From [HERE] II. Virtual Criminal Trials Cannot Overcome Key Constitutional Hurdles

To keep the wheels of justice turning, most courts have been conducting a host of proceedings by video or teleconference, including arraignments, guilty pleas, and sentencing, with the consent of the defendant. This is a significant change for the legal system, where longstanding rights entitle defendants to be charged, tried, and judged by people they can look in the eye.

While no court has yet conducted a full jury trial remotely, there have been clear moves in that direction. For instance, in a statewide order staying all jury trials, Chief Justice Tani G. Cantil-Sakauye of California noted, "Courts may conduct such a trial at an earlier date, upon a finding of good cause shown or through the use of remote technology, when appropriate." 55Likewise, the U.S. District Court for the Southern District of New York

However, while "jury trial by video" may be permissible in the civil context, it raises grave constitutional concerns when applied to criminal proceedings. The arguments against remote testimony in criminal trials are plentiful. Remote testimony may violate defendant's right to be confronted with the evidence against him or her because the testimony is not "face-to-face Remote testimony cannot ensure truthfulness to the same extent as requiring the witness to testify live before the defendant. Remote testimony limits the information available to defendants when assessing juror bias. And remote testimony, as opposed to live testimony, does not provide the court and jury with the same opportunity as does live testimony to assess the demeanor and truthfulness of the witness. Each of these issues is addressed in turn below.

A. Criminal Defendants Have a Fundamental Right to Physically Face Their Accuser

The Sixth Amendment's Confrontation Clause assures the right of an accused "to be confronted with the witnesses against him." 57The U.S. Supreme Court has declared that face-to-face confrontation forms "the core of the values furthered by the Confrontation Clause. 58This core value serves dual purposes. First, facing one's accusers deters false accusations, as it is far more difficult to lie when looking directly upon the accused. 59Second, face-to-face confrontation enables jurors to "examine the demeanor of the witness as the witness accuses the defendant, as well as the demeanor of the defendant as he hears the accusations. ..." 60This, in turn, enables jurors to more properly assess credibility. 61

Whether the Confrontation Clause forbids virtual trials represents new terrain. No authority exists -- in the federal Constitution or most state analogues -- that outright prohibits the practice. On the other hand, no authority explicitly permits them, either. 62Thus, in assessing whether an appellate court would affirm a verdict arising out of a remote video proceeding, we must consult analogous precedents involving videoconferencing.

i. The Supreme Court's Guiding Principles

The Supreme Court encountered the issue of live, audiovisual testimony on two occasions. In Coy v. Iowa, the Supreme Court reversed a sexual-assault conviction, concluding that the lower court's decision to permit two child witnesses to testify behind a large screen where they could not see the defendant violated the defendant's confrontation rights. In reaching this conclusion, Justice Scalia, writing for the majority, stated: "We have never doubted ... that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact." 63He further stated that "the irreducible literal meaning of the Clause" is "[the] right to meet face to face all those who appear and give evidence at trial." 64According to Scalia, "there is something deep in human nature that regards face-to-face confrontation between accused and accuser as 'essential to a fair trial in a criminal prosecution,'" 65in that a witness "may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts." 66He further added, "It is always more difficult to tell a lie about a person 'to his face' than 'behind his back.' In the former [case], even if the lie is told, it will often be told less convincingly."

Despite this strong language, however, the right to confrontation is not absolute." In Maryland v. Craig," the Court held that the Confrontation Clause does not prohibit a state from using one-way closed-circuit television to capture testimony of a child witness in a child [*28] abuse case - even where the child cannot view the defendant while testifying.

The Court declared that, "[a]lthough face-to-face confrontation forms 'the core of the values furthered by the Confrontation Clause; ... it is not the sine qua non of the confrontation right." 71Rather, the Court found that the Confrontation Clause "reflects a preference for face-to-face confrontation at trial;' which "must

Applying these principles, Craig created a two-part test for determining whether an exception to the Confrontation Clause's face-to-face requirement is warranted: " [A] defendant's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where [1] denial of such confrontation is necessary to further an important public policy and [2] the reliability of the testimony is otherwise assured."

With respect to the first prong, Craig added the additional requirement of a " case-specific" finding of necessity. Thus, the Supreme Court indicated a willingness to retreat from a literal application of the Sixth Amendment -- but only in "narrow circumstances" and on a "case-specific" basis."

ii. A Split Amongst the Circuit Courts

Lower courts do not agree on how to apply the foregoing precedent. Some federal courts view the Confrontation Clause as guaranteeing the defendant a general right to contemporaneously cross-examine adverse witnesses. 76Other courts provide a more specific right to examine witnesses face-to-face in the defendants' physical presence. 77Whether a court is inclined to permit remote prosecution-witness testimony depends, in part, on the level of significance it attaches to the face-to-face component of the Sixth Amendment.

For instance, in Gigante, 78the Second Circuit found no violation of a defendant's Confrontation Clause rights when the trial court permitted a mob informant dying of inoperable cancer to testify from a remote location by two-way, live videoconferencing technology. 79While acknowledging that in-court testimony may have "intangible elements ... that are reduced or even eliminated by remote testimony," the court rejected the notion that the defendant was entitled to face his accuser "in the same room." 80Instead, the Court held that the two-way videoconferencing procedure "preserved the face-to face confrontation celebrated by Coy."

