As jury trials resume across the state, many criminal courts will soon confront the issue of whether to permit State’s witnesses to wear masks while testifying. CDC guidance suggests that there can be substantial health risks to allowing unmasked testimony in the confines of a courtroom, but as I explore below, the allowance of masked testimony presents its own significant constitutional risks.
Tag Archives: remote testimony
I recently published a lengthy paper here examining the constitutionality of remote testimony in criminal trials under Crawford and the confrontation clause. In that paper I noted that the North Carolina Court of Appeals has held that Maryland v. Craig procedures for child victims survive Crawford. Maryland v. Craig was a pre-Crawford United States Supreme Court case that carved out an exception to the right to face-to-face confrontation at trial. In Craig the Court upheld a Maryland statute that allowed a judge to receive, through a one-way closed-circuit television system, the testimony of an alleged child abuse victim. Upholding the Maryland procedure, the Court reaffirmed the importance of face-to-face confrontation of witnesses appearing at trial but concluded that such confrontation was not an indispensable element of the right to confront one’s accusers. It held that while “the Confrontation Clause reflects a preference for face-to-face confrontation . . . that [preference] must occasionally give way to considerations of public policy and the necessities of the case.” It went on to explain that “a defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” As to the important public policy, the Court stated: “a State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court.” However, the Court made clear that the State must make a case-specific showing of necessity. Specifically, the trial court must (1) “hear evidence and determine whether use of the one-way closed-circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify”; (2) “find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant”; and (3) “find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than mere nervousness or excitement or some reluctance to testify.” The Court went on to note that in the case before it, the reliability of the testimony was otherwise assured. Although the Maryland procedure prevented a child witness from seeing the defendant as he or she testified at trial, the procedure required that (1) the child be competent to testify and testify under oath; (2) the defendant had full opportunity for contemporaneous cross-examination; and (3) the judge, jury, and defendant were able to view the witness’s demeanor while he or she testified. Although the United States Supreme Court has not yet considered whether the procedure sanctioned in Craig for child victims survives Crawford, the North Carolina Court of Appeals has held that it does, State v. Jackson, ___ N.C. App. ___, 717 S.E.2d. 35, 39–40 (2011); State v. Lanford, ___ N.C. App. ___, 736 S.E.2d 619 (2013), clearing the way for continued use of Craig procedures for child victims post-Crawford.
Even before Crawford there had been some debate about whether Craig procedures could be expanded beyond the child victim context to other witnesses. Craig of course requires that the prosecution advance an important public policy to support the use of remote testimony. This suggests that to be Craig compliant, remote testimony would be permissible only when such an interest exists. Thus, once Craig procedures are applied outside of the child victim context, some important public policy interest other than protecting child sexual abuse victims must be asserted. As I discuss in the paper mentioned above, cases in other jurisdictions have held that the following public policy interests satisfy the confrontation clause:
- national security in terrorism cases,
- combating international drug smuggling,
- protecting witnesses who have been intimidated, and
- protecting a seriously ill witness’s health.
In State v. Seelig, the North Carolina Court of Appeals weighed in, finding that the latter justification—protecting a seriously ill witness’s health—sufficiently justifies limiting confrontation rights. In Seelig, the defendant was charged with obtaining property by false pretenses for selling products alleged to be gluten free but which in fact contained gluten. At trial, the trial court allowed an ill witness to testify by way of a two-way, live, closed-circuit web broadcast from Nebraska. The witness testified regarding the results of laboratory tests he performed on samples of the defendant’s products. The trial court conducted a hearing and found that the witness had a history of panic attacks, had suffered a severe panic attack on the day he was scheduled to fly from Nebraska to North Carolina for trial, was hospitalized as a result, and was unable to travel to North Carolina because of his medical condition. The defendant was convicted and he appealed, arguing that the use of remote testimony violated his confrontation clause rights. Applying Craig, the court disagreed, concluding that the trial court’s findings were sufficient to establish that allowing the witness to testify remotely was necessary to meet an important state interest: protecting the witness’s ill health. Turning to Craig’s second requirement, the court found that reliability of the witness’s testimony was otherwise assured, noting, among other things that the witness testified under oath and was subjected to cross-examination. In so doing, it also held that Craig is the proper analysis for two-way testimony, implicitly rejecting a minority view that two-way testimony need not be subjected to a Craig inquiry at all.
