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Remote testimony

By Richard D. Friedman

Here's a belated report on a recent development in a long-standing issue.  Last month, the Supreme Court denied certiorari in New Mexico v. Schwartz, No. 14-317.  The petition presented the issue whether the confrontation right bars the presentation, over the accused's objection, of testimony taken, by two-way video, from a witness in a remote location.  But the case was not a good vehicle for presenting this issue, because the opinion of the New Mexico Court of Appeals turned on narrow questions of fact rather than on any broad question of principle.  It's an important issue, and sooner or later I hope the Supreme Court addresses it squarely.  I wrote on it years ago, pre-Crawford, in a piece titled Remote Testimony, 35 U. Mich. J. L. Ref. 695 (2002).  I'm going to want to think about the issue more; for now, I will offer a few thoughts and ask a question on which perhaps readers can shed some light.

The basic question is whether remote video testimony should ever be allowed over the accused's objection.  To take the strongest case, assume that the witness cannot feasibly be brought to or near the place of trial and that the accused cannot be brought to where the witness is; this may happen, for example, if the witness is in custody in a foreign jurisdiction.  Assume also that transmission is done as well as can be:  Crisp video, clear audio, no noticeable delays, the witness and accused each able to see each other, precautions taken to ensure that no one is able to give the witness signals or distract her.  So assuming all this, should the remote testimony be allowed though the accused objects on confrontation grounds?

The Confrontation Clause issue is not, or at least is not primarily, whether the ability of the trier of fact to assess the testimony is impaired by the fact that the witness is not in the courtroom.  It's a longstanding principle that, if the witness is unavailable at trial, testimony taken subject to confrontation at a prior proceeding may be introduced as a second-best substitute -- and of course until relatively recently the method by which the prior testimony was presented was almost always someone reading a transcript of it, which gives the trier of fact no benefit of demeanor evidence at all.

Rather, the question is whether confrontation between the witness on the one hand and the accused and his attorney on the other is undermined.  In 2002 (before Crawford), when the Supreme Court, by a 7-2 vote, declined to transmit to Congress an amendment to Fed. R. Crim. P. 26 that would have authorized remote testimony in some circumstances, Justice Scalia issued a statement that included the wonderful line, "Virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones."  I don't think, though, that there is any principle that clearly makes it impossible to count confrontation through video transmission as the equivalent of in-court confrontation, any more than if witness and accused can see each other only through glasses.  I believe the issue should depend on empirical questions.  In my 2002 article, I asked two such questions:  

First, even with two-way transmission, would the distance and sense of insulation diminish the sense of confrontation--not an idly chosen term--that a prosecution witness faces when testifying against an accused? Second, would defense counsel be impaired to any significant degree in cross-examining such a witness by the sense of distance and by the delay in transmission that, even with up-to-date technology, is still noticeable?

I still think those are the questions, except that, unless I am mistaken, in most cases use of good technology will prevent any noticeable delay in transmission.  I think that before assuming that remote testimony is an adequate substitute for in-court confrontation, we should assure ourselves that the answers to both questions are negative.  As of the time I wrote the 2002 article, I was not able to find any studies that bore closely on these issues.  (I cited a few that bore rather distantly on them.) So that's my question:  Does anybody know of any research that helps answer these questions?

If the answers are indeed negative, then I think that remote testimony could be a great thing in some cases, making it far easier to provide confrontation than it otherwise be (and likely making courts more willing to require confrontation).  There would still be three important sets of issues to resolve, and for now I won't add more on these to what I said in my 2002 article:  (1) In what circumstances should the witness be deemed sufficiently unavailable to make remote testimony?  (I argued in the 2002 article that a rule on remote unavailability needs its own standard of unavailability, rather than incorporating the one in Fed. R. Evid. 804(a)). (2) In what circumstances should video confrontation not be deemed satisfactory, even though the witness is unavailable to testify at trial, because the accused  and counsel can be brought face-to-face with the witness.  (3) Assuming remote testimony is to be allowed in the given case, what quality standards must it satisfy?

Whatever the rule with respect to prosecution testimony, it seems to me that courts should be receptive, in appropriate cases, to remote testimony offered by the accused.  The confrontation right is not symmetrical, and it does not constrain the defense's offer of useful evidence.

Full post as published by The Confrontation Blog on March 28, 2015 (boomark / email).