Trials & Litigation

Technical problems during remote trial violated parent’s due process rights, top state court says

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The Massachusetts Supreme Judicial Court has ordered a new trial for a mother whose faulty cellphone service caused her to miss much of remote proceeding to terminate her parental rights.

The Massachusetts Supreme Judicial Court found in a May 9 opinion that the mother’s due process rights were violated when the technology problem caused her to miss most of the evidence against her. The mother was representing herself during the trial.

The state high court said a remote trial to terminate parental rights during the COVID-19 pandemic is not a per se violation of due process when adequate safeguards are used.

“Lamentably, the first day of the two-day virtual bench trial conducted in this case was plagued by technological issues and inadequate safeguards,” the court said.

The bench trial happened in September 2020. The judge, the clerk, the attorneys and the mother’s standby counsel were present via a video connection. The standby counsel informed the court that the mother did “not have video capacity” to participate.

The judge adjourned the proceedings for 30 minutes to allow the standby counsel to give the mother a call-in number to participate. When the mother dialed in, she asked to postpone the trial for in-person proceedings. The judge refused.

During testimony by the first witness, a social worker with the Massachusetts Department of Children and Families, the mother got disconnected. A clerk noticed that the mother had tried to reconnect and was placed in a Zoom waiting room.

It was unclear how long the mother wasn’t present for the testimony of the social worker, who had been assigned to the mother’s case.

The mother was readmitted to the virtual trial. After the department’s attorney finished direct examination of the social worker, the judge asked the mother whether she had any questions. The mother didn’t respond, although her number still appeared on the screen, suggesting that she might still be connected.

The clerk called the mother at her number, but she did not answer. The judge stated that if the mother couldn’t participate because of technology, she could hang up and try to call back in. The mother didn’t respond. The judge directed the clerk to disconnect the mother.

The judge recessed the trial for a half-hour and then resumed the hearing without the mother. There were more technology problems. The judge had trouble hearing one witness, whose connection broke up during testimony. A different witness had to participate by phone after her video connection froze.

The mother was supposed to be the fourth and final witness. When the trial reconvened two days later, the mother again participated by phone. She told the judge that her cellphone service was bad the first day of trial. She could hear but could not be heard, she said.

The judge didn’t ask the mother how much of the prior testimony she had heard. Instead, he asked whether she was ready to cross-examine the first witness.

At first, the mother agreed, but then she declared, “I’m done. I’m so f- - -ing done with this.” She then appeared to end the call. She called back in later.

The mother was allowed to cross-examine the first witness. After one of her first questions was met with an objection, she said, “This is a mock trial because of COVID. I have plenty of paperwork here. There’s no way I can produce my evidence.”

The mother said she didn’t want to question anyone, and the trial proceeded to closing arguments.

The judge terminated the mother’s parental rights. When the mother moved for a new trial, she said in a supporting affidavit that “she heard only six or seven minutes” of the testimony by the first witness. The mother said she had been driving around in a car during the testimony in hopes that she would find a better cellphone signal.

The court said remote trials are permissible, but judges must insure at the outset that the participants understand the procedures to be used if the technology doesn’t work.

In the mother’s case, there were no advance steps taken to determine whether the mother could connect to the trial by Zoom. The judge then defaulted to having the mother participate by telephone when he learned that the mother didn’t have video capacity.

“At the very least,” the Massachusetts Supreme Judicial Court said, “the judge should have determined what technology she might have available to her that would allow her to connect by video and, if she did not have any, whether it was possible to assist her in obtaining access to such technology.”

It is also unclear whether the video platform used in the trial had a “breakout room” function that would have allowed the mother to consult with the standby counsel during the hearing.

A discussion of what a breakout room is and how it can be requested and used should be part of the instructions provided before trial, the court said.

Nor is there any record of how documents and exhibits could be shared with the mother. And there was no way for the mother to share documents when she couldn’t participate by video. Documents could have been exchanged in advance, which is particularly important when participants are using a phone connection, the court said. It is unclear whether any exchange took place.

Given the lack of safeguards in place, the judge should have suspended the trial until the reason for the mother’s absence could be determined, the court said.

Hat tip to, which had coverage of the trial.

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