35.297 --> 00:23:37.957
"Well, you refused a Zoom hearing, so that's your fault.

594
00:23:37.957 --> 00:23:39.573
"And I'm not going to..."

595
00:23:40.410 --> 00:23:42.453
I would certainly argue against that,

596
00:23:43.300 --> 00:23:44.550
if that happened in part,

597
00:23:44.550 --> 00:23:45.640
because again,

598
00:23:45.640 --> 00:23:47.890
the real backlog here is that the fact that we can't have

599
00:23:47.890 --> 00:23:50.000
jury trials and that's going to be true,

600
00:23:50.000 --> 00:23:51.993
even if he submits to a Zoom hearing.

601
00:23:54.100 --> 00:23:55.790
Yes, I think the longer that the pandemic goes

602
00:23:55.790 --> 00:23:56.623
on the stronger,

603
00:23:56.623 --> 00:23:59.830
the argument becomes that it's a changed circumstance

604
00:23:59.830 --> 00:24:01.180
for bail considerations,

605
00:24:01.180 --> 00:24:02.670
but that's not really...

606
00:24:02.670 --> 00:24:05.810
I don't think directly presented by this case.

607
00:24:05.810 --> 00:24:07.240
And I know I'm over my time,

608
00:24:07.240 --> 00:24:11.140
but I would like to just spend a minute explaining

609
00:24:11.140 --> 00:24:13.947
the importance of the suppression hearing in general,

610
00:24:13.947 --> 00:24:15.583
because I think this is-

611
00:24:16.830 --> 00:24:18.080
<v ->Not everybody...</v>

612
00:24:18.080 --> 00:24:22.140
We understand the importance that your client places

613
00:24:22.140 --> 00:24:24.100
on the suppression hearing.

614
00:24:24.100 --> 00:24:29.100
And so please rest assured that we get that past time.

615
00:24:30.640 --> 00:24:35.083
So I'm gonna ask Ms. Campbell to present.

616
00:24:36.970 --> 00:24:37.803
<v ->Thank you your honor.</v>

617
00:24:37.803 --> 00:24:38.636
Good morning.

618
00:24:38.636 --> 00:24:40.120
And may it please the court Caillin Campbell

619
00:24:40.120 --> 00:24:41.510
on behalf of the Commonwealth.

620
00:24:41.510 --> 00:24:44.000
I first like to start by acknowledging Kathleen Celio,

621
00:24:44.000 --> 00:24:46.530
the motion prosecutor in this case and Chino Sullivan,

622
00:24:46.530 --> 00:24:48.720
who helped me to write this brief.

623
00:24:48.720 --> 00:24:49.810
On March 19th,

624
00:24:49.810 --> 00:24:50.930
elite chief justice,

625
00:24:50.930 --> 00:24:53.620
wrote a letter to the bar and asked us to work together.

626
00:24:53.620 --> 00:24:55.977
And I quote, "To find new ways to protect

627
00:24:55.977 --> 00:24:58.617
"the most vulnerable preserve individual lights,

628
00:24:58.617 --> 00:25:01.130
"resolve disputes, and somehow keep the wheels

629
00:25:01.130 --> 00:25:04.117
of justice turning during this frightening pandemic.

630
00:25:04.117 --> 00:25:06.557
"Conducting pretrial criminal motions virtually

631
00:25:06.557 --> 00:25:07.847
"is one of these new ways

632
00:25:07.847 --> 00:25:09.367
"and something that must be done

633
00:25:09.367 --> 00:25:11.717
"to keep the wheels of justice turning

634
00:25:11.717 --> 00:25:14.937
"despite an ever increasing number of COVID cases.

635
00:25:14.937 --> 00:25:15.828
"Indeed, as the trial court recognized

636
00:25:15.828 --> 00:25:17.980
"just this past Friday,

637
00:25:17.980 --> 00:25:20.947
'additional measures have to be taken to limit in-person

638
00:25:20.947 --> 00:25:24.557
"court appearances and do what we all can to stop the spread

639
00:25:24.557 --> 00:25:26.187
"of COVID-19.

640
00:25:26.187 --> 00:25:27.337
"Cases from this court,

641
00:25:27.337 --> 00:25:29.657
"including the Bergstrom case have recognized

642
00:25:29.657 --> 00:25:33.127
"that traditional formalities of court are not necessarily

643
00:25:33.127 --> 00:25:36.617
"an integral part of protected constitutional rights,

644
00:25:36.617 --> 00:25:37.510
"and a virtual hearing over Zoom

645
00:25:37.510 --> 00:25:40.137
"protects the core guarantees

646
00:25:40.137 --> 00:25:40.970
"of each of the constitutional violations

647
00:25:40.970 --> 00:25:44.222
"the defendant claims-"

648
00:25:44.222 --> 00:25:48.450
<v ->Before we go forward further with that,</v>

649
00:25:48.450 --> 00:25:53.060
doesn't it make a difference when the defendant says

650
00:25:53.060 --> 00:25:55.040
that he's willing to wait,

651
00:25:55.040 --> 00:25:56.850
he's okay with not having

652
00:25:57.861 --> 00:26:01.520
his day in court with regard to the suppression hearing

653
00:26:01.520 --> 00:26:03.740
until everyone feels safe,

654
00:26:03.740 --> 00:26:05.400
including himself.

655
00:26:05.400 --> 00:26:06.310
<v ->I don't believe so.</v>

656
00:26:06.310 --> 00:26:08.450
And I don't believe so because I think that gets

657
00:26:08.450 --> 00:26:11.430
to the Matthew's due process type of balancing,

658
00:26:11.430 --> 00:26:14.200
and sure that is an interest of the defendant

659
00:26:14.200 --> 00:26:19.200
before I actually get into the due process balancing answer.

