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
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
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.
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
/may/22/abolish-oaths-court, archived at
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
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.
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),

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