REMOTE JUSTICE: CONFRONTING THE USE OF VIDEO TELECONFERENCE TESTIMONY IN MASSACHUSETTS CRIMINAL TRIALS.

• Author: Abu, Akua F.

TABLE OF CONTENTS I. INTRODUCTION 307 II. VIDEO TELECONFERENCE TECHNOLOGY 310 III. FEDERAL CONSTITUTIONAL ISSUES WITH VTC 314 A. Traditional Preference for Face-to-Face Confrontation 315 B. Maryland v. Craig: The Validity of One-Way Video Testimony 317 C. Consideration of Federal Constitutional Issues with VTC by Federal Appellate and State Supreme Courts 319 IV. VIDEO TESTIMONY IN MASSACHUSETTS 323 A. Current Policy Allowing Witness Testimony via Video in Some Criminal Cases 324 B. State Case-Law Expressing Caution Against Extension 329 V. Direction for Massachusetts Courts 331 A. "Face-to-Face" Confrontation 332 B. Preserving Elements of Cross-Examination 334 C. Observation of Witness Demeanor 335 D. Courtroom Strategy 338 E. Courtroom Barrier 340 VI. VTC ONLY IN INSTANCES OF "COMPELLING NEED" 341 A. Evaluating VTC in Light of COVID-19 Pandemic 343 VII. CONCLUSION 344 I. INTRODUCTION

Technological advancement offers unique opportunities to address longstanding issues of accessibility and equality in the criminal justice system and to respond to challenges obstructing traditional judicial operating processes. Over the past few decades, courts have adopted electronic discovery, natural language processing for documents, software-enabled exhibits, speech recognition software, and bail prediction models enabled by algorithms. Although these technologies provide benefits, their incorporation has required consideration and implementation of safeguards to protect against associated risks and detriments in the administration of justice. Health crises present a current challenge ushering in another evolution in courtroom procedure. (1) In the face of palpable and grave risks of exposure to the novel SARS-CoV-2 ("COVID-19") virus, courts across the country have postponed categories of proceedings, notably criminal jury trials. (2) Alternatively, some courts have responded to delays in court operations by integrating remote platforms such as two-way live video teleconference ("VTC") into their procedure. (3) Notwithstanding vast potential benefits in terms of efficiency and access presented by VTC, the use of this technology raises the specter of waning enforcement of the rights of criminal defendants. Notably, the use of VTC technology within the context of criminal proceedings is ostensibly at odds with the confrontation rights of criminal defendants, as enshrined in the U.S. Constitution and various state constitutions. (4)

This Note examines the implications of the use of VTC technology for remote witness testimony on the confrontation rights of criminal defendants and as a matter of public policy. In light of limited Supreme Court guidance regarding the permissibility of VTC technology, lower courts have split in their interpretations of the standards governing the use of VTC testimony with respect to defendants' confrontation rights. (5) Some courts have allowed the use of VTC technology to facilitate witness testimony connected to criminal adjudication, most commonly in the context of child sexual abuse cases, in which the presence of a defendant may be dangerous or traumatic for a victim. (6) Video teleconferences have also been used in trials due to the disability or illness of a party. (7) Continued public health risks elevate the question of remote justice in the criminal justice landscape, leading courts to consider the use of VTC in a wide range of proceedings, from administrative matters to criminal trials. (8)

This Note advocates that courts approach cautiously the incorporation of VTC technology within the context of criminal trials. It focuses on the use of VTC in Massachusetts, which provides a case study of a legal regime providing robust protections for the confrontation right of defendants, as epitomized by the traditional case of a witness testifying live in court. This Note ultimately argues for the very limited use of VTC testimony in the near future, both in the Massachusetts criminal justice system and more generally: its use should be limited to exceptional circumstances based upon a showing of individualized, specific compelling need such as the protection of child witnesses and only upon development of adequate video quality and uniform enforcement standards. The generalized justification of a public health pandemic, while certainly mandating accommodations and postponements in court procedure, consequently should not meet the bar of a sufficiently individualized compelling need for the widespread, accepted use of VTC technology in criminal trials.