660
00:26:19.520 --> 00:26:20.760
I think that though,

661
00:26:20.760 --> 00:26:23.700
that may be a waiver in terms of one that doesn't protect us

662
00:26:23.700 --> 00:26:26.600
against a later ineffective assistance of counsel claim down

663
00:26:26.600 --> 00:26:27.477
the line that says,

664
00:26:27.477 --> 00:26:28.917
"Hey, my counsel didn't tell me

665
00:26:28.917 --> 00:26:30.727
"that I could be sitting in jail

666
00:26:30.727 --> 00:26:31.560
"for this long,

667
00:26:31.560 --> 00:26:32.487
"and that if I didn't have

668
00:26:32.487 --> 00:26:36.037
"my motion adjudicated at this day,

669
00:26:36.037 --> 00:26:36.990
"it meant that,"

670
00:26:36.990 --> 00:26:39.390
and this is what we've been told in Suffolk Superior Court.

671
00:26:39.390 --> 00:26:43.850
That the cases that have dispositive and important pretrial

672
00:26:43.850 --> 00:26:46.560
will be at the very back of the line for jury trials.

673
00:26:46.560 --> 00:26:48.800
Once jury trials set back up.

674
00:26:48.800 --> 00:26:51.190
So I hear you, but-

675
00:26:51.190 --> 00:26:52.530
<v ->It's not something that it could be worked</v>

676
00:26:52.530 --> 00:26:56.110
out though with the comprehensive waiver.

677
00:26:56.110 --> 00:26:59.580
I don't see that as being a bar to giving

678
00:26:59.580 --> 00:27:01.230
the defendant when he wants here.

679
00:27:02.370 --> 00:27:03.360
<v ->Well, it couldn't be a bar.</v>

680
00:27:03.360 --> 00:27:06.440
I think I would caution the court to consider

681
00:27:06.440 --> 00:27:09.770
that likelihood when crafting any rule that they craft.

682
00:27:09.770 --> 00:27:12.260
I also think that it doesn't take into account

683
00:27:12.260 --> 00:27:14.770
the substantial other interests that are at play,

684
00:27:14.770 --> 00:27:17.790
and it's not just the efficient administration of justice,

685
00:27:17.790 --> 00:27:20.940
which my sister points you solely as the Commonwealth

686
00:27:20.940 --> 00:27:22.810
interest in here

687
00:27:22.810 --> 00:27:23.990
we have a constitutional right.

688
00:27:23.990 --> 00:27:26.330
The Commonwealth has a constitutional right to move cases

689
00:27:26.330 --> 00:27:29.540
forward under constitutional speedy trial rights.

690
00:27:29.540 --> 00:27:30.730
And not only that,

691
00:27:30.730 --> 00:27:32.360
it's harder for the Commonwealth

692
00:27:32.360 --> 00:27:33.980
and the Commonwealth is prejudice.

693
00:27:33.980 --> 00:27:37.730
The older its case gets to prove it at prior to trial.

694
00:27:37.730 --> 00:27:38.563
But additionally,

695
00:27:38.563 --> 00:27:41.650
the victim's bill of rights ensures prompt disposition

696
00:27:41.650 --> 00:27:44.530
of criminal cases for cases involving victims.

697
00:27:44.530 --> 00:27:47.680
And there's also an interest in trying to ensure the safety

698
00:27:47.680 --> 00:27:50.410
of our community and that they see that dispositions

699
00:27:50.410 --> 00:27:51.783
of cases are happening-

700
00:27:51.783 --> 00:27:54.790
<v ->You lose unless we find</v>

701
00:27:54.790 --> 00:27:56.710
there's no Confrontation Clause Right.

702
00:27:56.710 --> 00:27:58.653
In a motion to suppress, correct?

703
00:27:59.490 --> 00:28:00.370
<v ->I don't believe so.</v>

704
00:28:00.370 --> 00:28:02.110
I don't think you have to go that far.

705
00:28:02.110 --> 00:28:02.960
I think you can find

706
00:28:02.960 --> 00:28:04.840
that there's a relaxed confrontation right

707
00:28:04.840 --> 00:28:05.873
under Article 12-

708
00:28:06.880 --> 00:28:08.270
<v ->How was that Article 12 relax.</v>

709
00:28:08.270 --> 00:28:09.920
Article 12 was more strict

710
00:28:09.920 --> 00:28:11.980
than the federal constitutional right.

711
00:28:11.980 --> 00:28:13.940
I know 'cause I lost Johnson.

712
00:28:13.940 --> 00:28:15.410
It's face-to-face.

713
00:28:15.410 --> 00:28:16.550
<v ->It is face to face</v>

714
00:28:16.550 --> 00:28:18.640
it's face-to-face every single case though,

715
00:28:18.640 --> 00:28:20.850
they talks about this face to face requirements says

716
00:28:20.850 --> 00:28:22.740
is face to face at trial.

717
00:28:22.740 --> 00:28:24.270
And there is no case-

718
00:28:24.270 --> 00:28:25.160
<v ->You're begging the question.</v>

719
00:28:25.160 --> 00:28:26.520
'Cause I said, that's where I started.

720
00:28:26.520 --> 00:28:30.480
If we find that the Confrontation Clause Right,

721
00:28:30.480 --> 00:28:32.860
does not apply to trials,

722
00:28:32.860 --> 00:28:35.660
then we can proceed to due process

723
00:28:35.660 --> 00:28:36.600
what you're addressing.

724
00:28:36.600 --> 00:28:38.675
But until we do that,

725
00:28:38.675 --> 00:28:41.573
you're kind of stuck with the Article 12 face to face.

