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Law360 (April 14, 2020, 5:45 PM EDT) --
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| Kate Dyson |
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| Virginia Romano |
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| Yanbing Chu |
The Federal Rules of Criminal Procedure do not address remote trial testimony, and the circuits do not agree on the appropriate test to determine when it is permissible to substitute it for a physical appearance by the witness.
But the novel coronavirus and the social distancing it requires have forced us to consider alternatives to all of our in-person interactions, including those that take place inside the courtroom.
Here, we look at the different standards implemented by federal courts considering requests to have witness testimony via video conference in a criminal trial. We also identify and discuss circumstances that have led courts to permit or deny such testimony.
Finally, we briefly consider the types of changes that COVID-19 has brought about to the federal criminal process, albeit on a temporary basis, and whether the court system's experience with this global pandemic may have an impact on its future treatment of two-way video testimony in criminal cases.
Video Testimony in Federal Criminal Trials
While "the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact,"[1] this right is not absolute. In Maryland v. Craig, the U.S. Supreme Court held that a child victim who was a witness in an abuse case could testify via one-way closed-circuit television testimony upon a case-specific finding of necessity.[2]
In the three decades since Maryland v. Craig, the Supreme Court has revisited the concept of video testimony only once, in 2002, when it rejected a proposed revision by the judicial conference to Federal Rule of Criminal Procedure 26 that would have allowed remote testimony in special circumstances.[3] As a result, lower courts presiding over criminal trials have been left without a specific procedural mechanism for remote testimony or clear guidance on when it may be appropriate.
The circuits are divided on the applicable standard for determining whether to allow two-way video testimony. The U.S. Courts of Appeals for the Eighth, Ninth and Eleventh Circuits expressly adopted the standard set in Maryland v Craig.[4] Under the Craig standard, courts will uphold the use of live video testimony when it "is necessary to further an important public policy" and "where the reliability of the testimony is otherwise assured."[5]
Courts applying Craig require a case-specific finding to ensure that the use of video testimony is necessary and that there are no available alternatives.[6] Absent such specific findings on necessity and a lack of alternatives, courts have concluded that video testimony violated a defendant's constitutional right.[7]
The U.S. Court of Appeals for the Second Circuit has taken a different approach. In U.S. v. Gigante, it upheld the district court's use of Federal Rule of Criminal Procedure 15, governing depositions, to grant the government's application to have a key witness testify via two-way closed-circuit television "due to his illness and concomitant infirmity."[8]
The Gigante court declined to apply the Craig test, since it had been crafted in connection with one-way (as opposed to two-way) video testimony "whereby the witness could not possibly view the defendant."[9] The court reasoned that Rule 15, giving the defendant the right to be present during a witness deposition that would likely be played at trial, provided a more profitable comparison and could be relied on to permit live two-way video testimony upon meeting its requirements: a sufficient showing of exceptional circumstances — namely, that the witness was both important to the case and unavailable — when this furthered the interest of justice.[10]
In the view of the Second Circuit, "two-way closed circuit television testimony [did] not necessarily violate the Sixth Amendment," since the procedure could "provide at least as great protection as confrontation rights as Rule 15."[11] Nevertheless, the court cautioned that such testimony "should not be considered a commonplace substitute for in-court testimony by a witness," as "[t]here may well be intangible elements of the ordeal of testifying in a courtroom that are reduced or even eliminated by remote testimony."[12]
Courts applying the Gigante standard thus consider the following factors in evaluating an application for video testimony: (1) the materiality of the witness's testimony; (2) the requesting party's good-faith and reasonable efforts to obtain the witness's presence and inability to do so; and (3) whether allowing testimony by such means would further the interest of justice.[13]
A common basis for an application to have a witness testify remotely, and one that courts have tended to permit, is illness. Specific findings of the witness's poor health have demonstrated an exceptional circumstance under Gigante,[14] as well as an important public policy under Craig.[15] A temporary physical disability, such as pregnancy, however, has been held not to justify remote testimony when other alternatives, such as a brief continuance of the trial, were available to preserve the defendant's right to confrontation.[16]
Other circumstances in which courts have permitted remote testimony involved a witness who was physically prevented from coming to the U.S. for reasons other than illness[17] and the need of a witness to take care of a special-needs child located outside the trial jurisdiction.[18] Safeguarding national security has been acknowledged to be an important public policy justifying video testimony in a deposition by overseas officers in a terrorism case.[19]
Regardless of the standard that is applied, courts take steps to ensure the reliability of video testimony when determining whether to allow it. Under Craig, reliability is based on the existence of the foundational safeguards of live in-court testimony, specifically: (1) the testimony is given under oath; (2) there is an opportunity for live cross-examination; and (3) the fact-finder is able to observe the witness's demeanor.[20] The court in Gigante, applying the same considerations, found testimony via two-way closed-circuit television to be reliable.[21]
The Special Challenge of Cross-Border Cases
Cross-border cases involving key witnesses located outside the U.S. can create special challenges. An overseas witness who refuses to travel to the U.S. to testify may form the basis of a successful application for remote testimony, depending on the standard that is applied.
