Criminal Justice Insider

By and large, trials have resumed in the State of New York. At the state level, Chief Judge Janet DiFiore has announced that jury trials are being conducted in numerous upstate counties, with plans to expand further in the coming days. In federal courts, a criminal bench trial was scheduled to commence in the Eastern District of New York if not for a last minute plea agreement. Despite the pandemic, the wheels of justice continue to turn.

Simply because trials have resumed, it does not mean it is business as usual. Courthouse personnel are still limited by various pandemic protocols and there is a strong preference to reduce traffic in the courthouse to a functional minimum. Accordingly, trial judges are considering permitting witnesses to testify remotely by video-conference software. This practice, though perhaps necessary from a public health perspective, raises both practical and constitutional considerations.

As an initial matter, there is an open question as to whether testimony of a witness by video-conference software satisfies a defendant’s right to confrontation guaranteed by the Sixth and Fourteenth Amendments. In the past, substitutes for face-to-face testimony by witness have not fared well before the Supreme Court. For example, in Maryland v. Craig, 497 U.S. 836 (1990), the Supreme Court weighed whether a minor victim of sexual abuse could testify by one-way video link against the defendant. The Maryland Supreme Court held that such an arrangement to be unconstitutional. In affirming this holding, the Supreme Court found that a substitute for face-to-face confrontation of a witness would be constitutionally permissible only where: (1) there was a case-specific finding of necessity; (2) that the necessity was based on an important state interest; and (3) that the reliability of the testimony can be assured. Ultimately, the Supreme Court held that, in unique and rare cases, the confrontation rights can be abridged with witnesses allowed to testify remotely; however, the prosecutors in Craig did not meet the burden necessary for such measures.

Of course, with the ubiquity of video-conference technology and the onset of a global pandemic, times have radically changed. While the matter has not yet been definitively ruled upon, it would not be hard to imagine the Supreme Court finding that the state interest in curbing the pandemic outweighs the defendant’s Sixth and Fourteenth Amendment rights to live confrontation of a witness.

Assuming, arguendo, it is constitutionally permissible for a witness in a criminal case to testify by video, there are serious practical concerns that must be addressed by any defense attorney who will be conducting such a cross-examination. These include:

• How will the judge or jury view the witness?
• Will they be able to clearly see the demeanor of the witness as they are cross-examined?
• Will technical delays hurt the rhythm and pace of a cross-examination?

Of equal concern, how will defense counsel present impeachment evidence such that the witness will not get to review it in advance? If defense counsel is also remote (and technically proficient), presumably they can do a “screen share” where defense counsel presents the document to the witness at the moment of confrontation just as they would if the witness were present in the courtroom. If a defense counsel is in a courtroom and the witness is remote, this presents a greater challenge. It also precludes counsel from presenting exhibits in paper form.

Similarly, how can defense counsel ensure that the witness is not being coached off camera or by text message? How can the defense counsel prevent a witness from impermissibly reviewing notes or documents not visible on camera? Most video-conference setups give a viewer a view of the upper torso of a witness but not what a witness is doing with their hands or what the witness is viewing just below or outside the camera’s purview.

These issues present thorny challenges to the already difficult crucible of cross-examination in a criminal case. One potential solution is to have a lawyer or legal staff in the room with the witness when they are testifying remotely. This solution can conflict with policies and personal preferences focused on minimizing the spread of COVID-19.

A defense counsel is best served by raising these issues at the earliest possible point to avoid serious logistical challenges to the cross-examination of remote witnesses.