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

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.

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