So now it’s time for you to weigh in. How common is remote testimony in the trials other than those involving child victims? And for defense lawyers, does it degrade the defendant’s confrontation right? If so, how? I’d love to hear your thoughts. Please post them or email me directly: smithj@sog.unc.edu
In a case decided earlier this month, the North Carolina Court of Appeals held that Maryland v. Craig, which allows certain child abuse victims to testify by way of closed-circuit television (CCTV) systems, survives Crawford. Crawford, of course, is the U.S. Supreme Court’s 2004 decision radically revamping confrontation clause analysis. As a general rule, the confrontation clause protects the right to face-to-face confrontation. This is understood to mean that the witness testifies live at trial in a setting in which the defendant and the witness can see and hear each other. In Maryland v. Craig, 497 U.S. 836 (1990), however, the United States Supreme Court carved out an exception to the right to face-to-face confrontation. In Craig, the Court upheld a Maryland statute allowing a judge to receive, through a one-way CCTV system, testimony from an alleged child abuse victim. The Court reaffirmed the importance of face-to-face confrontation of witnesses appearing at trial, but concluded that such confrontation was not an indispensable element of the confrontation right. It held that while “the Confrontation Clause reflects a preference for face-to-face confrontation, . . . that [preference] must occasionally give way to considerations of public policy and the necessities of the case.” Id. at 849 (quotation and citation omitted). It went on to explain that the confrontation right “may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Id. at 838 (emphasis added). As to the important public policy at issue in the case at hand, the Court stated: “a State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers.” Id. at 854. However, the Court made clear that the State must make a case-specific showing of necessity. Specifically, the trial court must (1) hear evidence and determine whether the procedure is necessary to protect the welfare of the child witness; (2) find that the child would be traumatized by the defendant’s presence; and (3) find that the child’s emotional distress “is more than de minimis.” Id. at 855-56. The Court went on to note that in the case presented, the reliability of the testimony was otherwise assured. Although the law prevented a child witness from seeing the defendant while testifying, it required that (1) the child be competent and under oath; (2) the defendant have full opportunity for contemporaneous cross-examination; and (3) the judge, jury, and defendant are able to view the witness while he or she testified. Id. at 851.
Some questioned whether Craig remained good law after Crawford. After all, Craig involved a balancing of interests and rights: the public policy interest in protecting child victims versus a defendant’s confrontation clause rights. Crawford, however, noted that “[b]y replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design.” Crawford, 541 U.S. at 67-68. Earlier this month North Carolina’s intermediate appellate court addressed the issue, holding that Craig survives Crawford. The case was State v. Jackson and it involved sex offenses allegedly committed against a four-year-old victim C.G. The trial court found C.G. (who was six at the time of trial) competent to testify. Based primarily on expert witness testimony that C.G. would experience trauma by testifying in the defendant’s presence that would affect her ability to communicate with the jury, the trial court authorized C.G. to testify using a CCTV system. Using such a system, C.G. testified that the defendant “put his priva[te] part in [her] mouth” while wiggling his body and “put his finger in [her] private part.” The defendant was found guilty and he appealed, arguing in part that by allowing C.G. to testify using a CCTV system, his confrontation clause rights were violated. The court rejected this argument, deciding instead to “join the weight of authority” and hold that Craig survives Crawford. The court went on to find that C.G.’s testimony complied with both Craig and G.S. 15A-1225.1, the statute allowing for CCTV testimony by child victims.
So where are we? Notwithstanding Jackson, prosecutors still may be taking a risk when they seek to have a child victim testify by way of CCTV in a criminal case. Given the importance of the issue I wouldn’t be surprised if we get a higher court opinion, which of course, might come out differently. Also, it’s important to note that Craig pertained to child victims. A lot of people cite Craig as allowing for remote testimony by other types of witnesses, such as those who are elderly, frail, or inconveniently located. But applying Craig—and Jackson—to those scenarios would extend existing law. And given the massive quantity of post-Crawford litigation, it’s probably safe to assume that such an extension will lead to a court challenge.
In my first post on this topic, I set the stage for a discussion about the constitutionality of remote two-way testimony. In my second post, I explored the legal authority on that issue. In this final post, I will introduce two procedures might allow the State to achieve some of the benefits of remote testimony, while protecting the defendant’s confrontation rights.
