Taylor Maurer, Law & Public Policy Scholar, JD Anticipated May 2022
Over the past summer, courthouses across the United States slowly began to reopen after having been closed since March of last year. The U.S. Supreme Court remains closed to the public, while the majority of states have suspended in-person proceedings either statewide or at the local level. Individuals facing criminal charges have been waiting behind bars because they have yet to be granted an arraignment and request bail. The simultaneous protection of the constitutional rights of an accused to confrontation, a speedy trial, and a trial by jury appears to be at odds with the public health restrictions put in place to combat the Covid-19 pandemic. Due to the nature of Covid-19 lockdowns, the effective enforcement of one of those constitutional rights may result in an inability to protect another. With the advanced development of closed-circuit television (CCTV) and increased use of videoconferencing during the pandemic, virtual trials seem like a practical solution for some of these concerns. However, prosecutors are anticipating appeals based on the right to confrontation as it operates (or doesn’t) in a virtual trial and judges are weighing whether travel-related, immunodeficiency, or general safety concerns surrounding Covid-19 establish a sufficient foundation for alternatives to in-person proceedings. In light of those considerations, case law and procedural rules governing the right to confrontation and the use of technology in the courtroom may indicate whether virtual trials are a constitutionally viable option.
Courts consistently articulate a strong preference for face-to-face confrontation at trial. In Maryland v. Craig, the Supreme Court explained that the essential, implicit elements of the confrontation right are (1) that testimony be given under oath, (2) that the defendant have an opportunity to contemporaneously cross-examine adverse witnesses, (3) that the factfinder and defendant possess the ability to observe demeanor evidence, and (4) that examination of a witness result in a reduced risk that such a witness will wrongfully implicate an innocent defendant when testifying in his presence. It is crucial that those elements be preserved as much as possible when assessing alternatives to live, in-person testimony given in the courtroom. The first, second, and even the fourth elements described above do not necessarily depend upon the location of the testimony, whether it be in court or from a remote location. The third element, however—giving the jury an opportunity to judge the witness’s demeanor—implicates the physical location of the witness relative to the factfinder and raises the question as to whether the witness’s “virtual presence” is enough.
As stated above, the right to face-to-face confrontation is preferred, but not absolute. As early as 1895, the U.S. Supreme Court held that the right of confrontation must occasionally give way to considerations of public policy and the necessities of the case. The most well-established exceptions to the right to confrontation are dying declarations and forfeitures by wrongdoing. It is worth noting that the admission of dying declarations is directly contrary to the goals of the Confrontation Clause. Dying declarations are rarely made in the presence of the accused, such statements are made without any opportunity for the defendant to cross-examine the declarant, and the witness who makes such a statement is not brought face-to-face with the factfinder. And yet, dying declarations have historically been treated as competent testimony. They are admitted as an exception to the rule, simply based on the necessities of the case, and in order to prevent a manifest failure of justice.
However, the Supreme Court has also rejected the idea that the text of the Sixth Amendment suggests any open-ended exceptions to the confrontation requirement to be developed by the courts, other than those exceptions established at the time of the amendment’s inception, which the Court identified as being limited to the use of ex parte examinations and testimonial hearsay.
Federal law expressly provides that the right to confrontation is subject to additional hearsay exceptions. For example, in Barber v. Page, the Supreme Court held that an exception exists where the witness has testified previously and was subject to cross-examination. Further, in Williams v. Oklahoma, the Court held that a defendant may waive his right of confrontation by stipulating to the admission of certain evidence. Similarly, a defendant who pleads guilty also waives his right of confrontation, as was the case in Boykin v. Alabama.
Given the number of exceptions within the case law, the word “confronted” cannot simply refer to face-to-face confrontation, or else the Confrontation Clause would prohibit the admission of any accusatory hearsay statement made by an absent declarant—a declarant who is undoubtedly as much of an adverse witness for the defendant as someone who testifies in person. Courts have, however, repeatedly dodged the question of whether there are any categorical exceptions to face-to-face confrontation, with the slight exception of Maryland v. Craig.
In Craig, the Supreme Court created the first standard for evaluating the use of closed-circuit television (CCTV) systems as a substitute for face-to-face confrontation, which the Court developed in accordance with the concept of necessity. Specifically, the Court held that such an exception applies with respect to the testimony of child abuse victims who are too traumatized to testify in the presence of a defendant in the courtroom. As was the case in Craig, the 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 the testimony’s reliability is otherwise assured.
