Wednesday, July 28, 2021
Section 18.2-67.9 of the Virginia Code covers testimony by child victims and witnesses using two-way closed-circuit television. Specifically, subsection (D) states that
The child's testimony shall be transmitted by closed-circuit television into the courtroom for the defendant, jury, judge, and public to view. The defendant shall be provided with a means of private, contemporaneous communication with his attorney during the testimony.
So, what is contemporaneous communication? That was the question addressed by the Court of Appeals of Virginia in its recent opinion in Ruff v. Commonwealth, 2021 WL 3159780 (Va.App. 2021).
In Ruff, Brian Wesly Ruff was convicted of rape and aggravated malicious wounding of his then-seven-year-old daughter, G.R. At trial, while she testified,
G.R. was in an anteroom with the Commonwealth, Ruff's counsel, and a police officer who operated the closed-circuit system. Ruff was able to view the testimony over the closed-circuit equipment and was provided with a direct telephone line connected to a telephone in the anteroom so that he could confer with his counsel during any examination or cross-examination of G.R.
In finding that this procedure was proper under Section 18.2-67.9, the Court of Appeals of Virginia ruled as follows:
Here, the trial court provided Ruff with a telephone on which he could press any two numbers, which would cause the phone to ring in the anteroom so that he could communicate with his counsel. Ruff contends that this was not instantaneous enough to meet the requirements of the statute. We disagree.
Taking Ruff's contentions to their logical conclusion would mean that Ruff should be afforded the opportunity to speak to his attorney at the same moment his attorney is conducting cross-examination. However, if testimony were being adduced in the courtroom with Ruff sitting at the defendant's table, he would not be able to speak to his attorney while counsel was asking questions of the witness. As the trial court noted, “there's no way that you can be asking a question and listening at the same time.” Practically speaking, instantaneous communication during cross-examination is not possible in a courtroom and is certainly not required in order to meet the requirement of contemporaneous communication.