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.
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.