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Another Nail in the Coffin for “Trial by Zoom”
CRIMINAL COURT NEWS
Another Nail in the Coffin for “Trial by Zoom”
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BY DAN DWORIN
The Texas Court of Criminal Appeals recently held that the testimony of a witness by teleconference violated the defendant’s Sixth Amendment right to confront the witnesses against him, further strengthening the argument that Texas criminal trials cannot be held without in-person testimony. Haggard v. State, No. PD-0635-19, -- S.W.3d -- (Tex. Crim. App. Dec. 9, 2020). In Haggard, the Liberty County trial court allowed a Sexual Assault Nurse Examiner (SANE), who had examined the child alleged to have been a victim of sexual abuse but who had subsequently moved out of state, to testify by videoconference after she informed the State that she was not willing to return to Texas for the trial. The defense objected to her live testimony as a violation of the Sixth Amendment’s guarantee of the defendant’s right to confront witnesses for the State.
The witness, who was not under subpoena as she had previously told the State she did not need one, told the prosecutors at the last minute that she had changed her mind and was not willing to travel, explaining that she could not afford to travel to Texas for the hearing, and that appearing in person would be both personally and financially burdensome. The problem presented for the State was that this witness had collected various DNA samples from the child; and without her testimony proving the chain of custody, the results of the DNA testing, which inculpated the defendant, would not be admissible.
The State then moved the court to allow the witness to testify via FaceTime, a videoconferencing application that would allow the witness and the attorneys asking questions to see each other and allow for cross-examination by the defense. The witness’s image was broadcast onto monitors at counsel table as well as shown to the jury on a 60-inch television monitor. The judge allowed this testimony over the defense’s objection.
The Court of Criminal Appeals held that this broadcast testimony was a violation of the defendant’s right to confront witnesses and that, absent some showing of necessity in cases involving child victims, videoconferencing technology, no matter how sophisticated, did not satisfy the Confrontation Clause. The dissent noted that the Court’s ruling was out of step with “the realities of the world we live in today,” to which Judge Hervey, writing for the majority, replied that the only appreciable difference between the world today and the world in which the long line of cases requiring in-person testimony were decided was that now “there are more televisions and their screens are bigger.” The late U.S. Supreme Court Justice Antonin Scalia was given the last word by the majority, quoting at length from his opinion concerning the adequacy of videoconferencing as a replacement for live confrontation: “Virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt it is sufficient to protect real ones.” Order of the Supreme Court, 207 F.R.D. 89, 91 (2002). AL
Dan Dworin is a criminal defense attorney licensed in the Western District of Texas since 1997. He is board certified in criminal law by the Texas Board of Legal Specialization. dworinlaw.com.