726
00:28:42.976 --> 00:28:45.180
<v ->So I think Article 12 "face-to-face"</v>

727
00:28:45.180 --> 00:28:47.310
is really the hardest

728
00:28:47.310 --> 00:28:49.517
issue that has to be sort of undertaken in this case

729
00:28:49.517 --> 00:28:51.320
and the one that really needs to be dealt with.

730
00:28:51.320 --> 00:28:53.953
I agree at the outset with you, Justice Gaziano-

731
00:28:56.500 --> 00:28:58.860
<v ->It's you either have a Confrontation Clause Right</v>

732
00:28:58.860 --> 00:28:59.770
or you don't.

733
00:28:59.770 --> 00:29:02.534
And if you do have a Confrontation Clause Right

734
00:29:02.534 --> 00:29:04.720
you have a right to "face to face" on Article 12,

735
00:29:04.720 --> 00:29:05.553
correct?

736
00:29:05.553 --> 00:29:06.820
<v ->Well you, you have a right to face to face.</v>

737
00:29:06.820 --> 00:29:08.620
I think it depends on what the definition

738
00:29:08.620 --> 00:29:10.380
of face-to-face is.

739
00:29:10.380 --> 00:29:13.790
I disagree with my sister with a lot of the factual

740
00:29:13.790 --> 00:29:15.880
assertions that are made in her brief

741
00:29:15.880 --> 00:29:17.820
about the observations-

742
00:29:17.820 --> 00:29:21.840
<v ->This court involved in the child abuse cases</v>

743
00:29:21.840 --> 00:29:26.160
really shied away from the federal model, correct?

744
00:29:26.160 --> 00:29:27.570
<v ->Correct, correct.</v>

745
00:29:27.570 --> 00:29:29.580
However, if you look at those child abuse cases,

746
00:29:29.580 --> 00:29:31.920
what you're dealing with is very different technology

747
00:29:31.920 --> 00:29:33.660
than is that play here.

748
00:29:33.660 --> 00:29:34.668
I think it is important to compare

749
00:29:34.668 --> 00:29:37.250
and contrast what happens at,

750
00:29:37.250 --> 00:29:39.240
in trial as compared to what happens

751
00:29:39.240 --> 00:29:42.500
at a motion to suppress hearing because out of trial,

752
00:29:42.500 --> 00:29:43.333
it's the jury,

753
00:29:43.333 --> 00:29:45.440
who's the fact-finder and they have no control

754
00:29:45.440 --> 00:29:47.810
over the video conferencing that's happening.

755
00:29:47.810 --> 00:29:48.780
Here it's the judge,

756
00:29:48.780 --> 00:29:49.790
that's the fact-finder

757
00:29:49.790 --> 00:29:52.330
and the judge is judging found in her decision.

758
00:29:52.330 --> 00:29:53.890
She is the one who has control.

759
00:29:53.890 --> 00:29:54.930
So a lot of things.

760
00:29:54.930 --> 00:29:58.680
<v ->So your argument for Confrontation Clause Right for motion</v>

761
00:29:58.680 --> 00:30:00.070
to suppress?

762
00:30:00.070 --> 00:30:00.903
<v ->Yes.</v>

763
00:30:00.903 --> 00:30:02.368
And I would say that there could be a different definition

764
00:30:02.368 --> 00:30:03.590
of face to face

765
00:30:03.590 --> 00:30:06.510
that face-to-face in all practical meaning

766
00:30:06.510 --> 00:30:09.350
of what that could mean is satisfied by Zoom-

767
00:30:09.350 --> 00:30:10.770
<v ->Is there a recognized</v>

768
00:30:10.770 --> 00:30:13.305
a so-called Confrontation Clause Right?

769
00:30:13.305 --> 00:30:15.870
<v ->I'm sorry, I didn't hear the first part of that question.</v>

770
00:30:15.870 --> 00:30:17.810
<v ->Are there any cases that recognize</v>

771
00:30:17.810 --> 00:30:22.620
this novel Confrontation Clause Right that you're proposing?

772
00:30:22.620 --> 00:30:24.740
<v ->No, but the case law recognizes</v>

773
00:30:24.740 --> 00:30:26.980
that no constitutional right is absolute

774
00:30:26.980 --> 00:30:29.080
and it can yield to compelling interests.

775
00:30:29.080 --> 00:30:31.080
So in so far as we're saying,

776
00:30:31.080 --> 00:30:33.000
it should yield to the compelling interest presented

777
00:30:33.000 --> 00:30:35.713
by COVID-19 and the extreme,

778
00:30:36.760 --> 00:30:40.060
the extreme risk it has for health

779
00:30:40.060 --> 00:30:43.292
and safety of the individuals of those involved that yes,

780
00:30:43.292 --> 00:30:47.130
constitutional right in balance with that interest could

781
00:30:47.130 --> 00:30:51.270
yield to provide an Article 12 light type of a situation-

782
00:30:51.270 --> 00:30:53.590
<v ->But we don't have to do that...</v>

783
00:30:53.590 --> 00:30:55.083
Sorry, Gaziano are you done?

784
00:30:56.170 --> 00:30:58.600
<v ->I think either you have a Confrontation Clause Right</v>

785
00:30:58.600 --> 00:31:00.018
or you don't

786
00:31:00.018 --> 00:31:01.360
if you don't have one,

787
00:31:01.360 --> 00:31:03.590
then you can proceed to the rest of the analysis,

788
00:31:03.590 --> 00:31:05.393
but go ahead, Justice Kafker.

789
00:31:06.760 --> 00:31:07.593
I agree,

790
00:31:07.593 --> 00:31:08.450
we don't have constitutional rights have

791
00:31:08.450 --> 00:31:11.010
to give way to each other,

792
00:31:11.010 --> 00:31:14.220
but we don't have to make that choice,

793
00:31:14.220 --> 00:31:18.160
at least in this case because Ms. Kiley is not,

794
00:31:18.160 --> 00:31:22.090
she's recognizing that we treat this like a continuance.