Limited Two-Way Video Testimony
As discussed in my last post, the law is unsettled on whether two-way remote testimony runs afoul of the confrontation clause and by what standard that determination is to be made. However, one scholar has suggested that remote testimony may be constitutional if the procedure requires unavailability of the witness (as judged under a constitutional standard, not an evidentiary one) and allows for the defendant to be transported to the witness’s location, much in the same way as would be done for a pretrial deposition. Richard Friedman, Remote Testimony, 35 U. Mich. J. L. Reform 695, 704-05 (2002). While likely on more solid constitutional footing, such a procedure may not be feasible because of the significant disruption it would cause to the criminal trial, particularly where the remote location is some distance away. One alternative would be a procedure that allows remote testimony if a defendant makes a knowing, voluntary, and intelligent waiver the right to be present in the remote location. While some defendants may refuse to waive that right, others may be willing to do so. In fact they may be more willing to waive this right to presence than they are to waive their rights under existing notice and demand statutes. A waiver under this procedure would still allow for some form of confrontation whereas a waiver under the notice and demand statutes does not.
Pretrial Depositions
Under the Crawford rule, testimonial statements by witnesses who do not testify at trial may not be admitted unless the State establishes unavailability and a prior opportunity to cross-examine. If a pretrial deposition procedure can be developed to meet the constitutional standard for a prior opportunity to cross-examine, pretrial deposition testimony of laboratory witnesses would be admissible under Crawford when the witness is unavailable. Although the issue has not been tested before the United States Supreme Court, such a procedure offers a significant advantage—from a constitutional standpoint—over remote testimony: the defendant would be present when the deposition is taken and thus would have the opportunity for face-to-face confrontation.
Although North Carolina does not have a statutory procedure for the State to take pretrial depositions in a criminal case, procedures for doing so exist in other jurisdictions. See, e.g., Fed. R. Crim. Pro. 15 (authorizing depositions in “exceptional circumstances”). Additionally, the procedure is not unheard of in North Carolina; in extreme situations, such as when a key witness is ill and cannot travel to trial or is not expected to survive until trial, North Carolina trial judges have exercised their inherent authority and ordered pretrial depositions.
In any procedure allowing for pretrial depositions in criminal cases, certain key features should be considered:
- The defendant should have a right to be present, with counsel, when the deposition is taken.
- The defendant should be afforded full discovery far enough in advance of the deposition so that there will be a meaningful opportunity for cross-examination at the deposition.
- The deposition should be recorded using audio and visual equipment. The addition of a visual component will allow the fact-finder to observe the witness’s demeanor, an observation that is not possible with a written transcript.
- The recording of the deposition must be of sufficient quality for in-court presentation.
- While objections may be made at the time of the deposition, the witness should be required to answer all questions. Or, as an alternative, a judge could attend by remote video connection and rule on objections as they arise.
A key feature of such a procedure is allowing the defendant to be present. When the defendant is on pretrial release, this should present no significant problem in the ordinary case. However, if the defendant is in custody, providing for the defendant’s presence at the pretrial deposition will present logistical and financial issues. Additional features that may be considered include, among other things, the location of the deposition. If held at the witness’s regular place of work, significant efficiencies can be achieved for the State. On the other hand, such a location would increase costs for defendants and counsel; and as noted above, when the defendant is in custody, ensuring the defendant’s presence at the deposition location may be problematic.
Although such a procedure appears promising, it is not without limitation. As noted above, under the Crawford rule, testimonial statements by witnesses who do not testify at trial may not be admitted unless the State can establish unavailability and a prior opportunity to cross-examine. Even if the pretrial deposition satisfies the prior opportunity to cross-examine, the State still must establish unavailability of the witness in order for the witness’s testimonial statements to be admissible under Crawford. The fact that a witness has died, for example, will satisfy this requirement. However, it is unlikely that mere convenience or cost to the State will satisfy the constitutional requirement of unavailability.
2. Administrative Options
Because my focus is on legal issues, I won’t explore the myriad of administrative options that may address the problem at issue, such as regional laboratories.
If you have thoughts about these procedures or any others, please post them.
Category: Procedure, Uncategorized | Tags: confrontation clause, crawford, depositions, remote testimony
In my last post, I set the stage for a discussion about the constitutionality of remote two-way testimony. In this post I will explore the authority bearing on that question.
Guidance from the United States Supreme Court
The question whether remote two-way testimony satisfies the confrontation clause has not been resolved in a case decided by the United States Supreme Court. However, even before Crawford, the Court expressed concern about the constitutionality of such a procedure. In 2002, the United States Judicial Conference submitted to the Court a proposed change to Rule 26 of the Federal Rules of Criminal Procedure that would have allowed for the use of remote testimony in federal criminal trials. Although the Court typically serves as a conduit for proposed rule changes from the Conference to Congress, see Richard Friedman, Remote Testimony, 35 U. Mich. J. L. Reform 695, 695-96 (2002), the Court declined to submit this proposed change. This action is a significant cautionary note regarding the constitutionality of remote testimony.