The Eleventh Circuit in U.S. v. Yates, invoking the Craig standard, for example, held that the fact that two Australian witnesses refused to travel to the U.S. was insufficient grounds for remote testimony, even though the witnesses were essential to the government's case.[22]
In the court's view, allowing video testimony under these circumstances simply did not further an important public policy. On the other hand, the U.S. District Court for the Southern District of New York, applying the Gigante test, allowed video testimony in U.S. v. Mostafa for a witness who was located in the U.K. and who did not want to travel to the U.S., finding the witness was both material to the government's case and unavailable.[23]
Another consideration in seeking video testimony from a witness outside the U.S. is whether the country where the witness is located will cooperate and assist in the giving of testimony in a U.S. trial.
The district court in U.S. v. Buck, for example, denied the defendant's request to have witnesses testify via video conference from Switzerland, in part because:
[t]he treaty between the United States and Switzerland regarding Mutual Assistance in Criminal Matters disclaims assistance in any matters concerning tax law violations like those Buck is charged with.[24]
Thus, "even if the Court were to order [closed circuit] TV testimony, it is unclear to what extent the Swiss government would assist in facilitating said testimony."[25]
Similarly, the court in U.S. v. Banki denied a defense request for live video testimony from witnesses located in Iran, stating that:
there is no United States Embassy or Consulate in Iran, and no realistic way for officers of the United States to travel there to administer the oath or otherwise monitor the proceedings.[26]
The Buck court noted an even more problematic issue presented by witnesses' status as citizens and residents of Switzerland: They were not subject to extradition to the U.S. As such, their testimony would be "essentially … free of any penalty of perjury, calling into doubt the reliability of any potential testimony."[27]
The court in U.S. v. Banki expressed the same concern, noting that because the U.S.:
has no diplomatic relations with Iran and no means to extradite even U.S. citizens residing within its borders … there is no way to ensure truth-telling as the Government cannot prosecute the witnesses for perjury or for the making of false statements.[28]
As such, the witnesses were, in the court's view, essentially free to say anything without reprisal, calling into serious question the reliability of their testimony. In contrast, courts have allowed testimony from countries with extradition treaties.[29]
More recently, the court in U.S. v. Mohamed permitted testimony to be taken of defense witnesses at the U.S. embassy in Somalia or a neighboring country. Over the government's objection regarding reliability, the court concluded that "consular officers [could] administer oaths to the witnesses," which would "mitigate the reliability problem posed when witnesses do not swear an oath before the court."[30]
Because of logistical challenges, however, the court chose to permit a Rule 15 deposition over live closed-circuit television testimony. Moreover, in a nod to current times, the court directed that the deposition be conducted wholly through remote means, "both because of dangers to Americans in the region, and the risks of travel during the coronavirus pandemic."
Federal Criminal Proceedings Amid the Current Health Crisis
As part of the nationwide effort to stop the spread of COVID-19, a number of federal courts across the U.S. adopted social distancing measures and, in some areas, encouraged the use of remote technology for various pretrial criminal proceedings.[31]
On March 27, Congress passed and the president signed into law the Coronavirus Aid, Relief, and Economic Security, or CARES, Act,[32] which expressly authorizes the use of video and telephone conferencing during the course of the COVID-19 pandemic for various criminal case events, with the consent of the defendant after consultation with counsel.
No phase of a criminal trial, including witness testimony, is among the listed criminal case events that can be held over video conference. Many districts have temporarily adjourned jury trials altogether.