795
00:31:22.090 --> 00:31:24.050
So we don't have a,

796
00:31:24.050 --> 00:31:27.190
we don't have a speedy trial.

797
00:31:27.190 --> 00:31:29.963
We're not backing up against the speedy trial rights.

798
00:31:32.050 --> 00:31:36.760
And we're not forced into this choice between competing

799
00:31:36.760 --> 00:31:40.303
constitutional rights unless you force us into it.

800
00:31:41.480 --> 00:31:45.190
So why should we do that in a case that we don't have to?

801
00:31:45.190 --> 00:31:48.067
<v ->Well, I guess my answer to that would be two fold.</v>

802
00:31:48.067 --> 00:31:50.260
The first is the Commonwealth doesn't know

803
00:31:50.260 --> 00:31:51.310
of any other instance,

804
00:31:51.310 --> 00:31:53.700
the judge in this instance decided that a continuance would

805
00:31:53.700 --> 00:31:54.680
not be appropriate.

806
00:31:54.680 --> 00:31:57.820
So the question would be whether judge game's abuse her

807
00:31:57.820 --> 00:31:59.590
discretion in making that call.

808
00:31:59.590 --> 00:32:01.130
Now, certainly that brings you

809
00:32:01.130 --> 00:32:03.360
into the constitutional analysis necessarily.

810
00:32:03.360 --> 00:32:05.750
So it has to be reached,

811
00:32:05.750 --> 00:32:08.890
but I don't think that it can be downplayed

812
00:32:08.890 --> 00:32:10.810
that the substantial and compelling interest

813
00:32:10.810 --> 00:32:14.290
that the Commonwealth has in moving its cases forward,

814
00:32:14.290 --> 00:32:15.830
not just because of efficiency,

815
00:32:15.830 --> 00:32:18.100
but because of the extreme difficulty

816
00:32:18.100 --> 00:32:19.760
and in a post-conviction context,

817
00:32:19.760 --> 00:32:22.561
this is recognized that delay has on a Commonwealth.

818
00:32:22.561 --> 00:32:24.332
And that's what I has-

819
00:32:24.332 --> 00:32:26.821
<v ->But does that really work in as a practical matter</v>

820
00:32:26.821 --> 00:32:27.940
in the real world,

821
00:32:27.940 --> 00:32:30.510
because we don't have,

822
00:32:30.510 --> 00:32:33.573
we got plenty of cases out there,

823
00:32:35.958 --> 00:32:37.200
it's not like

824
00:32:38.384 --> 00:32:42.080
we don't have enough courtrooms right now where we can hold

825
00:32:42.080 --> 00:32:43.580
live hearings.

826
00:32:43.580 --> 00:32:46.910
So we've got people who don't want to do this.

827
00:32:46.910 --> 00:32:49.523
Can't we look for someone who does,

828
00:32:50.600 --> 00:32:51.580
I'm just,

829
00:32:51.580 --> 00:32:52.413
the big picture.

830
00:32:52.413 --> 00:32:55.412
I don't know if you're speeding much along here.

831
00:32:55.412 --> 00:32:59.517
<v ->Your honor, to answer that question.</v>

832
00:32:59.517 --> 00:33:01.870
The Commonwealth has not found many defendants

833
00:33:01.870 --> 00:33:03.630
who are willing to do so,

834
00:33:03.630 --> 00:33:06.800
and I'd say without guidance and a holding from the court

835
00:33:06.800 --> 00:33:09.630
that it would be constitutional to do so many will be

836
00:33:09.630 --> 00:33:11.533
reluctant to actually, so.

837
00:33:11.533 --> 00:33:16.533
<v ->But aren't we gonna then get the case where someone</v>

838
00:33:16.760 --> 00:33:19.490
is trying to have all their rights

839
00:33:19.490 --> 00:33:22.073
at once exercised in COVID?

840
00:33:23.110 --> 00:33:25.060
This case, we're not forced to have that choice,

841
00:33:25.060 --> 00:33:27.337
but why don't we wait if someone's saying,

842
00:33:27.337 --> 00:33:28.677
"Let me out.

843
00:33:28.677 --> 00:33:31.187
"Don't deduct from my speeding trial time.

844
00:33:31.187 --> 00:33:36.187
"And I refuse to go into this Zoom hearing."

845
00:33:36.430 --> 00:33:37.900
That that's a different case.

846
00:33:37.900 --> 00:33:39.530
Isn't it for us?

847
00:33:39.530 --> 00:33:40.510
<v ->That is a different case.</v>

848
00:33:40.510 --> 00:33:43.210
I suggest that you don't wait until the case,

849
00:33:43.210 --> 00:33:46.110
we didn't get to choose which case got brought up here.

850
00:33:46.110 --> 00:33:48.770
This defendant filed this 2-11-3

851
00:33:48.770 --> 00:33:52.340
and I would say that as anyone and you all have been sitting

852
00:33:52.340 --> 00:33:53.173
at a single justice,

853
00:33:53.173 --> 00:33:55.500
it's been pure chaos as to what's been happening

854
00:33:55.500 --> 00:33:56.980
in the course full well.

855
00:33:56.980 --> 00:34:00.180
It's been exceptionally difficult to even get judges,

856
00:34:00.180 --> 00:34:02.420
to follow explicit standing orders,

857
00:34:02.420 --> 00:34:04.520
which state that people should not be having

858
00:34:04.520 --> 00:34:05.750
in-person hearings.

859
00:34:05.750 --> 00:34:08.050
So to say that the lower courts need guidance

860
00:34:08.050 --> 00:34:09.360
and that this should be happening.

