Monday, July 20, 2020

COVID And Confrontation

The Tennessee Court of Criminal Appeals has remanded an order allowing remote testimony in a murder case

On July 12, 2019, the State filed a motion requesting that four of the prosecution’s witnesses, all of whom were from Virginia, be allowed to testify via teleconferencing technology, namely “Microsoft Teams,” the software used by the District Attorneys General Conference.

The trial court

So to respond to the laser point that I made at the very beginning, is this gentleman going to 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. I believe he receives exactly the same rights as if . . . the witnesses were live testifying in the courtroom.

I will allow the witnesses to testify by [teleconferencing technology] .

The constitutional issue

On appeal, the Defendant contends that allowing witnesses in a criminal prosecution to testify against him via teleconferencing software violates his right to confrontation under the Sixth Amendment to the United States Constitution and Article I, section 9 of the Tennessee Constitution. The State counters that the Tennessee Constitution does not afford any greater protections than the United States Constitution and that the United States Supreme Court has held that teleconferencing software does not violate the Confrontation Clause where there is a sound public policy reason to use such technology. See Maryland v. Craig, 497 U.S. 836, 855-57 (1990). The State further contends that those public policy reasons exist in this case, so the trial court did not err when it held that the four witnesses could testify via teleconferencing software.


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.

Having so decided, we remand this case back to the trial court to make a specific finding, using the law as articulated in Craig, about the public policy implications triggered by the circumstances of each of the witnesses herein.

...we conclude that the standard as articulated in Maryland v. Craig, 497 U.S. 836 (1990), should extend to two-way video conferencing technology. As such we reverse and remand this 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.

(Mike Frisch)

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