Defending The Right To Confrontation In Virtual Criminal Trials

By Michelle Bradford and David Frazee
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Law360 (October 1, 2020, 2:57 PM EDT) --
Michelle Bradford
Michelle Bradford
David Frazee
David Frazee
Remember the iconic, cinematic scene in "The Wizard of Oz" when, after having her home swept up by a tornado, Dorothy emerges from her house, steps outside, takes in her new, albeit strange, surroundings and exclaims, "Toto, I've got a feeling we're not in Kansas anymore"? For anyone involved in litigation during the COVID-19 outbreak, this sentiment may be all too familiar.

While civil trials have been more readily convertible into virtual trials, what about criminal defendants? Many courts have issued blanket orders extending the speedy trial rights of criminal defendants for a period of time.[1] However, the longer the COVID-19 outbreak lasts, and with the possibility of a resurgence on the horizon, these criminal defendants will need to have their day in court.

Which poses the question: How does a virtual trial stand up to the Sixth Amendment's right to confrontation?

Does the Sixth Amendment guarantee a face-to-face confrontation?

In 1988, the U.S. Supreme Court in Coy v. Iowa interpreted the Sixth Amendment to "guarantee [a] defendant a face-to-face meeting with witnesses" testifying before the jury.[2] But that guarantee has given way when necessary.

Two years after Coy, in Maryland v. Craig, the Supreme Court upheld as constitutional a Maryland procedural rule allowing child victims of abuse to testify via one-way closed-circuit video, where the victim would not see the defendant.[3] In upholding the Maryland rule as constitutional, the Supreme Court recognized that the right to confrontation is not absolute and held that, while the confrontation clause "preference [is] for [a] face-to-face confrontation, ... [it] must occasionally give way to considerations of public policy and the necessities of the case."[4]

The important public policy in Craig was the state's interest in protecting the "physical and psychological well-being of child abuse victims."[5] However, the court recognized that each case would be different and would require its own case-specific findings sufficient to overcome a defendant's constitutional right to confrontation.[6]

Following this opinion, the Craig test emerged as the applicable standard used when addressing whether a witness may testify virtually at a criminal trial. In general, the Craig test requires a court to:

(1) hold an evidentiary hearing; and (2) find: (a) that the denial of physical, face-to-face confrontation at trial is necessary to further an important public policy and (b) that the reliability of the testimony is otherwise assured.[7]

Some courts have narrowly read Craig as only applying to situations involving a one-way video testimony and have attempted to distinguish two-way video testimony, where the witness and the defendant can see each other. As a result, the courts that view Craig narrowly do not require the Craig test to be met when discussing two-way video testimony and simply take for granted that the procedure satisfies the right to confrontation.

Two-way video provides sufficient confrontation in some circuits.

The U.S. Court of Appeals for the Second Circuit has held that two-way video is sufficient to satisfy the defendant's constitutional right to confrontation.

During the trial of the Genovese family mob head, Vincent Gigante, the U.S. District Court for the Eastern District of New York allowed Peter Savino, an informant who was ill and in witness protection, to testify via two-way video from a remote location.[8] On appeal, Gigante argued his right to confrontation was violated because the Sixth Amendment requires a physical, face-to-face confrontation in the same room as the defendant.[9]

The Second Circuit disagreed,[10] finding that all the "salutary effects" to the right of confrontation were satisfied because (1) Savino was sworn under oath, (2) Savino was subject to cross-examination, (3) Savino "testified in full view of the jury, court and defense counsel, and (4) Savino gave [his] testimony under the eye of Gigante himself."[11]

However, despite its conclusion, the Second Circuit cautioned that "closed-circuit television should not be considered a commonplace substitute for in-court testimony by a witness, [as there] may well be intangible elements ... of testifying in a courtroom that are reduced or even eliminated by remote testimony."[12] Other courts have cited to the Second Circuit's reasoning in support of permitting two-way video testimony.[13]

Get the Zoom out of here: Some courts require a higher standard to justify video testimony.

The majority of courts disagree with Gigante and have held that the Sixth Amendment requires a physical, face-to-face confrontation that can only be denied if the high hurdle of the Craig test is cleared.

The U.S. Court of Appeals for the Eleventh Circuit, for example, in U.S. v. Yates overturned the convictions of two defendants where the lower court had permitted two witnesses located in Australia to testify via two-way video over the defendant's objections.[14] The court explicitly rejected the reasoning in Gigante and found the "simple truth is that confrontation through a video monitor is not the same as physical face-to-face confrontation."[15]

Similarly, the U.S. Court of Appeals for the Eighth Circuit in U.S. v. Bordeaux also rejected the Second Circuit's reasoning in Gigante. The court held that the Craig test must be satisfied whether the video testimony is via one-way or two-way video.[16]

In rejecting the reasoning in Gigante, the court found that virtual confrontations are not in line with the Sixth Amendment because video appearances are "not real in the sense that a face-to-face confrontation is real."[17] The court found that the touchstone of a confrontation that satisfies the requirements of the Sixth Amendment is "whether it is likely to lead a witness to tell the truth,"[18] and found that virtual confrontation falls "short of the face-to-face standard because [it] does not provide the same truth-inducing effect" as face-to-face confrontation.[19]

Shifting view on the horizon: Where does Crawford fall in all of this?

When the right to confrontation arises, most trial attorneys will rightfully look to the Supreme Court's 2004 decision in Crawford v. Washington.[20]

Crawford held that an opportunity for cross-examination is required to admit prior testimonial statements of witnesses who are unavailable at trial. Although Crawford did not involve video testimony and did not explicitly overturn Craig, a handful of courts have found that Crawford calls the Craig test, and any standard that allows a witness to testify by video when the witness is not unavailable and previously subject to cross examination, into question.

