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Could Videoconferencing, Skype Testimony Be Unconstitutional?

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By Casey C. Sullivan, Esq. on June 27, 2016 4:03 PM

Videoconferencing programs like Skype or FaceTime are becoming increasingly common in today's courtrooms. Defendants detained in other jurisdictions can Skype in to the court house. More rarely, witnesses may present testimony via teleconference. Even attorneys have been known to appear in court through the magic of online video streaming.

But a new ruling by the New Mexico Supreme Court should give videoconferencing attorneys and courts some pause. The highest court in the Land of Enchantment recently tossed a murder conviction, ruling that the use of Skyped testimony violated the Constitution's Confrontation Clause.

Convenience Alone Is Insufficient

The Sixth Amendment's Confrontation Clause affords a criminal defendant the right "to be confronted with the witness against him." (The Fourteenth Amendment, in turn, incorporates that right against the states.) In practice, that requires witnesses to testify under oath, to be subject to cross examination, and to be in the presence of the accused and the fact-finder.

But that requirement doesn't mean a witness must always testify in person, as the Supreme Court ruled in Maryland v. Craig. Instead, a court may permit testimony when a witness is not physically present if such is necessary to "further an important public policy" and if the testimony is "sufficiently reliable." Crawford v. Washington moved away from Craig's reliability requirements while reemphasizing the role of cross examination in confrontation, whether in person or via video.

In the case of Truett Thomas, the New Mexico Supreme Court found that "nothing in the record of this case demonstrates that the use of two-way video was necessary further an important public policy as required by Craig."

There, a forensic analyst who had moved out of New Mexico testified via Skype, largely on chain of custody matters. Her presence via teleconference seemed largely designed to spare the court, witness, and parties the difficulty of having her return from out of state.

"Inconvenience to the witness is not sufficient reason to dispense with this constitutional right," the court wrote.

Meanwhile, Everywhere Else...

The use of videoconferencing in courts continues to grow, however, despite constitutional concerns. A recent survey of New York City criminal courts, for example, found that more than half of courts had permitted a defendant, witness, or attorney to appear remotely via videoconference.

The vast majority of those appearances were by defendants detained in another jurisdiction (68.8 percent), but more than 15 percent allowed witnesses to appear via videoconference, and over 12 percent had let attorneys do so as well.

And New York City is behind the curve on this trend, with respondents noting that "New York should catch up to the rest of the nation," even as a small minority expressed concerns about videoconferencing's constitutionality.

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