861
00:34:09.360 --> 00:34:12.260
As some as that virtual hearings,

862
00:34:12.260 --> 00:34:14.700
as it should be told to the lower court judges that not only

863
00:34:14.700 --> 00:34:16.040
there are they constitutional,

864
00:34:16.040 --> 00:34:18.260
but they shouldn't be happening uniformly.

865
00:34:18.260 --> 00:34:20.210
One of the problems that we have is that there seems

866
00:34:20.210 --> 00:34:22.760
to be wide variety in judges that are willing

867
00:34:22.760 --> 00:34:24.690
to use this technology at all.

868
00:34:24.690 --> 00:34:25.600
And in some courts,

869
00:34:25.600 --> 00:34:27.950
it varies by even judges that happened to be sitting

870
00:34:27.950 --> 00:34:29.140
in that session.

871
00:34:29.140 --> 00:34:32.280
So there absolutely needs to be indication

872
00:34:32.280 --> 00:34:34.150
and guidance from above as to A,

873
00:34:34.150 --> 00:34:35.580
this technology should be used.

874
00:34:35.580 --> 00:34:37.648
And B that it's entirely constitutional,

875
00:34:37.648 --> 00:34:38.580
that it should be used.

876
00:34:38.580 --> 00:34:39.910
Now, the Commonwealth is not saying-

877
00:34:39.910 --> 00:34:41.923
<v ->One another question is Campbell,</v>

878
00:34:42.800 --> 00:34:45.860
and we don't have an evidentiary record on this,

879
00:34:45.860 --> 00:34:49.860
but the briefs include a bunch of these studies

880
00:34:51.430 --> 00:34:55.060
that outcomes of these virtual hearings,

881
00:34:55.060 --> 00:34:58.490
at least in the immigration context and in bail,

882
00:34:58.490 --> 00:34:59.863
the bail context,

883
00:35:01.260 --> 00:35:05.853
there's a weird effect of having this done by remotely.

884
00:35:07.220 --> 00:35:09.843
And that's a concerning if that's true.

885
00:35:12.261 --> 00:35:14.560
And so do we not have a...

886
00:35:14.560 --> 00:35:19.230
is there a potential that you're more likely to lose

887
00:35:19.230 --> 00:35:20.490
in this virtual world,

888
00:35:20.490 --> 00:35:23.430
at least according to these studies,

889
00:35:23.430 --> 00:35:25.127
and these are some distinguished professors

890
00:35:25.127 --> 00:35:26.750
who've done them,

891
00:35:26.750 --> 00:35:31.010
the diamond study, this, she's the premier,

892
00:35:31.010 --> 00:35:34.620
when the premier people on jury trials in the country.

893
00:35:34.620 --> 00:35:38.310
So how do we deal with that uncertainty?

894
00:35:38.310 --> 00:35:40.370
<v ->Sure, I'm reluctant to say yes,</v>

895
00:35:40.370 --> 00:35:41.360
because of the,

896
00:35:41.360 --> 00:35:44.130
it wasn't subject to cross examination and evidence wasn't

897
00:35:44.130 --> 00:35:44.963
taken onto it.

898
00:35:44.963 --> 00:35:45.796
So I'd say there,

899
00:35:45.796 --> 00:35:48.320
isn't a developed record to draw that conclusion,

900
00:35:48.320 --> 00:35:51.360
but I do here your honor,

901
00:35:51.360 --> 00:35:53.600
and it's not the Commonwealth contention that these hearings

902
00:35:53.600 --> 00:35:56.900
should take place totally and forever,

903
00:35:56.900 --> 00:35:59.310
that suppression hearing should be virtually.

904
00:35:59.310 --> 00:36:00.474
It's the first,

905
00:36:00.474 --> 00:36:04.440
the Commonwealth is alleging that not alleged,

906
00:36:04.440 --> 00:36:06.950
but the Commonwealth is suggesting that this court permit

907
00:36:06.950 --> 00:36:09.240
these type of hearings and limited circumstances,

908
00:36:09.240 --> 00:36:11.480
and that certain factors need to be met.

909
00:36:11.480 --> 00:36:13.900
The first factor that the judge has to find is that there's

910
00:36:13.900 --> 00:36:14.990
a compelling need,

911
00:36:14.990 --> 00:36:16.950
which COVID would present.

912
00:36:16.950 --> 00:36:18.770
And so it would only be in the instances

913
00:36:18.770 --> 00:36:20.620
in which there is a compelling need.

914
00:36:20.620 --> 00:36:21.853
And I'd stayed that,

915
00:36:23.425 --> 00:36:27.100
if the language in any of the Sixth Amendment

916
00:36:27.100 --> 00:36:28.860
or Article 12 cases,

917
00:36:28.860 --> 00:36:31.440
which recognize that these rights are not absolute

918
00:36:31.440 --> 00:36:32.830
and that they can yield

919
00:36:32.830 --> 00:36:36.560
to compelling circumstances are to mean anything.

920
00:36:36.560 --> 00:36:38.370
Then certainly a global pandemic

921
00:36:38.370 --> 00:36:41.400
in which the gathering of individuals in the small space,

922
00:36:41.400 --> 00:36:44.430
which a suppression hearing necessarily would be,

923
00:36:44.430 --> 00:36:47.200
should constitute such a comparator.

924
00:36:47.200 --> 00:36:51.310
<v ->But when the defendant waives that speedy trial right,</v>

925
00:36:51.310 --> 00:36:55.820
why is that compelling me that you identified

926
00:36:55.820 --> 00:36:57.393
the right compelling need?

927
00:36:58.480 --> 00:37:02.410
<v ->Sure, and certainly it is a harder argument</v>

928
00:37:02.410 --> 00:37:05.760
for me to make when a defendant is stating that.

