No High Court Ruling on Whether Two-Way Video Testimony Satisfies Crawford

Since the U.S. Supreme Court’s decision in Crawford v. Washington, interest has been growing in the use of two-way video testimony as a method to satisfy the confrontation clause when a witness cannot be present at trial. As readers of this blog know, Crawford held that under the sixth amendment’s confrontation clause, testimonial statements by witnesses who do not appear at trial cannot be admitted unless the State establishes unavailability and a prior opportunity to cross-examine. The Court’s subsequent decision in Melendez-Diaz, holding that forensic laboratory reports are testimonial and thus subject to the new Crawford rule, elevated the level of interest in two-way video systems as a tool to satisfy Crawford. (For a primer on Crawford’s new confrontation clause analysis, see my bulletin posted here.)

In June, U.S. Supreme Court denied certiorari in a case that presented an opportunity for the Court to rule on the constitutionality of two-way systems under Crawford. In Wrotten v. New York, 130 S. Ct. 2520 (June 7, 2010), the defendant was convicted of assault after a trial in which the victim, because he was elderly, in poor health, and unable to travel to New York to attend court, was allowed to testify by way of live, two-way video. The Court of Appeals of N.Y. (the highest court in that state) held that in the absence of a statute authorizing the procedure, the trial judge had inherent authority to allow the victim to testify using live, two-way video. Also, citing Maryland v. Craig, 497 U.S. 836 (1990), the N.Y. high court held that the exercise of this inherent authority after a finding of necessity is permissible under the confrontation clause. The defendant sought review by the U.S. Supreme Court and as noted above, the Court declined to review the case.

Justice Sotomayor filed a statement in which she agreed with the denial of certiorari but noted that the issue was “an important one . . . not obviously answered” by Craig. In Craig, the Court had upheld, in the face of a confrontation clause challenge, a Maryland statute that allowed child witnesses to testify through a one-way, closed-circuit television system. In upholding the statute, the Craig Court required that certain findings be made before such a procedure could be employed. In essence, Craig involved a balancing of the public policy interest in protecting child victims and a defendant’s confrontation clause rights. There has been some uncertainty about whether Craig survives Crawford. See Crawford, 541 U.S. at 67-68 (“By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design.”). Significantly, Justice Scalia, the author of Crawford, dissented in Craig.

In her statement, Justice Sotomayor clarified that “[b]ecause the use of video testimony in this case arose in a strikingly different context than in Craig, it is not clear that the latter is controlling.” She went on to agree with the Court’s action but expressly emphasized that it did not constitute a ruling on the merits or an expression of an opinion regarding the importance of the question presented.

I have ordered the briefs in Wrotten. If anyone is interested in the cases cited in them, feel free to contact me.