Tuesday, November 03, 2009

Cross-examination by teleconference?

Robert Guest at Dallas Criminal Defense Lawyer has a post on a case out of the Dallas court of appeals which approved remote testimony via teleconference in a capital murder trial (see the opinion) because a witness who lived in Chicago was pregnant. The witness claimed hers was a high-risk pregnancy that prevented her from traveling or exerting herself, but no medical testimony was presented to support that claim.

Previously Texas courts have only allowed remote testimony in cases where the witness is terminally ill, says Robert, asking, "I'm no doctor, but from what I've gathered about human pregnancy vs. terminal illness is that pregnancy usually ends within 40 weeks with the mother alive. Ergo, wouldn't the witness have been available later?" SCOTUS has held that the Confrontation Clause "guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact."

Teleconferencing is used in a variety of ways in the justice system, from supplementing inmate visitation to consultations with medical staff at TDCJ to approving negotiated plea deals for already incarcerated defendants. But it's taking that trend too far IMO to allow teleconferencing when a witness must be cross-examined. SCOTUS went partially down that path a few years ago by allowing child witnesses in sex abuse cases to testify remotely and IMO it's led to problems, for reasons identified in an example from a commenter on Robert's blog:
I tried a case where a child complainant testified by CCTV from the same building. He called me Donald Duck, and the prosecutor Elmer Fudd, as he sat in a room full of toys and stuffed animals talking to a television that spoke back for the first time in his life. Despite this, it still took the prosecutor two hours of (permitted) leading questions to drag a scintilla of accusation from him. That six year old had no idea of the gravity and solemnity of the situation.
Guest identifies some of the potential pitfalls with allowing this practice more widely:

In court cross examination is a great tool for discovering the truth. I can see, hear, and even smell the witness against my client. I've only conducted pleas via close circuit camera (jail chain in Bowie County) but never cross examined a witness.

Even in something simple as a plea there is no rhythm to the conversation. The cadence of dialogue is gone, broken up by "What did you say?" and "Can you repeat that?"

It doesn't sound like much but it's one of the ways I get to my client's version of the truth. I'm not sure I could get the same results with Skype. With a client hundreds of miles away from the jury and me I would be at a disadvantage. What comes to mind first is exhibits. What if I wanted to ask the witness to read something? Or demonstrate something?

What about demeanor? You can't tell much about a witness from a grainy head shot. For example, many cops testify with their notes in their lap. Something you couldn't see via web cam. Finally, with me on a TV set they can control my volume and presence to the witness. Crescendo has less impact when the witness is starting at me through a netbook.

This decision undermines, by a degree, the Confrontation Clause requirement that the US Supreme Court has been strengthening lately in the wake of its decision in Crawford. It's one thing to allow remote testimony for witnesses with terminal illnesses, but not just for convenience's sake, which seems like the net result when mere pregnancy becomes an excuse to avoid confrontation in life-or-death proceedings like a capital murder trial.


Anonymous said...

In 2005, the TX Legislature finally enacted a provision allowing the State to request the pretrial deposition of otherwise unavailable witnesses. Previously, only defendants had that right and prosecutors had been begging for it for years. This new avenue for securing testimony should alleviate the State's need to resort to teleconferencing and the like in most cases.

Anonymous said...

"mere pregnancy"?????
Ya, she could have just gotten an abortion and come to testify. No problem.

Give me a break.
Surely there are other injustices to hyperventilate over.

Gritsforbreakfast said...

@ 8:54, "mere pregnancy" because pregnancies terminate and then the witness would be available to come to court. The old standard was only to allow remote testimony in cases of terminal illness. The appellate processes in capital cases frequently take years or even a decade or more. I see little harm in waiting till after delivery if her testimony was so critical.