While the courts may not need to immediately address the issue of remote witness testimony in criminal trials, it remains to be seen whether, once the national emergency declaration has ended, there will be related applications for video testimony on an ad hoc basis, if, for example, a witness cannot travel due to ongoing restrictions in this or another country or is reluctant to do so due to age or health vulnerabilities.
The nation's collective experience with COVID-19, and the risks that global travel may create, may put such concerns in a new light. To the extent there is an increase in applications for two-way video testimony, there will also be more case law. This will continue to define when such testimony can be taken, while still ensuring its reliability and safeguarding the defendant's constitutional right of confrontation.
Kate Dyson and Virginia Chavez Romano are partners, and Yanbing Chu is an associate at White & Case LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Coy v. Iowa
, 487 U.S. 1012, 1016 (1988).[2] Maryland v. Craig
, 497 U.S. 836 (1990).[3] Order of the Supreme Court, 207 F.R.D. 89 (2002).
[4] See United States v. Carter
, 907 F.3d 1199, 1208 (9th Cir. 2018); United States v. Bordeaux , 400 F.3d 548, 554-55 (8th Cir. 2005); United States v. Yates , 438 F.3d 1307, 1313-15 (11th Cir. 2006) (en banc).[5] "[A] defendant's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." Craig, 497 U.S.at 850.
[6] Craig, 497 U.S.at 855; Yates, 438 F.3d at 1315.
[7] See Yates, 438 F.3d at 1316; Carter, 907 F.3d at 1208; Gentry v. Deuth
, 381 F. Supp. 2d 614, 626 (W.D. Ky. 2004), vacated in part by 381 F.Supp.2d 630 (W.D.Ky. 2004).[8] United States v. Gigante
, 166 F.3d 75, 79 (2d Cir. 1999).[9] Id. at 81.
[10] Id.
[11] Id.
[12] Id.
[13] United States v. Mostafa
, 14 F. Supp. 3d 515, 521 (S.D.N.Y. 2014).[14] See Gigante, 166 F.3d at 81.
[15] See United States v. McKown
, No. 2:16-CR-178-2-TLS-JEM, 2020 U.S. Dist. LEXIS 1293, at *5 (N.D. Ind. Jan. 6, 2020); United States v. Sapse , No. 2:10-CR-00370-KJD-RJJ, 2012 U.S. Dist. LEXIS 154801, at *6-7 (D. Nev. Oct. 26, 2012).[16] Carter, 907 F.3d at 1208.
[17] United States v. Rosenau
, 870 F. Supp. 2d 1109, 1113 (W.D. Wash. 2012); United States v. Beaman , 322 F. Supp. 2d 1033, 1035 (D.N.D. 2004).[18] United States v. Harris
, No. 17-00001 HG-01, 2018 U.S. Dist. LEXIS 70660, at *7-8 (D. Haw. Apr. 26, 2018).[19] United States v. Abu Ali
, 528 F.3d 210, 242 (4th Cir. 2008).[20] Gigante, 166 F.3d at 80 (citing Craig, 497 U.S. at 845-46).
[21] Id. at 80.
[22] Yates, 438 F.3d at 1307.
[23] Mostafa, 14 F. Supp. 3d at 522.
[24] United States v. Buck
, 271 F. Supp. 3d 619, 623 (S.D.N.Y. 2017).[25] Id. at 624.
[26] United States v. Banki
, No. 10 Cr. 08 (JFK), 2010 U.S. Dist. LEXIS 27116, at *9 (S.D.N.Y. March 23, 2010).[27] Buck, 271 F. Supp. 3d at 624.
[28] Banki, 2010 U.S. Dist. LEXIS 27116, at *7.
[29] Rosenau, 870 F. Supp. 2d at 1114.
[30] See United States v. Mohamed Tahlil Mohamed
, 18-cr-603 (ARR), 2020 U.S. Dist. LEXIS 58113, at *21 (E.D.N.Y. April 1, 2020).[31] Sarah Jarvis, Coronavirus: The Latest Court Closures And Restrictions, Law360 (March 12, 2020, 11:19 PM), https://www.law360.com/articles/1252836/coronavirus-the-latest-court-closures-and-restrictions.
[32] H.R. 748.
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