929
00:37:05.760 --> 00:37:09.630
I think that that is only about one factor

930
00:37:09.630 --> 00:37:12.790
that needs to be considered in the whole variety of factors,

931
00:37:12.790 --> 00:37:15.653
which the Commonwealth started to go down.

932
00:37:16.910 --> 00:37:19.550
And I think I finished off with the victim's bill of rights,

933
00:37:19.550 --> 00:37:21.650
but that's just one competing factor that needs to be

934
00:37:21.650 --> 00:37:23.120
analyzed with a whole host-

935
00:37:23.120 --> 00:37:23.953
<v ->But in this case</v>

936
00:37:23.953 --> 00:37:26.450
this is the victim's bill of rights at play?

937
00:37:26.450 --> 00:37:27.940
<v ->It's not but.</v>

938
00:37:27.940 --> 00:37:31.210
<v ->So no compelling need on the pandemic front,</v>

939
00:37:31.210 --> 00:37:32.380
no victim bill of rights,

940
00:37:32.380 --> 00:37:34.370
what applies to this case?

941
00:37:34.370 --> 00:37:38.140
<v ->Sure, I would, what applies to this case</v>

942
00:37:38.140 --> 00:37:40.300
is the efficient administration of justice,

943
00:37:40.300 --> 00:37:42.410
because I disagree with my sister that the backlog

944
00:37:42.410 --> 00:37:44.410
is just gonna be jury trials,

945
00:37:44.410 --> 00:37:45.650
suppression motions happen

946
00:37:45.650 --> 00:37:47.060
in so many cases.

947
00:37:47.060 --> 00:37:49.390
And there will be a backlog of suppression motions

948
00:37:49.390 --> 00:37:53.140
if they are required to be in person in every single court,

949
00:37:53.140 --> 00:37:54.470
it is-

950
00:37:54.470 --> 00:37:55.773
<v ->Where is that in record.</v>

951
00:37:56.840 --> 00:37:58.340
<v ->Where is that in the record?</v>

952
00:38:03.090 --> 00:38:05.940
I think it's just shown by the very nature of this court,

953
00:38:05.940 --> 00:38:07.090
this case itself,

954
00:38:07.090 --> 00:38:09.510
this case was arraigned in May of 2019.

955
00:38:09.510 --> 00:38:11.020
His motion to suppress was filed

956
00:38:11.020 --> 00:38:13.540
over a year ago in November of 2019.

957
00:38:13.540 --> 00:38:16.730
And there's yet to be a hearing in this case.

958
00:38:16.730 --> 00:38:18.750
I think this case is indicative of what's happening

959
00:38:18.750 --> 00:38:21.030
in courts across the Commonwealth,

960
00:38:21.030 --> 00:38:24.330
because there is no mechanism by which there has been a,

961
00:38:24.330 --> 00:38:27.900
from this court stating that holding evidentiary hearings

962
00:38:27.900 --> 00:38:30.203
over Zoom is inappropriate way to go forward.

963
00:38:31.360 --> 00:38:33.860
There were a lot of questions asked of Attorney Kiley

964
00:38:33.860 --> 00:38:37.250
as to whether these are happening in cases,

965
00:38:37.250 --> 00:38:38.970
whether it's CPCS has

966
00:38:41.020 --> 00:38:43.550
a policy by which they object to evidentiary hearings

967
00:38:43.550 --> 00:38:44.383
over Zoom.

968
00:38:44.383 --> 00:38:45.280
And I can at least say

969
00:38:45.280 --> 00:38:48.000
in Suffolk County's experience hardly any,

970
00:38:48.000 --> 00:38:50.760
I think maybe one or two have gone forward in that time.

971
00:38:50.760 --> 00:38:53.373
And certainly that is not-

972
00:38:54.510 --> 00:38:57.300
<v ->Attorney Campbell, can I ask you the same question</v>

973
00:38:57.300 --> 00:39:00.401
I asked Attorney Kiley and that is of Judge Haimes'

974
00:39:00.401 --> 00:39:03.900
findings, not her conclusions,

975
00:39:03.900 --> 00:39:06.900
but her findings and how she described the Zoom process

976
00:39:06.900 --> 00:39:08.350
and the hearing process.

977
00:39:08.350 --> 00:39:10.830
Is there anything in there that's inaccurate?

978
00:39:10.830 --> 00:39:12.900
<v ->No, your honor.</v>

979
00:39:12.900 --> 00:39:17.020
And then my other question is when you get

980
00:39:17.020 --> 00:39:18.683
to this face-to-face

981
00:39:18.683 --> 00:39:22.760
very galleys to saying she can argue to the Zoom camera

982
00:39:22.760 --> 00:39:23.593
and not look,

983
00:39:23.593 --> 00:39:26.030
not make guys not make direct eye contact.

984
00:39:26.030 --> 00:39:28.740
To what extent does that exact eye-contact matter

985
00:39:28.740 --> 00:39:30.563
in that confrontation issue?

986
00:39:32.260 --> 00:39:33.960
<v ->I don't think it does.</v>

987
00:39:33.960 --> 00:39:36.490
And again, it's hard.

988
00:39:36.490 --> 00:39:40.010
This case doesn't fit in neatly with the cases that exist

989
00:39:40.010 --> 00:39:41.840
because they're talking about eye contact

990
00:39:41.840 --> 00:39:44.020
and they're talking about demeanor

991
00:39:44.020 --> 00:39:45.530
in the context of a trial,

992
00:39:45.530 --> 00:39:48.610
which is they're talking about a witness being in a witness

993
00:39:48.610 --> 00:39:50.080
box before jurors,

994
00:39:50.080 --> 00:39:52.670
whether it's six or 12 and the juror's ability

995
00:39:52.670 --> 00:39:55.560
to be able to see that witness's demeanor

996
00:39:55.560 --> 00:39:57.010
to see if he makes eye contact

997
00:39:57.010 --> 00:39:58.390
to see any of those things.