The Note proceeds as follows. Part II provides a brief overview of the development and current usage of procedures for remote testimony, including VTC. Part III examines the current state of the law regarding the confrontation issues raised by the use of VTC technology both at the federal level and within other state court systems. Part IV examines Massachusetts state case law governing the use of video testimony. Part V offers a normative argument against rapidly expanding the use of such testimony, primarily based on policy rationales regarding the limited effectiveness of cross-examination and other elements of confrontation. Part VI applies this argument in evaluating the use of VTC in light of the COVID-19 pandemic. A brief conclusion follows. This Note recommends a functional framework for courts adapting courtroom procedure in response to the pandemic and suggests how courts should think about confrontation rights and evidentiary standards in light of evolving technologies with the potential to change courtroom operations.

2. VIDEO TELECONFERENCE TECHNOLOGY

   VTC refers to the use of interactive telecommunication technology that features simultaneous video and audio transmission. This Note distinguishes between two-way videoconference technology, termed here VTC, and one-way closed-circuit telecommunication, which provides a one-sided live transmission similar to live television broadcasting. (9) VTC technology, with its bidirectional video and audio transmission, enables a court to see and hear a witness testifying from a remote location and allows the witness to interact with the presiding judge and attorneys in real time. Despite taking place from a remote location without the physical presence of a witness, VTC testimony occurs contemporaneously with court proceedings and is thus made in court, though virtually. Notably, in contrast to traditional live witness testimony, witness testimony accomplished through VTC lacks the element of physical presence.

   Videoconferencing technology has been regularly used by courts since the 1980s. (10) It has been applied in a range of proceedings, including arraignments and bail arguments, for purposes including convenience and protection of participants. (11) In the United States, the use of VTC in criminal proceedings has grown in response to federal legislation permitting the use of remote procedures in pretrial, trial, and post-trial proceedings and the natural expansion of computing power and video quality in the last few decades. (12) A handful of states have enacted statutes explicitly permitting VTC testimony in criminal proceedings. (13) Jurisdictions allowing the use of VTC technology tend to require that witnesses are able to see and hear courtroom proceedings in real time and that key court personnel--including the defendant, judge, jury, and counsel--are able to see and hear the witness's testimony simultaneously. (14) Jurisdictions may integrate additional safeguards to strengthen security and to reduce the risk of improper influence of the witness during testimony. (15) However, the Supreme Court has partially constrained the general adoption of video testimony, rejecting in 2002 an amendment to Rule 26(b) of the Federal Rules of Criminal Procedure that would have provided a uniform procedure for unavailable witnesses to testify by VTC. (16)

   In light of the COVID-19 pandemic, (17) Massachusetts courts have integrated VTC technology into criminal proceedings--for example, by conducting evidentiary hearings through the Zoom video platform. (18) The video platform allows parties to litigate and court staff to participate in court events, (19) which may be recorded for public viewing. (20) The Executive Office of the Trial Court of Massachusetts issued policy guidance governing the use of videoconferencing in evidentiary proceedings, according to which courts weigh several factors including "whether [the proceeding] is civil or criminal" and the "health risks of physical presence." (21) Massachusetts requires certain procedural checks before VTC technology may be applied at a court event. The use of VTC must be identified prior to its operation and is subject to confirmation by the court that the equipment is "functional [,]... parties are able to see and hear each of the participants... [and] the event is being properly recorded." (22) The use of VTC for criminal court events for a person in custody necessitates additional procedural steps to preserve the rights of the accused to consult with an attorney before, during, and after the proceedings. (23)

   The Massachusetts court system is already grappling with challenges to the use of VTC in light of the COVID-19 pandemic. (24) Notably, on December 7, 2020, the Massachusetts Supreme Judicial Court heard oral argument in Diaz v. Commonwealth, (25) which presents the issue of whether a virtual suppression hearing violates a defendant's constitutional right to confrontation. (26) This issue differs from the more general incorporation of VTC into criminal trials because Massachusetts has yet to address "whether there is a right to face-to-face confrontation at a motion to suppress." (27) However, the Supreme Judicial Court's holding may be applicable to the context of remote testimony in criminal cases generally if it finds that the confrontation clause attaches in evidentiary hearings. (28)

3. FEDERAL CONSTITUTIONAL ISSUES WITH VTC

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