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SJC-13009,
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John W. Vazquez Diaz, the Commonwealth
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We have Attorney Kiley.
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There she is.
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Sorry about that,
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here I am.
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You can proceed.
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Thank you.
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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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When you say he would be willing to wait,
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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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Yes, and he said that explicitly at the hearing,
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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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This question is not going to surprise you.
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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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I think the key reason
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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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Miss.Kiley, before you get to that,
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can I ask you just a preliminary question?
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Sure.
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This case, if we ruin this case,
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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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Yes, well, I think,
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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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Does that waiver come into our due process balancing?
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In...
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I'm not sure I understand in what way.
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There are a bunch of constitutional provisions.
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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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Wait, to waive a speedy trial rate?
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Right.
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Yes, exactly and this is the point
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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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Can you waive the constitutional right
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that could be Wingo constitutional right to a speedy trial?.
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I am not aware of any reason that the defendant
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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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Normally just treated like a continuance.
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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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Sure, I think that's right under the Rule 36 calculation
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at this time,
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you cannot count against the Commonwealth-
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Can I ask about the practicalities if you have a right
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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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That's right.
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For motions to suppress,
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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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I think that everybody has been proceeding
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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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How would hearsay?
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Cause hearsay is a big part of motions to suppress.
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I think hearsay has permitted motions to suppress
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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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What about the informants
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and the other stuff that appears
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in the warrants all the time.
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We're not talking about...
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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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Would you agree
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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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I would agree with that.
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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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We all recognize...
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Go ahead-
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Can I ask one other question
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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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I think it's fair to compare it to what would happen
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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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Oh, can I stop you there, counsel?
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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,
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which I thought was part of your analysis
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on why Zoom is inefficient.
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Sorry, yes.
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I think if the judge is wearing a mask
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or the defendant is wearing a mask,
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I'm not sure that that makes a huge difference-
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Let's put them in a stand the witness
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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
My understanding from the JMAC Report
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
Wait can I push you on that?
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
I think there are several responses,
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
But why not?
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
First of all,
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
Decided the confrontation right yet.
334
00:13:18.750 --> 00:13:20.120
But if I could just go back
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
In the constitution requires
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
I'm just saying that you don't have
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
But you just said that all of these constitutional rights
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
So this court recognized this problem
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
Let me push you on that one,
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
Actually, that's not what I've heard.
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
You pending a lot of time trying
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
But along those lines,
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
I'm not sure that...
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
Well, putting aside her conclusions,
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
Well, I think that she,
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
Right, and again,
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
Well, right.
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
But I get back to the communications with counsel,
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
And again,
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
Feel about the other governmental interests.
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
I agree that the government has an interest
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
That again, I know you represent Mr. Diaz.
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
Right, and that's where I think
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
Let me ask you something,
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
The individual attorney and their client.
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
Well, CPCS has certain performance standards
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
They have to object to a Zoom hearing?
507
00:19:57.690 --> 00:19:58.523
Right?
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
But do you knowledge, is there a uniform policy or not?
521
00:20:30.840 --> 00:20:31.673
No.
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
Can I ask you a variation on a question Justice Casiano
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
I think, and I may be thinking of a single desk disorder,
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
But I understand that,
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
Well, I take into account that he's-
570
00:22:37.672 --> 00:22:39.190
Well he's,
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
Well, again,
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
Not everybody...
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
Thank you your honor.
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
Before we go forward further with that,
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
I don't believe so.
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
It's not something that it could be worked
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
Well, it couldn't be a bar.
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
You lose unless we find
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
I don't believe so.
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
How was that Article 12 relax.
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
It is face to face
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
You're begging the question.
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
So I think Article 12 "face-to-face"
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
It's you either have a Confrontation Clause Right
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
Well you, you have a right to face to face.
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
This court involved in the child abuse cases
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
Correct, correct.
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
So your argument for Confrontation Clause Right for motion
761
00:29:58.680 --> 00:30:00.070
to suppress?
762
00:30:00.070 --> 00:30:00.903
Yes.
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
Is there a recognized
768
00:30:10.770 --> 00:30:13.305
a so-called Confrontation Clause Right?
769
00:30:13.305 --> 00:30:15.870
I'm sorry, I didn't hear the first part of that question.
770
00:30:15.870 --> 00:30:17.810
Are there any cases that recognize
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
No, but the case law recognizes
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
But we don't have to do that...
783
00:30:53.590 --> 00:30:55.083
Sorry, Gaziano are you done?
784
00:30:56.170 --> 00:30:58.600
I think either you have a Confrontation Clause Right
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
Well, I guess my answer to that would be two fold.
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
But does that really work in as a practical matter
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
Your honor, to answer that question.
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
But aren't we gonna then get the case where someone
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
That is a different case.
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
One another question is Campbell,
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
Sure, I'm reluctant to say yes,
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
But when the defendant waives that speedy trial right,
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
Sure, and certainly it is a harder argument
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
But in this case
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
It's not but.
938
00:37:27.940 --> 00:37:31.210
So no compelling need on the pandemic front,
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
Sure, I would, what applies to this case
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
Where is that in record.
951
00:37:56.840 --> 00:37:58.340
Where is that in the record?
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
Attorney Campbell, can I ask you the same question
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
No, your honor.
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
I don't think it does.
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
This is the police officer looking at the defendant
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
Yes.
1013
00:40:34.285 --> 00:40:36.580
But it is that when you do that,
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
First term is specific.
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
That closed circuit
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
Yes.
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
Let me ask you Ms. Campbell,
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
It could be, it could be.
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
But it's very similar in that the judge is just trying
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
But wouldn't your argument.
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
I disagree in so far as I think
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
It's not hearsay anyway,
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
It is, it is.
1108
00:44:37.220 --> 00:44:38.390
It's not offered for it's truth.
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
I'm not sure I understand that.
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
If the officer is talking
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
Everybody all set?
1122
00:45:19.970 --> 00:45:21.290
Okay, thank you so much-
1123
00:45:21.290 --> 00:45:22.813
Thank you your honor.