Ruling raises questions about remote testimony
An overturned conviction in Missouri is raising new questions about video testimony in criminal court cases nationwide, and the ruling could have ripple effects through a justice system increasingly reliant on remote technology as it struggles with a backlog of cases during the coronavirus pandemic.
Missouri’s highest court on Tuesday reversed the statutory rape conviction of a St. Louis man, finding that an investigator’s video testimony violated the defendant’s Sixth Amendment right to confront the witnesses against him.
The investigator appeared remotely in 2019 because he was on paternity leave, testifying that DNA evidence taken from the victim’s clothing matched the defendant’s DNA. The victim had since recanted her accusations, so the conviction and sentence of probation turned on the DNA evidence.
Many state and federal courts halted all criminal trials for months during the pandemic, allowing remote trials only when defendants explicitly agreed to forfeit any rights to in-person confrontation of their accusers. The Missouri ruling differs from many pandemicera cases because the judge went ahead despite the defendant’s objections.
State court systems typically handle millions of cases every year in total. Even if the majority of those cases are unaffected by the legal questions raised in the Missouri Supreme Court ruling, for those that are it could mean more challenges for a burdened judiciary. The decision could eventually make this a test case for the U.S. Supreme Court, said Michael Wolff, a former chief justice of the Missouri Supreme Court and a professor at the St. Louis University School of Law.
“This guy was convicted with the use of Zoom technology and could not have been convicted without it,” Wolff said. The nation’s highest court has allowed exemptions for child witness to testify remotely to shield them from a potentially traumatic experience, but “you still don’t get away from the fact that the Constitution says there’s a right to confrontation.”
The U.S. Supreme Court has grappled with the legal ramifications of remote testimony for decades, though the constitutional questions it raises have never been fully answered.
A landmark ruling in Maryland vs. Craig in 1990 upheld a trial judge’s decision to let a victim of child abuse testify remotely. In a 5-4 decision, the court said the Sixth Amendment doesn’t guarantee an “absolute right” to in-person confrontations, especially if remote testimony “is necessary to further an important public policy.” It said lessening the trauma of testifying to a child was a compelling public interest.
The dissenters said the Constitution provided no wiggle room and that the point was “to place the witness under the sometimes hostile glare of the defendant.” Some of those same justices were in the majority 14 years later in Crawford vs. Washington, which asserted that the right to confront an accuser in person was near-toabsolute.