By Jacob Newton
“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”[1] The question becomes, what constitutes confrontation? Face to face confrontation is undoubtedly what the founding fathers intended the Sixth Amendment to encompass. Face to face confrontation was the only possible method to satisfy the confrontation requirement at the time the Sixth Amendment was ratified. The United States Supreme Court has slowly expanded the strict face to face requirements of the Sixth Amendment.
In 1988, the Supreme Court held the right of confrontation requires literal face-to-face confrontation.[2] The Supreme Court went on to explain “there is something deep in human nature that regards face-to-face confrontation between accused and accuser as ‘essential to a fair trial in a criminal prosecution.’”[3] The “look me in my eye” approach was taken to the confrontation clause. The Supreme Court noted any exception to the right “would surely be allowed only when necessary to further an important public policy.”[4]
In 1990, the Supreme Court backed down from this rigid confrontation clause requirement when it was necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant.[5] The child’s testimony still had to be viewed via one-way closed-circuit television, enabling the judge, jury, and defendant to observe the child’s demeanor during testimony.[6] The Court held that the defendant’s confrontation rights did not guarantee an absolute right to face-to-face confrontation at trial since the presence of three of the four confrontation elements (presence, cross-examination of witnesses, the administration of oath, and allowance for observation of witness demeanor by the trier of fact) in the one-way video procedure adequately assured reliability.[7] The Supreme Court has been to silent as to any other specific public policy exceptions to the face to face requirement of the confrontation clause.
In Virginia, a Defendant making a required or permitted appearance before a magistrate, intake officer or, prior to trial, before a judge, the appearance may be by personal appearance or the use of two-way electronic video and audio communication.[8] The two-way electronic video and audio communication system used for an appearance must meet the following standards: (1) The persons communicating must simultaneously see and speak to one another; (2) The signal transmission must be live, real time; (3) The signal transmission must be secure from interception through lawful means by anyone other than the persons communicating; and (4) Any other specifications as may be promulgated by the Chief Justice of the Supreme Court.[9]
COVID-19 has raised the question, can a judge require a criminal Defendant to appear by video without a waiver? The justification for requiring a Defendant to appear by video is due to the pandemic. It is important to consider the safety for the judge, clerk, attorneys, court security, the Defendant, and other jail population if the Defendant returns to the jail. A judge requiring a Defendant to appear by video eliminates multiple levels of person to person contact. While limiting person to person contact during a pandemic is essential, limiting traditional person to person confrontation in a criminal trial potentially violates the Defendant’s constitutional rights.
When looking to Coy v. Iowa, the best argument for requiring a Defendant to appear by two-way electronic video and audio communication is making another exception to the right furthers an important public policy.[10]The public policy argument is to stop the spread of COVID-19 and keep everybody, including the Defendant, safe from unnecessary contact. Three of the four elements of confrontation identified in Coy v. Iowa are present when the Defendant is appearing by two-way electronic video and audio communication. The Defendant’s attorney will still cross-examination witnesses, the Defendant can hear and see the administration of oath, and the trier of fact will still observe the witness’s demeanor. The only deficit is the Defendant’s presence in a traditional sense. The United States Supreme Court in Maryland v. Craig held three out of the four were enough to satisfy the confrontation, so the there is a good faith argument requiring criminal Defendant’s to appear by two-way electronic video and audio communication satisfies the confrontation clause.[11] The requirements set forth in Virginia Code § 19.2-3.1., further bolster the reliability of two-way electronic video and audio communication to satisfy the confrontation clause in Virginia.
[1] U.S. Const. amend. VI.
[2] Coy v. Iowa, 487 U.S. 1012, 1017, 108 S. Ct. 2798, 2801 (1988).
[3] See id. (quoting Pointer v. Texas, 380 U.S. 400, 404 (1965)).
[4] See id. at 1225.
[5] Maryland v. Craig, 497 U.S. 836, 857, 110 S. Ct. 3157, 3170 (1990).
[6] Id.
[7] See id. at 841; see also State v. Thomas, 25, 376 P.3d 184, 193 (N.M. 2016).
[8] Va. Code Ann. § 19.2-3.1.
[9] Id.
[10] See Coy, 487 U.S. at 1017, 108 S. Ct. at 2801.
[11] See Maryland v. Craig, 497 U.S. 836, 857, 110 S. Ct. 3157, 3170 (1990).
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