The Eleventh Circuit came to the opposite conclusion in Yates. There, the trial court's decision to allow two Australian nationals to testify remotely from Australia against two defendants in a criminal trial in Alabama violated the defendants' Confrontation Clause rights, notwithstanding that the witnesses were beyond the government's subpoena powers. 82Applying the Craig test, the court found that confrontation was not "necessary." Specifically, it found that, although "presenting the fact-finder with crucial evidence is, of course, an important public policy, . .. the prosecutor's need for the videoconference testimony to make a case and to expeditiously resolve it are not the type of public policies that are important enough to outweigh the defendants' rights, to confront their accusers face-to -face." 83The court noted that a Rule 15 deposition in Australia with all necessary parties was a potential alternative, which would have preserved the defendants' confrontation rights.

iii. Application to the Coronavirus Pandemic

Precedent suggests that traditional constitutional rights (such as confrontation) can be satisfied or modified if video conferencing satisfies other sufficiently important interests. Of course, existing confrontation clause jurisprudence did not consider the scope of a national emergency like COVID-19. The challenges posed by the virus -- i.e., the continued operation of the judiciary during a time when in-person jury trials could be deadly -- are certainly extreme. Keeping participants alive is indeed a public policy of prime importance.

But Craig requires more. It requires that any use of remote testimony be individually considered on a "case- specific" basis. Categorical assessments are simply not permitted. Any attempt by a court to impose a blanket rule, e.g., one which permits virtual testimony in all cases during the pandemic, would run afoul of this constitutional principle.

This requirement is no afterthought. The Supreme Court has rejected attempts to deprive defendants of face-to- face confrontation based on such blanket rules. For instance, in 2002, the Court considered a proposed amendment to Rule 26 of the Federal Rules of Crinunal Procedure that would have explicitly permitted video testimony in "exceptional circumstances." 85Under Proposed Rule 26(6), federal courts would have been able to authorize two-way, live videoconferencing technology from a remote location in criminal cases "in the interest of justice" when the requesting party established (1) "exceptional circumstances for such transmission," (2) the transmission used "appropriate safeguards," and (3) the witness was otherwise "unavailable" to attend the trial in person. 86The Court declined to adopt the proposal, however, for failure to "limit the use of testimony via video transmission to instances where there has been a case-specific finding that it is necessary to further an important public policy." The majority appeared to consider a separate statement filed by Justice Scalia, wherein he indicated that the proposed amendment was of "dubious validity under the Confrontation Clause." 87 He observed that " [v]irtual confrontation might be sufficient to protect virtual constitutional rights. I doubt whether it is sufficient to protect real ones." 88A court order that permits remote video trials during a pandemic -- while well-meaning -- would fail to meet this high bar.

It must also be noted that the diversity of state constitutions means that any analogy to the Confrontation Clause will be inapplicable in some states -- especially states whose highest courts have disagreed with Craig. For instance, the Illinois Supreme Court held, "[W]e conclude that the confrontation clause of the Illinois Constitution provides that a defendant is entitled to a face-to-face confrontation with a witness." 89Virtual trials are plainly unconstitutional in such states on separate grounds, irrespective of Supreme Court precedent.

iv. Case Law on Unavailability Provides Additional Guidance

Case law concerning the treatment of sick witnesses provides further guidance. In very limited circumstances, prosecution witnesses have also been permitted to testify remotely due to severe illness. No court has permitted virtual testimony based on the prospect that a witness will become ill in the future.

To the contrary, courts typically squabble over the extent and duration of the illness necessary to evidence unavailability. For example, in Gigante, Peter Savino, "a former associate of the Genovese family," was "in the final stages of an inoperable, fatal cancer, and was under medical supervision at an undisclosed location." 90After hearing testimony from physicians, the trial judge found that it would be medically unsafe for the witness to travel to New York for the trial, and allowed him to testify via two-way video.

Similarly, in Horn v. Quarterman, 92the Fifth Circuit allowed remote two-way testimony by a witness who was terminally ill, hospitalized for liver cancer, and [*29] not expected to improve. The Court found that, "after discussing Birk's condition with Birk's doctor, that use of the unorthodox procedure was necessary, and emphasized that other aspects of the Confrontation Clause were maintained." On that bas is, it found that the "state court

Nobody seriously disputes that witnesses suffering from the coronavirus and confined to a hospital may be permitted to testify remotely. But current proposals to conduct virtual trials make an additional logical leap. They permit remote testimony for witnesses that are not yet sick -- but merely risk becoming sick if they provide in-court testimony. Such speculation is insufficient to establish unavailability.

B. Defendants Have a Right to Participate in Their Own Defense

A criminal defendant's right to be present at his trial is "[o] ne of the most basic of the rights guaranteed by the Confrontation Clause." 94This right is closely tied to an accused's right to confront witnesses as he must necessarily be in the courtroom to obtain the face-to-face confrontation of the evidence against him contemplated by the Sixth Amendment. 95The defendant's right is also protected, in some situations, by the Due Process Clause. The Supreme Court has explained that a defendant has a due process right to be present at a proceeding "whenever his presence has a relation, reasonably substantial, to the fulness [sic] of his opportunity to defend against the charge .... [T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." 96Additionally, the defendant's presence is also often mandated by court rule. For instance, of sets forth the Federal Procedure circumstances in which the defendant's presence is required, not required, and can be waived.

Remote video trials, where the court conducts the proceedings over an online webinar, raise several issues for a defendant's right to be present.

The Right to Be Present, Like the Right to Confront, Does Not Meet the Craig Bar

First, there is the question of whether appearing by video on a webinar would qualify as being present within the meaning of the Sixth Amendment. Though Justice Scalia, among others, argued that testimony via videoconference "improperly substitute[ed] 'virtual confrontation' for the real thing required by the Confrontation Clause in a criminal trial;" 98the Craig decision again clarified that the Confrontation Clause does not guarantee criminal defendants an absolute right to a face-to-face meeting with the witnesses against them. Thus, a remote video trial, in the absence of case specific findings of necessity, would likely violate a defendant's rights to be present for the same reasons as his or her confrontation rights. [MORE]