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Video testimony and the Confrontation Clause

In a case that may bear on the potential use of videoconferencing at criminal trials as the COVID-19 pandemic grinds on, the Tennessee Court of Appeals, in State v. Dennis Lee Seale, invalidated a trial court’s order allowing the prosecution’s out-of-state witnesses to testify using teleconferencing technology.

The trial court decided the defendant would “receive exactly what he deserves under his right of confrontation, not only to observe and watch the witnesses who are testifying against him, but also have the right to cross-examine those witnesses …. exactly the same rights as if . . . the witnesses were live testifying in the courtroom.”  (Slip op. at 3-5). The court of appeals says not so fast:

While we concede that two-way videoconferencing more closely approximates face-to-face confrontation, it is in no way constitutionally equivalent to the face-to-face confrontation envisioned by the Sixth Amendment. We respectfully but firmly disagree with the trial court’s finding that “if the software works the way it should work, will be, in my opinion, as good as the person being here live.” Further, two-way video conferencing allows for the witness to testify remotely and not come to the courthouse at all. The physical presence of the witness in the courthouse is, itself, a significant moment for the witness, during which any witness in a criminal proceeding understands the wide ranging implications their testimony may have on the life of another. Foregoing in person testimony potentially removes a witness’s understanding of the enormity of those implications. We are not inclined to remove the requirement of physical presence of a witness in the courthouse, save for instances in which the most necessary public policy considerations arise. We hold that face-to-face confrontation in Tennessee means simply that, face-to-face communication, unless there is some greater public interest that overrides the directives of our great state’s constitution. (Slip op. at 11-12).

The court also held, however, that the standard for departing from strict face-to-face confrontation articulated in Maryland v. Craig, 497 U.S. 836 (1990), should extend to two-way video conferencing technology, remanded the case to the trial court for “a case-specific and witness-specific determination that the denial of the defendant’s confrontation right is necessary to further an important public interest.” (Slip op. at 12).

H/t Bill T.

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