The Volokh Conspiracy
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COVID-19 and the Confrontation Clause
Is testimony over Zoom consistent with a criminal defendant's Constitutional rights?
The New York Times' Adam Liptak has an interesting "Sidebar" column on a case raising the question of whether a court's decision to allow a witness to testify over Zoom violated a criminal defendant's rights under the Confrontation Clause.
In March 2021, a year into the coronavirus pandemic, a key witness in a criminal case in a federal court in New York was allowed to testify remotely, from his lawyer's office in California. The cross-examination was marred by technical glitches and the stilted awkwardness familiar to anyone who has participated in a Zoom call.
The testimony helped convict two defendants of bank fraud. This month, they asked the Supreme Court to decide whether the remote testimony had run afoul of the Sixth Amendment, which guarantees a criminal defendant the right "to be confronted with the witnesses against him." . . .
The case concerned credit card transactions for marijuana dispensaries. Among the witnesses was Martin Elliott, a Visa executive who was 57 and had hypertension and a heart arrhythmia and also helped care for his mother-in-law. Judge Jed S. Rakoff, of the Federal District Court in Manhattan, granted the witness's request to testify remotely in light of his health and family obligations.
Everyone else — the judge, the lawyers, the jurors, court staff and 15 other witnesses — came to court in person. The two sides dispute how important Mr. Elliott's testimony was, but a prosecutor made 42 references to information about Visa in the government's closing argument.
The defendants were convicted and, relying upon its own precedent in United States v. Gigante, the U.S. Court of Appeals for the Second Circuit affirmed. Under Gigante, remote video-conference testimony is permissible under "exceptional circumstances" where the "interest of justice" favors it. Some other circuits to have considered the question (such as the 11th Circuit) have gone the other way, however. A cert petition in the Second Circuit case is pending.
As Liptak notes, back in 2002 the Supreme Court rejected a proposed revision to the Federal Rules of Criminal Procedure that would have allowed video-conference testimony:
In March 2021, a year into the coronavirus pandemic, a key witness in a criminal case in a federal court in New York was allowed to testify remotely, from his lawyer's office in California. The cross-examination was marred by technical glitches and the stilted awkwardness familiar to anyone who has participated in a Zoom call.
The testimony helped convict two defendants of bank fraud. This month, they asked the Supreme Court to decide whether the remote testimony had run afoul of the Sixth Amendment, which guarantees a criminal defendant the right "to be confronted with the witnesses against him."
Justice Scalia also dissented in Maryland v. Craig, in which the Supreme Court, 5-4, allowed a child could testify via video-conference in the trial of their alleged abuser.
We will see whether the Supreme Court revisits the question again.