998
00:39:58.390 --> 00:40:00.480
Now, certainly Zoom.

999
00:40:00.480 --> 00:40:03.270
If a judge doesn't have a good enough view

1000
00:40:03.270 --> 00:40:05.040
of a person via Zoom,

1001
00:40:05.040 --> 00:40:07.480
she could ask them to move back, to move forward,

1002
00:40:07.480 --> 00:40:09.850
to speak louder, to turn up their volume.

1003
00:40:09.850 --> 00:40:11.670
If I were to look down and start reading,

1004
00:40:11.670 --> 00:40:14.220
you could see that I was looking down to start reading,

1005
00:40:14.220 --> 00:40:15.970
or there could be questions that were asked

1006
00:40:15.970 --> 00:40:17.380
about who was in the room

1007
00:40:17.380 --> 00:40:20.060
or what was going on that would really allay some

1008
00:40:20.060 --> 00:40:23.517
of the concerns that my sister raises in her brief-

1009
00:40:23.517 --> 00:40:27.270
<v ->This is the police officer looking at the defendant</v>

1010
00:40:27.270 --> 00:40:29.583
and saying he consented to the search.

1011
00:40:31.000 --> 00:40:33.020
That's the idea, correct?

1012
00:40:33.020 --> 00:40:34.285
<v Cambell>Yes.</v>

1013
00:40:34.285 --> 00:40:36.580
<v ->But it is that when you do that,</v>

1014
00:40:36.580 --> 00:40:38.460
consistent with Bergstrom,

1015
00:40:38.460 --> 00:40:43.460
Bergstrom says we're watching the defendant's reaction.

1016
00:40:43.850 --> 00:40:46.140
We're watching how the police officer.

1017
00:40:46.140 --> 00:40:50.260
So in Justice Casiano's facts statement,

1018
00:40:50.260 --> 00:40:54.220
isn't the judge looking at both the defendant

1019
00:40:54.220 --> 00:40:58.800
and the police officer when making that credibility finding,

1020
00:40:58.800 --> 00:41:01.430
and the judge can't do it as easily on Zoom

1021
00:41:01.430 --> 00:41:03.520
because they're not looking at each other.

1022
00:41:03.520 --> 00:41:06.760
The judges looking at thumbnails too,

1023
00:41:06.760 --> 00:41:08.490
it's hard to do.

1024
00:41:08.490 --> 00:41:10.020
In, particularly in light of the,

1025
00:41:10.020 --> 00:41:11.790
what the language in Bergstrom,

1026
00:41:11.790 --> 00:41:14.900
which was pretty specific.

1027
00:41:14.900 --> 00:41:16.010
<v ->First term is specific.</v>

1028
00:41:16.010 --> 00:41:18.440
But first term is very specific to trials.

1029
00:41:18.440 --> 00:41:20.760
And a lot of what first term is talking

1030
00:41:20.760 --> 00:41:22.730
about is the inherent limitations

1031
00:41:22.730 --> 00:41:25.250
with the type of video comp video that was used,

1032
00:41:25.250 --> 00:41:26.083
in that case,

1033
00:41:26.083 --> 00:41:27.623
it was a closed circuit television-

1034
00:41:28.670 --> 00:41:29.590
<v ->That closed circuit</v>

1035
00:41:29.590 --> 00:41:34.590
television was not that prevented the child witness

1036
00:41:34.780 --> 00:41:37.950
from being in the same room with the defendant.

1037
00:41:37.950 --> 00:41:38.828
<v ->Yes.</v>

1038
00:41:38.828 --> 00:41:40.840
And not only that there was a view.

1039
00:41:40.840 --> 00:41:43.540
So they couldn't see the view of the chat...

1040
00:41:43.540 --> 00:41:44.720
That was the purpose of your honor

1041
00:41:44.720 --> 00:41:47.880
and the view of the child witness wasn't that great.

1042
00:41:47.880 --> 00:41:49.660
And there were problems with color,

1043
00:41:49.660 --> 00:41:51.193
there seem to be distortions.

1044
00:41:52.450 --> 00:41:53.550
And that was the case.

1045
00:41:54.450 --> 00:41:55.780
<v ->Let me ask you Ms. Campbell,</v>

1046
00:41:55.780 --> 00:42:00.121
this hypothetical then let's say during COVID,

1047
00:42:00.121 --> 00:42:03.150
there's a jury waive child rape kit.

1048
00:42:03.150 --> 00:42:05.810
We've got con Como versus the MRR in mind

1049
00:42:05.810 --> 00:42:09.600
and the enhanced Confrontation Clause protections

1050
00:42:09.600 --> 00:42:13.310
under the declaration of rights jury way prior,

1051
00:42:13.310 --> 00:42:18.310
and the child witnesses going to testify via Zoom

1052
00:42:19.920 --> 00:42:24.723
because of COVID is that a Confrontation Clause violation?

1053
00:42:28.030 --> 00:42:29.650
<v ->It could be, it could be.</v>

1054
00:42:29.650 --> 00:42:31.920
And I think the difference there is the difference

1055
00:42:31.920 --> 00:42:34.360
between what is being discerned at trial.

1056
00:42:34.360 --> 00:42:37.020
And what's being discerned at a motion to suppress.

1057
00:42:37.020 --> 00:42:40.070
At trial is recognized that the fact-finder

1058
00:42:40.070 --> 00:42:44.200
is determining an individual's innocence or guilt.

