Confronting Confrontation in a FaceTime Generation: A Substantial Public Policy Standard to Determine the Constitutionality of Two-Way Live Video Testimony in Criminal Trials

• Author: J. Benjamin Aguiñaga
• Pages: 174-211

Louisiana Law Review





Confronting Confrontation in a FaceTime

Generation: A Substantial Public Policy Standard to

Determine the Constitutionality of Two-Way Live

Video Testimony in Criminal Trials

J. Benjamin Aguiñaga





 









Confronting Confrontation in a FaceTime

Generation: A Substantial Public Policy Standard to

Determine the Constitutionality of Two-Way Live

Video Testimony in Criminal Trials

“Got a problem with me, say it to my face, to my face, to my

face . . . .”1

INTRODUCTION

The judge asks the prosecution to call its next witness against

the criminal defendant. The judge and jury watch as the bailiff

administers the oath to the witness, who swears to “tell the truth,

the whole truth, and nothing but the truth.”2 Then, the testimony

begins—but the witness stand is empty. This is because the witness

is testifying via two-way live video. His image appears on a large

screen in the courtroom, visible to everyone—judge, jury,

attorneys, defendant, and spectators.3 The witness likewise has his

own screen on which he can see the entire courtroom.4 The

testimony proceeds normally: direct examination and then cross-

examination. With the exception of the witness’s physical absence,

the two-way live video testimony seems completely ordinary; and

yet, the technological advancements that make this seemingly

ordinary witness testimony possible present serious constitutional

issues unforeseen by the Framers.

This Comment addresses whether two-way live video

testimony in criminal trials violates the Confrontation Clause of

the Sixth Amendment, which ensures that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted

with the witnesses against him.”5 The Supreme Court in Maryland

v. Craig upheld one-way live video testimony in the context of

child abuse cases to protect child victims from the presence of the

Copyright 2014, by J. BENJAMIN AGUIÑAGA.

1. LUDACRIS, Say It to My Face, on 1.21 GIGAWATTS: BACK TO THE FIRST

TIME (Self-released 2011).

2. See, e.g., Aidan C. O’Brien, Noth ing but the Truth, THEGUARD IAN (May

22, 2012, 9:01 AM), available at http://www.theguardian.com/law/belief/2012

/may/22/abolish-oaths-court, archived at http://perma.cc/P2NH-SDMV.

3. See, e.g., United States v. Yates, 438 F.3d 1307, 1310 (11th Cir. 2006)

(en banc) (describing how people in the courtroom could see the witness on the

screen).

4. See id. (“[T]he witnesses could see the temporary courtroom in the U.S.

Attorney’s confere nce room.”). This vie w, however, is not always immune fro m

technical difficulties. See id. n.2 (noting “some technical difficulties that

impacted the abilities of the witnesses”).

5. U.S. CONST. amend. VI.

176 LOUISIANA LAW REVIEW [Vol. 75

defendant, based on the “important public policy” of protecting

child abuse victims from further traumatization.6 But courts and

scholars have disagreed about whether and how to apply Craig to

two-way live video testimony in contexts other than child abuse cases

where there is no similarly important public policy.7 The Court’s

subsequent upheaval of Confrontation Clause jurisprudence in

Crawford v. Washington especially complicates these disagreements

because the Court rejected the concept of “reliability” that

undergirded the Craig decision.8 Additionally, the Court’s

Confrontation Clause decisions following Crawford have obscured

the extent of Crawford’s holding, insomuch that scholars have

described the decisions as “vague[], uncertain, unpredictable, a

mess, almost arbitrary, incoherent, and an exercise in fiction.”9

Amidst this unrest, prosecutors continue to use two-way live video

testimony and defendants continue to challenge its use.10 As the

popularity of such testimony grows,11 and the technological ease of

6. See Maryland v. Craig, 497 U.S. 836, 859–60 (1990); see also

discussion infra Part I.B.2.

7. See discussion infra Part II.

8. See Crawford v. Washington, 541 U.S. 36 (2004); see also discussion

infra Part I.B.3.

9. Dylan O. Keenan, Note, Confronting Crawford v. Washington in the

Lower Courts, 122 YALE L.J. 782, 786 (2012) (citations omitted) (internal

quotation marks omitted). Indeed, the disagreements surrounding Crawford are

illustrated—and perhaps, complicated—by the Roberts Court’s willingness to hear

Confrontation Clause cases nearly every term since Crawford. See Williams v.

Illinois, 132 S. Ct. 2221 (2012); Hardy v. Cross, 132 S. Ct. 490 (2011); Greene

v. Fisher, 132 S. Ct. 38 (2011); Bullcoming v. New Mexico, 131 S. Ct. 2705

(2011); Michigan v. Bryant, 131 S. Ct. 1143 (2011); Melendez-Diaz v.

Massachusetts, 557 U.S. 305 (2009); Giles v. California, 554 U.S. 353 (2008);

Whorton v. Bockting, 549 U.S. 406 (2007); Davis v. Washington, 547 U.S. 813

(2006); Mayle v. Felix, 545 U.S. 644 (2005).

10. Since 2012, the constitutionality of two-way live video testimony in

criminal trials has been litigated dozens of times in state and federal courts. See,

e.g., Collins v. Cain, No. 13–0251, 2013 WL 4891923 (E.D. La. Sept. 11, 2013);

People v. Novak, 971 N.Y.S.2d 197 (Cnty. Ct. 2013); State v. Seelig, 738 S.E.2d

427 (N.C. Ct. App. 2013); State v. Smith, 308 P.3d 135 (N.M. Ct. App. 2013);

People v. Lujan, 150 Cal. Rptr. 3d 727 (Ct. App. 2012) (modified on rehearing

on other grounds); United States v. Sapse, No. 2:10–CR–00370–KJD, 2012 WL

5334630 (D. Nev. Oct. 26, 2012); Rivera v. State, 381 S.W.3d 710 (Tex. App.

2012); Paul v. State, No. 12–10–00280–CR, 2012 WL 3101743 (Tex. App. July

31, 2012); People v. Buie, 817 N.W.2d 33 (Mich. 2012); Kramer v. State, 277

P.3d 88 (Wyo. 2012); United States v. Rosenau, 870 F. Supp. 2d 1109 (W.D.

Wash. 2012).

11. In perhaps one of the most recent, infamous uses of live video testimony,

the State of Florida attempted to introduce a professor’s testimony via Skype in

George Zimmerma n’s criminal trial for the shooting of Trayvon Martin. Suzanne

Choney, Skype Pranksters Interrupt Zimmerman Witness Testimony, NBC NEWS

(July 3, 2013, 5:35 PM), http://www.nbcnews.com/technology/skype-pranksters-