The proposal submitted by the Conference would have amended Rule 26, making a clarifying change to part (a) and adding a new part as follows:
(b) Transmitting Testimony from a Different Location. In the interest of justice, the court may authorize contemporaneous, two-way video presentation in open court of testimony from a witness who is at a different location if:
(1) the requesting party establishes exceptional circumstances for such transmission;
(2) appropriate safeguards for the transmission are used; and
(3) the witness is unavailable within the meaning of Federal Rule of Evidence 804(a)(4)-(5).
Id. at 699-700.
The Supreme Court submitted to Congress part (a) but declined to submit part (b). In a statement accompanying the transmittal, Justice Scalia—who later authored Crawford and Melendez-Diaz—expressed concern that proposed part (b) violated the confrontation clause. See Amendments to Rule 26(b) of the Federal Rules of Criminal Procedure, Statement of Scalia, J. at 1 (April 29, 2002) (on file with author). Scalia determined that a criminal defendant cannot “be compelled to hazard his life, liberty, or property in a criminal teletrial,” id. at 3, explaining: “Virtual confrontation might be sufficient to protect virtual confrontation rights; I doubt whether it is sufficient to protect real ones.” Id. at 2. As to the distinction between one-way testimony (used in Craig) and two-way testimony, he stated:
I cannot comprehend how one-way transmission (which Craig says does not ordinarily satisfy confrontation requirements) becomes transformed into full-fledged confrontation when reciprocal transmission is added. As we made clear in Craig, a purpose of the Confrontation Clause is ordinarily to compel accusers to make their accusations in the defendant’s presence–which is not equivalent to making them in a room that contains a television set beaming electrons that portray a defendant’s image.”
Id. at 2 (citations omitted). Two other justices—Breyer and O’Connor—dissented, arguing that the proposal was constitutional under Craig.
More recently, in June 2010, the Court denied certiorari in a case that presented an opportunity to address the constitutionality of remote two-way testimony. In Wrotten v. New York, 130 S. Ct. 2520 (2010), the trial court applied Craig and allowed the victim, who was elderly, in poor health, and unable to travel to court, to testify by way of two-way video. Justice Sotomayor agreed with the denial of certiorari because of the procedural posture of the case but noted that the issue was “an important one . . . not obviously answered” by Craig. Id. at 2520 (“[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”).
North Carolina Cases
No North Carolina decisions address the constitutionality of two-way remote testimony.
A Circuit Split
The federal circuit courts are split on this issue. On one side is United States v. Gigante, 166 F.3d 75 (2nd Cir. 1999), a pre-Crawford case. In Gigante, the defendant was an alleged Mafia family boss. The trial court allowed Peter Savino, a key government witness who was in the federal witness protection program and in the final stages of a fatal cancer, to testify remotely. The Second Circuit concluded that Craig did not apply to two-way remote testimony and adopted a lower “exceptional circumstances” standard for such testimony. It concluded that the witness’s illness and participation in the witness protection program, along with his inability to participate in a distant deposition under the federal rules satisfied this standard.
On the other side of the split is United States v. Yates, 438 F.3d 1307 (11th Cir. 2006) (en banc), a post-Crawford case that rejected the Gigante approach. In Yates, the trial court allowed two witnesses in Australia to testify using two-way videoconference. Both were “essential” Government witnesses, unwilling to travel to the United States, and beyond the Government’s subpoena powers. An en banc Eleventh Circuit found error, rejecting the Government’s argument that it should follow Gigante and hold that Craig does not apply to two-way testimony. Id. at 1312-13. The court concluded that under the circumstances, including that a pretrial deposition could have been taken in the defendant’s presence, “the prosecutor’s need for the video conference testimony to make a case and to expeditiously resolve it are not the type of public policies that are important enough to outweigh the Defendants’ right to confront their accusers face-to-face.” Id. The court also noted that the trial judge made no case-specific finding that the case was different from any other prosecution for which two-way video testimony would be more convenient. Id.
The End Result?
As should be clear from the discussion above, the constitutionality of remote two-way testimony is an open question. Note, however, that today’s confrontation clause analysis may not be valid tomorrow. Currently, two significant Crawford cases are pending in the United States Supreme Court. One deals with the testimonial nature of a victim’s statements to responding officers. Michigan v. Bryant (No. 09-150). The second, Bullcoming v. New Mexico (No. 09-10876), deals with substitute analyst testimony. Depending on how the Court rules in these cases, the legal landscape may change. In my next and final post on this issue, I will explore other options might exist for the State to achieve some of the benefits of remote testimony, without the accompanying constitutional risk.
