Appeals court hears argument that videotaped deposition denied defendant fair confrontation

Chief Justice Amy Blake and a three-justice panel heard argument Tuesday in Commonwealth v. Bernardo Simas (Docket No. 24-P-360) over whether a videotaped deposition admitted at trial violated the defendant’s confrontation rights and whether trial counsel provided ineffective assistance.

The defense argued the videotape was inadmissible and prejudicial because it “zoomed in solely on [the witness’s] face,” preventing jurors from seeing the confrontation as it occurred. Zachary Long, counsel for the appellant, said, “The videotaped deposition in this case was inadmissible, and the Commonwealth’s only witness stated unequivocally that she was not going to return to The United States.” Long argued that trial counsel’s agreement to admit the tape — “to waive his client’s right and admit the video” — was “manifestly unreasonable” and deprived the jury of a fair ability to assess credibility.

Assistant District Attorney Brynn Morse, arguing for the Commonwealth, replied that the constitutional requirement is satisfied when the testifying witness and the defendant can see each other during testimony. Morse said the deposition allowed jurors to “see the testifying witness clearly engage her reactions,” and noted the witness identified the defendant on the tape. She relied on case law including Tufts and Amaro and argued that, even if the camera angle could have been better, the recording did not present the sort of face‑to‑face deprivation that courts have found fatal.

Justices questioned whether the recording’s composition—what the camera showed and what it omitted—was a matter of best practice or a constitutional requirement. Defense counsel cited Bergstrom, Emerald and Johnson as authorities for stricter requirements and argued the recording’s selective framing risked prejudice because jurors could infer things from what they saw. Counsel also said the record lacked an evidentiary hearing explaining what trial counsel learned after the deposition that might have affected cross‑examination; the defense said a hearing had been denied.

The Commonwealth argued that even if the witness were unavailable, the deposition satisfied the confrontation clause and that trial counsel could reasonably have chosen to admit the tape because it limited and fixed the witness’s testimony. Morse also told the panel that if the witness truly were unavailable, a tactical decision to use the deposition could be reasonable, since live testimony might have been more damaging to the defense.

The court heard argument on both the confrontation‑clause question and the ineffective‑assistance claim. The panel stated it would take the matter under advisement and asked the parties to rest their arguments on the briefs filed.

The case remains under advisement; no decision was announced from the bench.