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Attorney Ian Friedman Discusses Videoconferencing & Defendants' Rights


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 Ohio-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.

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