Does videoconferencing in the courtroom still allow the defendant to exercise
their right to confront their accuser? That is the question
Attorney Ian Friedman and co-author Thomas Moran, a 3L student at the Cleveland-Marshall College
of Law, examine in a recent piece for
Attorney at Law Magazine titled "'Your Honor, We Next Call to the Stand in Taiwan …
': Videoconferencing & the Confrontation Clause."
Understanding The Sixth Amendment
The roots of our right to confront our accusers face-to-face go back as
far biblical references, but in the constitution, this right is codified
in the Sixth Amendment. As Friedman and Moran write: "The confrontation
clause of the Sixth Amendment was designed to ensure that the accused
was afforded a meaningful opportunity to confront his accusers in court,
thereby permitting the trier of fact to assess the validity of the accusations."
As technology advances and the needs and considerations in certain criminal
cases become more complex, how should the courts continue to preserve
this right in the age of Skype, FaceTime, and other videoconferencing
technologies? Are defendants owed a physical face-to-face confrontation
with their accusers when circumstances make that confrontation difficult?
The Case History
Friedman and Moran look to three critical cases that address the videoconferencing
issue. The first is 1990's
Maryland v. Craig, 497 U.S. 836. In that case, the Supreme Court ruled that minors who were alleged victims
of sexual assault did not have to be physically present in court to submit
testimony—they could do it via a one-way closed circuit television.
The justices decided that when there were public concerns over an in-person
confrontation and the integrity of the testimony could be guaranteed,
a video-assisted confrontation was permissible.
A similar ruling was made in
United States v. Burke, 345 F.3d 416 in 2003. In that case, the Sixth Circuit extended the
Craig rationale to a case that did not include a minor accuser. It also ruled
that videoconferencing did not infringe on the due process guaranteed
in a suppression hearing—even if the judge himself is the one physically absent.
Finally, Friedman and Moran looked to our own Ohio courts for a definitive
decision on the issue: in 2011's
State v. Johnson, 2011-Ohio-3143, the judge allowed accusers to submit live video testimony to the court
due to threats they had received over their participation in the trial.
Because the defendant was thought to be the source of the threats in that
case, the court ruled that "[W]hen defendants seek to undermine the
judicial process by procuring or coercing silence from witnesses and victims,
the Sixth Amendment does not require courts to acquiesce."
You can read all of Attorney Ian Friedman and Thomas Moran's piece
"'Your Honor, We Next Call to the Stand in Taiwan … ':
Videoconferencing & the Confrontation Clause." in
Attorney at Law Magazine, Volume 2, Number 7.
Friedman & Nemecek, L.L.C.
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