1059
00:42:44.200 --> 00:42:48.170
At motion is the presence of very different type of,

1060
00:42:48.170 --> 00:42:49.720
of calculation that the judge is trying

1061
00:42:49.720 --> 00:42:52.110
to determine is whether a particular set

1062
00:42:52.110 --> 00:42:53.920
of actions met a legal standard.

1063
00:42:53.920 --> 00:42:57.560
So I I'd say it's qualitatively and necessarily different-

1064
00:42:57.560 --> 00:43:01.530
<v ->But it's very similar in that the judge is just trying</v>

1065
00:43:01.530 --> 00:43:04.823
to evaluate the credibility of the witness in front of her.

1066
00:43:06.450 --> 00:43:07.373
That's true.

1067
00:43:09.975 --> 00:43:13.180
I hadn't thought of it in terms of a bench trial.

1068
00:43:13.180 --> 00:43:15.920
There's something that gives me pause due to the difference

1069
00:43:15.920 --> 00:43:18.920
in what's being decided.

1070
00:43:18.920 --> 00:43:21.390
Ultimately, the ultimate decision that a judge

1071
00:43:21.390 --> 00:43:23.060
is making as a bench trial is in opposed

1072
00:43:23.060 --> 00:43:24.620
to a motion to suppress.

1073
00:43:24.620 --> 00:43:27.030
And also when you think of a right to confrontation

1074
00:43:27.030 --> 00:43:28.400
to a motion to suppress,

1075
00:43:28.400 --> 00:43:30.000
though this court has never recognized

1076
00:43:30.000 --> 00:43:32.400
that there is a right to confrontation

1077
00:43:32.400 --> 00:43:34.340
in the evidentiary hearing itself,

1078
00:43:34.340 --> 00:43:36.000
there are relaxed evidentiary rules.

1079
00:43:36.000 --> 00:43:37.590
So hearsay routinely gets in.

1080
00:43:37.590 --> 00:43:38.850
So they're already as recognized

1081
00:43:38.850 --> 00:43:42.040
this relaxed standard that exists in a motion to suppress.

1082
00:43:42.040 --> 00:43:45.070
That seems to suggest that whatever right of confrontation

1083
00:43:45.070 --> 00:43:45.903
that you have,

1084
00:43:45.903 --> 00:43:46.736
if you have one at all,

1085
00:43:46.736 --> 00:43:48.470
it is a relapsed rate of competence.

1086
00:43:48.470 --> 00:43:49.860
<v ->But wouldn't your argument.</v>

1087
00:43:49.860 --> 00:43:53.040
Wouldn't your sister's argument rather,

1088
00:43:53.040 --> 00:43:55.130
almost turn that on its head and we'd have to start

1089
00:43:55.130 --> 00:43:57.320
reexamining our hearsay conclusions

1090
00:43:57.320 --> 00:43:58.830
about what we're letting in,

1091
00:43:58.830 --> 00:44:01.410
because now we're finding more of a confrontation right

1092
00:44:01.410 --> 00:44:02.980
in these motions to suppress.

1093
00:44:02.980 --> 00:44:04.100
So that relaxed standard

1094
00:44:04.100 --> 00:44:06.053
might not be a good standard to apply.

1095
00:44:10.430 --> 00:44:13.330
<v ->I disagree in so far as I think</v>

1096
00:44:13.330 --> 00:44:15.050
that's a standard that's already being applied.

1097
00:44:15.050 --> 00:44:17.210
If you look at what's being applied in,

1098
00:44:17.210 --> 00:44:18.043
you look at the...

1099
00:44:18.043 --> 00:44:19.870
I agree with my sister and said the types of hearsay

1100
00:44:19.870 --> 00:44:23.040
to routinely get in at a motion to suppress hearing.

1101
00:44:23.040 --> 00:44:24.500
So with this relaxed standard,

1102
00:44:24.500 --> 00:44:26.740
I don't think it would necessarily change

1103
00:44:26.740 --> 00:44:27.833
the evidence that comes in.

1104
00:44:27.833 --> 00:44:29.450
<v ->It's not hearsay anyway,</v>

1105
00:44:29.450 --> 00:44:31.310
it's offered to understand

1106
00:44:31.310 --> 00:44:33.503
what the police officer's knowledge was.

1107
00:44:35.286 --> 00:44:37.220
<v ->It is, it is.</v>

1108
00:44:37.220 --> 00:44:38.390
<v ->It's not offered for it's truth.</v>

1109
00:44:38.390 --> 00:44:39.460
It's offered for,

1110
00:44:39.460 --> 00:44:44.090
to understand the information that the officer acted upon.

1111
00:44:46.030 --> 00:44:47.723
<v ->I'm not sure I understand that.</v>

1112
00:44:49.070 --> 00:44:50.040
How does...

1113
00:44:50.040 --> 00:44:54.620
Why wouldn't it be offered for the truth that the cop's

1114
00:44:54.620 --> 00:44:57.320
testimony at the motion to suppress hearing?

1115
00:44:57.320 --> 00:44:59.360
Why isn't it offered for the truth?

1116
00:44:59.360 --> 00:45:01.360
<v ->If the officer is talking</v>

1117
00:45:01.360 --> 00:45:06.360
about what the buyer said happened with the seller,

1118
00:45:06.610 --> 00:45:10.840
that's offered to the offices and calibrate probable cause.

1119
00:45:10.840 --> 00:45:12.710
And even if it's not true,

1120
00:45:12.710 --> 00:45:14.973
it calibrates into probable cause.

1121
00:45:17.483 --> 00:45:19.970
<v ->Everybody all set?</v>

1122
00:45:19.970 --> 00:45:21.290
Okay, thank you so much-

1123
00:45:21.290 --> 00:45:22.813
<v ->Thank you your honor.</v>