The Right to Confrontation in an Era of Videoconferences

Videoconferencing has skyrocketed in popularity because of the pandemic.  Just check Zoom’s stock.  Seemingly overnight, what used to be an irregular method of business communication has become commonplace.

Courts have embraced the craze, frequently holding hearings and other meetings by video.  But there are limits to what a court can permissibly accomplish by video.  While some observers have suggested videoconferencing is a potential solution to the problem of requiring live, in-person testimony during a pandemic spread by airborne particles, the Supreme Court of Michigan held in a recent criminal appeal that “two-way, interactive video testimony violated the defendant’s Confrontation Clause rights.”[1]

U.S. Supreme Court Precedent on the Confrontation Clause

The Sixth Amendment of the United States Constitution states, in part, that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him[.]”[2]

Analyzing that text, the Supreme Court held in Ohio v. Roberts that the Confrontation Clause was satisfied even if a hearsay declarant were not present for cross-examination at trial so long as the testimony at issue bore sufficient “indicia of reliability.”[3]  24 years later the Court changed course.  In Crawford v. Washington, the Court rejected Roberts because it had impermissibly “replac[ed] categorical constitutional guarantees with open-ended balancing tests.”[4]  The Crawford Court held that a defendant’s confrontation right is absolute for all “testimonial” evidence unless a witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.[5]  In support, the Court cited examples of the importance of face-to-face testimony, including how the failure to require Sir Walter Raleigh’s accuser to testify in person was the genesis of English law’s emphasis on the importance of confrontation to prevent government overreach and abuse.[6]

United People v. Jemison: Recent Michigan Supreme Court Case on the Confrontation Clause

In United People v. Jemison, the Michigan Supreme Court addressed on appeal “whether permitting an expert witness [i.e., the state’s forensic expert] to testify by two-way interactive video, over the defendant’s objection, denied the defendant his constitutional right to confront witnesses and, if so, whether this error was harmless.”[7]

The Court began by analyzing Roberts, Crawford, and a case that fell between the two: Maryland v. Craig.[8]  In Craig, the U.S. Supreme Court relied on Roberts to hold that an accused’s confrontation right as to a child witness may be fulfilled even without face-to-face testimony if the testimony is “reliable” and there are important public policy reasons (e.g., the child witness needs special protection).[9]  While Crawford did not explicitly overrule Craig, it left the case in “doubt” because “the reliability-balancing approach established by the Court in Roberts was the basis for its rule in Craig.”[10]

The Jemison Court soundly rejected the Michigan Court of Appeals’ reliance on Craig to support its holding that the state’s forensic expert could testify through two-way interactive video in a criminal trial.  “First, because [he] was an expert witness, the [Court of Appeals] panel believed that his testimony should not raise the same confrontation-right concerns as the testimony of a fact witness.  Put differently, the Court of Appeals reasoned that [his] expert testimony does not present the same credibility concerns as nonexpert witnesses, effectively placing him outside the confrontation right.”[11]  But the Jemison Court noted that “expert witnesses called by the prosecution are witnesses against the defendant.”[12]  The U.S. Supreme Court has previously underscored that principle: “The text of the [Sixth] Amendment contemplates two classes of witnesses—those against the defendant and those in his favor. The prosecution must produce the former; the defendant may call the latter. Contrary to respondent’s assertion, there is not a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation.”[13]

“Second, the Court of Appeals believed that cost-savings was a sufficient reason to extend Craig’s rule.”[14]  The Jemison Court disagreed, holding “expense is not a justification for a constitutional shortcut.”[15]  The Court prudently noted that finding otherwise would have “perverse consequences: the prosecution could deprive a criminal defendant of confrontation rights by using out-of-state analysts to save money and then cite cost-savings as a justification for not providing face-to-face testimony.”[16]

Takeaways

Jemison serves as an important reminder that the U.S. Constitution safeguards certain fundamental rights.  The convenience and efficiency of videoconferencing may be appealing, but it does not satisfy the right to confrontation (at least as the technology currently exists).  While the Michigan Supreme Court’s interpretation of the 6th Amendment to the U.S. Constitution is not binding in other states or in federal courts, it is persuasive, well-reasoned, and should be followed elsewhere.  Our white collar and federal criminal defense team has a long track record of successfully fighting to protect the constitutional rights of those accused of crimes.

 

[1] United People v. Jemison, No. 157812, 2020 WL 3421925 (Mich. June 22, 2020).

[2] U.S. Const. amend. VI.

[3] 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980).

[4] 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

[5] Id. at 68, 124 S.Ct. 1354.

[6] Id. at 43-45, 124 S.Ct. 1354.

[7] No. 157812, 2020 WL 3421925 (Mich. June 22, 2020).

[8] 497 U.S. 836, 845-846, 851, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990).

[9] Id.

[10] No. 157812, 2020 WL 3421925 at *6 (Mich. June 22, 2020).

[11] Id. at *6.

[12] Id. at *6.

[13] Melendez-Diaz v. Massachusetts, 557 U.S. 305, 313-314, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009).

[14] No. 157812, 2020 WL 3421925 at *6 (Mich. June 22, 2020).

[15] Id. at *6.

[16] Id. at *6 (“Even if we were to apply Craig’s rule, our result would be the same: mere convenience, efficiency, and cost-savings interests are not important enough public-policy considerations to dispense with a defendant’s constitutional right to face-to-face confrontation.”).  The Jemison Court stated that it would “apply Craig only to the specific facts it decided: a child victim may testify against the accused by means of one-way video (or a similar Craig-type process) when the trial court finds, consistently with statutory authorization and through a case-specific showing of necessity, that the child needs special protection.”

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