Since the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004), interest has been growing in the use of remote testimony as a method to satisfy the confrontation clause. 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 later decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), held that forensic laboratory reports are testimonial and thus subject to the Crawford rule. The effect of Melendez-Diaz is that absent an exception to the Crawford rule or a waiver of confrontation rights, the prosecution must produce a forensic analyst at trial to overcome a confrontation objection to the admissibility of laboratory reports and chemical analyst affidavits.
The North Carolina General Assembly sought to mitigate the effect of Melendez-Diaz by amending existing and enacting new “notice and demand statutes.” These statutes set up procedures for the State to procure from the defendant a waiver of confrontation clause rights with respect to certain forensic analyses. In a nutshell, they require the State to notify the defendant of its intent to use an analyst’s report as evidence at trial without the presence of the analyst. If the defendant does not timely lodge an objection, the defendant is deemed to waive a confrontation clause objection to the evidence. If the defendant objects, the analyst must be produced at trial. Given that a defendant may have little to lose and much to gain by objecting, it is unlikely that these procedures will obviate the need for analysts to testify in court. This fact, and others, has lead to a renewed interest, at least by prosecutors and other government officials, in remote two-way testimony as a tool to satisfy Crawford. In this post I will set the stage for a discussion about the constitutionality of such a procedure. In my next post, I’ll address that issue directly.
The Right to Face-To-Face Confrontation
As a general rule, the confrontation clause protects the right to face-to-face confrontation. Maryland v. Craig, 497 U.S. 836, 849 (1990); Coy v. Iowa, 487 U.S. 1012, 1016 (1988). This is understood to mean that the witness testifies live at trial in a setting in which the defendant and the witness can see and hear each other. Coy, 487 U.S. 1012.
The Craig Exception
In 1990, the United States Supreme Court carved out an exception to the right to face-to-face confrontation. In Maryland v. Craig, 497 U.S. 836 (1990), a divided 5-to-4 decision, the Court upheld a Maryland statute allowing a judge to receive, through a one-way closed circuit television system, testimony from an alleged child abuse victim. The Court reaffirmed the importance of face-to-face confrontation of witnesses appearing at trial, but concluded that such confrontation was not an indispensable element of the confrontation right. It held that while “the Confrontation Clause reflects a preference for face-to-face confrontation, . . . that [preference] must occasionally give way to considerations of public policy and the necessities of the case.” Id. at 849 (quotation and citation omitted). It went on to explain that the confrontation right “may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Id. at 838 (emphasis added).
As to the important public policy at issue in the case at hand, the Court stated: “a State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers.” Id. at 854. However, the Court made clear that the State must make a case-specific showing of necessity. Specifically, the trial court must (1) hear evidence and determine whether the procedure is necessary to protect the welfare of the child witness; (2) find that the child would be traumatized by the defendant’s presence; and (3) find that the child’s emotional distress “is more than de minimis.” Id. at 855-56. The Court went on to note that in the case presented, the reliability of the testimony was otherwise assured. Although the law prevented a child witness from seeing the defendant while testifying, it required that (1) the child be competent and under oath; (2) the defendant have full opportunity for contemporaneous cross-examination; and (3) the judge, jury, and defendant are able to view the witness while he or she testified. Id. at 851.
Craig was decided before Crawford. Neither the United States Supreme Court nor the North Carolina appellate courts have considered whether Craig survives Crawford. Notably, Craig involved a balancing of interests and rights: the public policy interest in protecting child victims versus a defendant’s confrontation clause rights. Crawford, however, noted that “[b]y replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design.” Crawford, 541 U.S. at 67-68. It also is worth noting that Justice Scalia, the author of Crawford, dissented in Craig. Finally, Craig involved child witnesses who were victims of abuse. The Court has not ruled on whether Craig applies to adult witnesses, who suffered no such abuse and are fully able to testify in court.
Other Established Exceptions
Even Crawford recognized exceptions to the right to face-to-face confrontation. Under Crawford, testimonial statements of witnesses who do not testify at trial may be admitted if the State establishes that the witness is unavailable and that there has been a prior opportunity for cross-examination. Additionally, in post-Crawford cases, the Court has recognized other exceptions, such as when a defendant forfeits his or her confrontation rights through forfeiture by wrongdoing. Giles v. California, 554 U.S. 353 (2008).
Having set the stage for analysis, my next post will explore the constitutionality of two-way remote testimony.