Most recently, the Michigan Supreme Court addressed this reasoning head-on in People v. Jemison.[21] In Jemison, the Michigan Supreme Court overturned lower court decisions permitting an expert analyst to testify via two-way video based on the Craig test. The court found that Crawford, while not overturning Craig, overturned the reliability, balancing framework of Ohio v. Roberts,[22] a 1980 U.S. Supreme Court decision that formed the basis for the Craig test.[23]

Importantly, in making this determination, the Michigan Supreme Court found that Justice Antonin Scalia wrote the majority opinion in Crawford and that the views articulated in his dissent in Craig became the U.S. Supreme Court's view on video testimony.[24]

The Michigan court found that Craig only applied to those case-specific facts where a "trial court finds, consistent with statutory authorization and through case-specific showing of necessity, that the child [victim] needs special protection" to testify virtually.[25] In doing so, the Michigan Supreme Court found Crawford controlling and, thus, in-person, face-to-face confrontation was required and "may be dispensed with only when the witness is unavailable and the defendant had a prior chance to cross-examine the witness."[26]

Will COVID-19 have a meaningful impact on the Sixth Amendment?

The COVID-19 pandemic has presented a unique challenge to jury trials. But that does not mean attorneys — or courts for that matter — should throw up their proverbial hands and decide that jury trials must succumb to COVID-19.

Defense attorneys must be vigilant in objecting to attempts to obfuscate their clients' Sixth Amendment right and should, relying on Craig and Crawford, object to aspects of the video testimony that hinder full, effective cross-examination, and thus confrontation. In reality, there are a combination of procedures that can make returning to the courtroom feasible. Courts have already begun to experiment with some of these procedures, such as conducting voir dire virtually and using Plexiglas to separate jurors and witnesses.

The need to protect the record remains imperative. For example, in a 2015 decision in White v. State, the Maryland Court of Appeals noted issues with the connection and clarity of the video feed during the witness's examination.[27] On appeal, however, the court found "significant" that "the record [did] not reflect that ... counsel objected during the hearing or during the trial to the quality of the Skype image."[28]

As a result, the appellate court could not "find the [trial] court erred in finding that the Skype connection and image quality preserved the confrontation element of observing the witness's demeanor."[29] If there are procedures that impair the defendant's right to confrontation, counsel should state the deficiencies on the record to preserve the issue for appeal.

It was President John Adams that called the trial by jury the "lungs of liberty."[30] Before altering one of the core tenets to the right to trial by jury, the right to confrontation, we should be confident that the mechanisms used ensures the voice of liberty can be heard and is not so muffled as to make its voice inaudible.



Michelle N. Bradford is a partner at Barnes & Thornburg LLP and a former prosecutor in the criminal and civil divisions of the U.S. Attorney's Office for the District of Columbia.

David A. Frazee is an associate at Barnes & Thornburg.

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] Abbe David Lowell, et al, Problems with Tolling The Speedy Trial Act During Pandemic, Law 360, available at https://www.law360.com/articles/1270308.

[2] Coy v. Iowa , 487 U.S. 1012, 1016 (1988).

[3] Maryland v. Craig , 497 U.S. 836, 857 (1990).

[4] Id. at 849.

[5] Id. at 853.

[6] Id. at 838.

[7] United States v. Yates , 438 F.3d 1307, 1315 (11th Cir. 2006).

[8] United States v. Gigante , 166 F.3d 75, 78 (2d Cir. 1999).

[9] Id. at 80.

[10] Id.

[11] Id.

[12] Id. at 81.

[13] United States v. Benson , 79 F. App'x 813, 820–21 (6th Cir. 2003) (Following the Second Circuit's ruling, in 2003, the Sixth Circuit relied upon the reasoning in Gigante to find the defendant's right to confrontation was not violated when an 85-year old witness with extensive health problems, and a recent stomach surgery, testified via two-way video conference at trial.).

[14] United States v. Yates, 438 F.3d 1307, 1319 (11th Cir. 2006).

[15] Id.at 1313-15.

[16] United States v. Bordeaux , 400 F.3d 548, 555 (8th Cir. 2005).

[17] Id. at 554.

[18] Id.

[19] Id. at 554 (also finding that "[e]ven if we assumed that a two-way system might conceivably capture the essence of the face-to-face confrontation in some situations, whether it actually did would turn on the answers to a myriad of hard logistical questions (How big must the monitor be? Where should it be placed? Where should the camera focused on the defendant be placed?) that would render the theoretical promise of the two-way system practically unattainable.").

[20] 541 U.S. 36 (2004).

[21] 2020 WL 3421925, *6 (Mich. June 22, 2020) (citing see United States v. Carter , 907 F.3d 1199, 1206 n. 3 (C.A. 9, 2018) (recognizing that "[t]he vitality of Craig itself is questionable in light of the Supreme Court's later decision in Crawford"); see also State v. Thomas , ––– N.M. ––––, 2016-NMSC-024, 376 P.3d 184, 193 (2016) (noting that "Crawford may call into question the prior holding in Craig to the extent that Craig relied on the reliability of the video testimony")).

[22] 448 U.S. 56 (1980).

[23] People v. Jemison , 2020 WL 3421925 (Mich. June 22, 2020).

[24] Id. at *5.

[25] Id. at *7.

[26] Id. at *7.

[27] White v. State , 116 A.3d 520, 544–45 (Md. Ct. App. 2015).

[28] Id. at 544–45.

[29] Id.

[30] The Honorable Jack Zouhary, Jury Duty: A Founding Principal of American Democracy, available at https://civiljuryproject.law.nyu.edu/jury-duty-a-founding-principal-of-american-democracy/ (last visited April 25, 2020).

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