BBA Had Joined Amicus Brief Cautioning on Dangers of Virtual Trials
This week, the SJC released its decision in Adoption of Patty , an impounded case in which the BBA and eight other groups had joined an amicus brief from the Committee for Public Counsel Services (CPCS). The brief argued that trials on termination of parental rights (TPR) must not be held virtually over a party’s objection, given the high stakes involved and the inherent biases and other risks in Zoom trials.
In a unanimous decision authored by Justice Dalila Argaez Wendlandt, the Court ruled that the mother, appealing the judge’s ruling terminating her parental rights, had no per se right to an in-person TPR trial “provided that adequate safeguards are employed” — but limited that holding to the emergency public-health circumstances. The Court concluded nonetheless that the mother had been deprived of due process because this virtual trial “was plagued by technological issues and inadequate safeguards.”
In carefully cataloging all the technological mishaps that occurred here the ruling helps underscore the brief’s arguments about the inadequacies of relying on technology to approximate in-person proceedings. And while the Court did not fully accept that premise, it did acknowledge that virtual trials are “never ideal”.
Indeed, the amicus brief takes pains to note that low-income litigants, people of color, and other vulnerable or marginalized parties, are not only subject to implicit bias that is exacerbated by the mediation of technology between themselves and the fact-finder, but are also less likely to enjoy adequate on-line access to accommodate full, active participation in a Zoom trial. Not only did the mother in this case suffer from connectivity problems, two other witnesses, both of them social workers, faced similar issues.
The Patty opinion also concurs with the brief in that parents have a fundamental liberty interest in the care and custody of their children. The brief argued that, in light of that interest, and the risks and flaws attendant to virtual hearings, TPR trials should never take place absent extraordinary circumstances — but it did offer a list of safeguards that should be applied in any such proceeding. And though the ruling does not directly establish the safeguards that the CPCS brief proposed, it does explain various ways that this trial should have been handled differently.
This is the third pandemic-era case in which the BBA has joined an amicus brief on the threat posed by holding Zoom proceedings over a party’s objection, following Commonwealth v. Vazquez Diaz and Commonwealth v. Curran