More for the Legal Eagles

Burt Likko says:

The Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. (Emphasis added.)

This applies to the States via the doctrine of incorporation, Roberts v. Russell (1968) 392 U.S. 293. But what does it mean? Here’s some annotations summarizing how courts have interpreted the Confrontation Clause:

• Principal evil at which the Confrontation Clause was directed was civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against accused. Crawford v. Washington (2004) 541 U.S. 36.
• The underlying purpose of the confrontation clause is to augment accuracy in the fact-finding process by ensuring that the defendant has an effective means to test adverse evidence. Ohio v. Roberts (1980) 448 U.S. 56.
• Major reason underlying confrontation rule of this amendment is to give defendant charged with crime an opportunity to cross-examine witnesses against him. Burton v. U.S. (1968) 391 U.S. 123.
• Constitution guarantees to accused that evidence developed against defendant shall come from witness stand in public courtroom where there is full judicial protection of defendant’s right of confrontation, or cross-examination, and of counsel. U.S. v. Harber, (9th Cir. 1995) 53 F.3d 236.
• Generally speaking, the defendant’s Sixth Amendment right to confront his accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses. Walker v. Goord, (W.D.N.Y. 2006) 427 F.Supp.2d 272.
• Confrontation Clause provides two types of protection for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination. Brinson v. Walker (W.D.N.Y. 2006) 407 F.Supp.2d 456, aff’d, 547 F.3d 387.
• Confrontation clause provides criminal defendant the right to physically face those who testify against him and the right to conduct cross-examination. Yarrington v. Davies (D.Kan. 1991) 779 F.Supp. 1304, aff’d, 992 F.2d 1077.
• Purposes served by Sixth Amendment’s requirement of face-to-face, in-court testimony include ensuring reliability of evidence by allowing trier of fact to observe witness’ demeanor, nervousness, expressions, and other body language, impressing upon witness the seriousness of the matter and ensuring that statements are given under oath, and assuring witness’ identity, that witness is not being coached or influenced during testimony, and that witness is not improperly referring to documents. U.S. v. Hamilton (7th Cir. 1997) 107 F.3d 499.
• The right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process. Hood v. Uchtman, (7th Cir. 2005) 414 F.3d 736.
• Right of accused under this amendment to confront witnesses against him is absolute right. U. S. v. Morris, (5th Cir. 1973) 485 F.2d 1385.
• Defendant’s constitutional right to confront adverse witnesses is not absolute or unlimited, and right of cross-examination is tempered by policy considerations relating to unfair prejudice, confusion of triable issues, undue delay, presentation of cumulative evidence, and concern that jury may be misled. Miranda v. Cooper, (10th Cir. 1992) 967 F.2d 392.

Oy, what soup! On the one hand, the Fifth Circuit’s Morris case says this is an absolute right, but the Hamilton and Miranda* cases from the Seventh and Tenth Circuits say that no, other interests get balanced in there. But other cases from trial courts are all over the map on whether physical presence matters or not.

The Supreme Court cases, especially Crawford, suggest that this is a procedural rather than substantive right so as long as meaningful cross-examination can proceed, the evil that the Sixth Amendment sought to combat is ameliorated. There are exceptions to the hearsay rule, after all.

So here, there is obviously the ability for defense attorneys to cross-examine on the same terms as direct examination takes place. But there’s no physical presence of the defendant with the witness, and for many courts, that is inherently important. And while Skype allows for a view of the witness’ face and some indicia of whether the witness is referring to notes rather than testifying from memory** it may not be so easy to tell if there is coaching by a third party going on. If it’s just audio over the phone, we lose that for sure.

So I think that a cautious trial judge would not have allowed this testimony under typical circumstances even by Skype, much less by phone. Were I the judge, I’d be looking for a pretty compelling showing from the prosecution before allowing this. It screams “appellate issue.” I don’t know what other extraordinary circumstances exist that would have justified this.

* Not that Miranda. Different guy.

** Human memory is notoriously unreliable, yet the courts insist that testimony from memory is better than testimony from recordations. A subject upon which we all, lawyers and non-lawyers alike, might profitably reflect.Report