The Second Circuit subsequently expounded upon the Craig standard in United States v. Gigante. In that case, the Second Circuit held that the Craig test need only apply to constrain the use of one-way CCTV systems, and need not prohibit the use of two-way CCTV systems because the use of two-way systems offers greater protections for confrontation rights. Several district courts have followed suit and applied the same standard used for purposes of assessing whether Rule 15 depositions may be taken when deciding whether to permit testimony via CCTV. Those courts have decided to allow such testimony only when (1) the witness’s testimony is material, (2) the movant has made good-faith and reasonable efforts to obtain the witness’s presence and is unable to do so, and (3) allowing testimony by such means furthers the interests of justice. However, most other federal circuits have rejected the holding of Gigante and have therefore agreed to follow the Craig standard whenever there is a denial of face-to-face confrontation.
A few states have enacted “conditional examination” statutes that give the courts the discretion to authorize the use of videoconferencing for testimonial purposes. For example, Rule 1.05 of the Minnesota Rules of Criminal Procedure says that interactive video teleconference (ITV) may be used to conduct proceedings (1) when no judge is available in the venue county, (2) when the defendant is in custody and is being held in a location other than the venue county, or (3) in the interests of justice. Still, other states with conditional examination statutes only allow this procedure to be employed when the relevant witnesses are appearing on behalf of the defendant. Even defendants, of course, must still follow Rule 15 of the Federal Rules of Criminal Procedure, and demonstrate a witness’s unavailability and materiality to their case in order to move for admission of that witness’s testimony via CCTV.
Although multiple courts have ruled that two-way CCTV is a reliable means of conducting witness examinations no court has yet acknowledged that the use of such systems is constitutionally equivalent to face-to-face confrontation. Therefore, as the Eighth Circuit has held, the procedure must be subject to a finding of necessity and a compelling state interest before it can be used. Multiple decisions have expounded upon these concepts in the context of confrontation. For instance, federal courts and state courts have both allowed the use of two-way video testimony for witnesses too ill to travel.
Necessity may also be proven where witnesses are unavailable for trial. In People v. Giurdanella, the Appellate Division of the New York Supreme Court permitted a witness to provide testimony via video at trial because the Egyptian government prevented him from returning to the United States. Similarly, the Fourth Circuit has held that the security of the Nation is one of the most compelling government interests that may justify the use of live, two-way video for witness testimony. Frugality, on the other hand, while an important public policy issue, will not alone validate the denial of the right to face-to-face confrontation.
In 2002, the Advisory Committee on the Criminal Rules suggested a revision to Rule 26 of the Federal Rules of Criminal Procedure that would have allowed testimony by means of two-way video conferencing. However, when the Supreme Court transmitted a series of proposed amendments to the Federal Rules of Criminal Procedure to Congress, the Court declined to send the proposed revision to Rule 26. Justice Scalia filed a statement explaining that action, in which he stated that the proposed Rule 26(b) “[was] of dubious validity under the Confrontation Clause…” He remarked that the proposed amendments were “contrary to the rule enunciated in Craig” in that they would not limit the use of remote testimony to “instances where there has been a ‘case-specific finding’ that it is ‘necessary to further an important public policy.’” Therefore, Rule 26 was not revised to allow testimony by two-way video conference.
The Court’s action does not, however, end the matter. It is possible that Congress will restore the deleted amendment, adding it to the Rules by statute. We have seen this sort of development before. In 1994, the Supreme Court altered a proposed amendment to Rule 412 of the Federal Rules of Evidence—the “rape shield” rule—deleting a clause that would have extended the rule to civil cases. Congress then passed a statute promulgating an amended Rule 412, in the same form in which it had been submitted to the Court. Even if this does not happen in the case of video-teleconferencing technology, the Advisory Committee for the Rules of Criminal Procedure may in time draft a revised proposal that is more likely to pass Constitutional muster.
Given the historical reluctance to declare categorical exceptions to the implicit rights that exist under the Confrontation Clause of the Sixth Amendment, it would seem that the use of two-way videoconferencing to conduct full trials and/or hearings would, at most, be assessed on a case-by-case basis. There is clearly a compelling state interest in keeping the public safe and healthy during the current Covid-19 pandemic. When combined with the fact that videoconferencing technology preserves the majority of those rights inherent to the Confrontation Clause, according to the case law, the importance of that public policy may be sufficient to meet the requisite showings of reliability and necessity, and thus to avoid violations of the Sixth Amendment. However, if the newly-confirmed Justice Amy Coney Barrett, along with the other conservative Justices, follow in the footsteps of her former originalist mentor, Justice Scalia, then our court system may not yet be ready to accept virtual confrontation as a substitute for the real thing. As Justice Scalia wrote in his response to the proposed amendment to Rule 412: “Virtual confrontation might be sufficient to protect virtual Constitutional rights; I doubt whether it is sufficient to protect real ones.”