Two-Way Remote Testimony: Will It Pass Muster? (Part I)

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.

3 thoughts on “Two-Way Remote Testimony: Will It Pass Muster? (Part I)”

  1. The General Assembly attempted to codify these remote testimony principles in 2009 in G.S. 15A-1225.1 and G.S. 15A-1225.2. Jessie may be planning to mention these statutes in Part II.


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