New Case: Confrontation, Craig and Two-Way Television

The Eighth Circuit recently held in U.S. v. Bordeaux (here and here), that testimony by a victim in a criminal trial via two-way closed circuit television must be scrutinized under the Craig factors to determined if it comports with the Confrontation Clause.  The Eighth Circuit thus disagreed with the Second Circuit's reasoning in United States v. Gigante, 166 F.3d 75 (2d Cir.1999), cert. denied 528 U.S. 1114 (2000). In Gigante, the Second Circuit stated that "because [the district judge] employed a two-way system that preserved the face-to-face confrontation ..., it is not necessary to enforce the Craig standard in this case." Id. at 81.  Responding to Gigante, the Eighth Circuit stated:  "[T]wo-way closedcircuit television is not constitutionally equivalent to a face-to-face confrontation. 'Confrontation' through a two-way closed-circuit television is not different enough from 'confrontation' via a one-way closed-circuit television to justify different treatment under Craig. It is true that a two-way closed-circuit television creates an encounter that more closely approximates a face-to-face confrontation than a one-way closed-circuit television does because a witness can view the defendant with a two-way system. But two-way systems share with one-way systems a trait that by itself justifies the application of Craig: the 'confrontations' they create are virtual, and not real in the sense that a face-to-face confrontation is real.  The virtual 'confrontations' offered by closed-circuit television systems fall short of the face-to-face standard because they do not provide the same truth-inducing effect. The Constitution favors face-to-face confrontations to reduce the likelihood that a witness will lie. 'It is always more difficult to tell a lie about a person 'to his face' than 'behind his back." ' Coy v. Iowa, 487 U.S. 1012, 1019 (1988). Given the ubiquity of television, even children are keenly aware that a television image of a person (including a defendant in the case of a two-way system) is not the person something is lost in the translation. Thus, a defendant watching a witness through a monitor will not have the same truth-inducing effect as an unmediated gaze across the courtroom."  [Mark Godsey]