Virtual witness confrontation in criminal cases: a proposal to use videoconferencing technology in maritime piracy trials.

• Author: Dutton, Yvonne M.
• Position: I. Introduction through III. Some Approaches Used To Analyze When to Allow Prosecution Witnesses to Testify by Two-Way, Live VCT in Criminal Trials, p. 1283-1317

ABSTRACT

Maritime piracy is a serious problem, yet states are not prosecuting captured pirates with any regularity. One of the many reasons cited to explain this phenomenon focuses on the expense and difficulty of mounting cases of such international proportions and which involve evidence, suspects, victims, and witnesses from around the globe. In an effort to help close the impunity gap that surrounds piracy, this Article offers a potential solution to the difficulties associated with obtaining live witness testimony. It proposes a rule to allow witnesses under some circumstances to testify remotely by way of two-way, live videoconferencing technology. While remote testimony need not become the norm in maritime piracy cases, the proposed rule is carefully structured to balance both the public's and the defendant's interest in a fair trial.

TABLE OF CONTENTS I. INTRODUCTION II. TWO-WAY, LIVE VIDEOCONFERENCING TECHNOLOGY (VCT) III. SOME APPROACHES USED TO ANALYZE WHEN TO ALLOW PROSECUTION WITNESSES TO TESTIFY BY TWO-WAY, LIVE VCT IN CRIMINAL TRIALS A. Remote VCT Prosecution Testimony in International Criminal Courts 1. The International Criminal Tribunal for the Former Yugoslavia 2. The International Criminal Tribunal for Rwanda 3. The Special Court for Sierra Leone 4. The International Criminal Court B. Remote VCT Prosecution Testimony in Federal Courts in the United States 1. U.S. Supreme Court Cases Guiding Lower Court Decisions on Whether to Admit Remote Adult Prosecution-Witness Testimony a. Coy v. Iowa b. Maryland v. Craig 2. Federal Circuit Split on the Proper Test to Apply in Determining When to Permit Adult Prosecution Witnesses to Testify by Two-Way, Live VCT 3. The Supreme Court After Craig: Some Confrontation Clause Guidance, but No Resolution of the Circuit Split IV. THE PROBLEM OF MODERN MARITIME PIRACY AND THE NEED TO ENCOURAGE STATES TO USE THE AVAILABLE LAWS TO PROSECUTE PIRATES INSTEAD OF RELEASING THEM A. The Continuing Threat of Modern Maritime Piracy B. The International Law Authorizing Piracy Prosecutions C. The Tendency to Release, Rather than Prosecute, Captured Pirates D. The Need to Encourage More Piracy Prosecutions by Improving Access to Witness Testimony V. A PROPOSAL TO ALLOW TWO-WAY, LIVE VCT WITNESS TESTIMONY IN MARITIME PIRACY TRAILS A. Testimony Necessary to the Fair and Just Resolution of the Case B. Witness Unable or Unwilling for Good Reason to Testify in Person C. Transmission and Other Safeguards to Protect Defendant's Fair-Trial Rights VI. CONCLUSION I. INTRODUCTION

Advancements in technology have now made it possible for courts around the globe to secure the testimony of witnesses remotely. Through two-way, live videoconferencing technology (VCT), a witness's image and voice can be transmitted from any location in the world to the courtroom where the trial is taking place. (1) The benefits of using such technology can obviously be significant in circumstances where witnesses would have to travel great distances at great cost and at great inconvenience, while also risking their health or safety, to testify live at a trial. When seeking the testimony of foreign witnesses who are beyond the subpoena power of the court, the promise of remote testimony may be the only way to obtain that witness's cooperation and evidence. (2)

Notwithstanding that many commentators and courts seem to embrace the benefits of remote witness testimony in civil cases, (3) not all agree on the propriety of allowing prosecution witnesses to testify by two-way, live VCT against defendants in criminal trials. The arguments against remote testimony in criminal trials include the following: remote testimony may violate the defendant's right to be confronted with the evidence against him because the testimony is not "face-to-face"; (4) remote testimony cannot ensure truthfulness to the same extent as requiring the witness to testify live before the defendant; (5) and remote testimony does not provide the court and jury with the same opportunity as does live testimony to assess the demeanor and truthfulness of the witness. (6) On the other hand, a number of courts have concluded that the "interests of justice" and other exceptional circumstances justify allowing some witnesses to testify remotely against defendants in criminal cases. Various international criminal courts have permitted two-way, live VCT in some cases when the witness would otherwise be unwilling or unable to attend a trial in person because of safety, health, or work-related concerns. (7) In addition, although courts in the United States generally seem wary of allowing remote testimony in criminal trials, some have allowed adult witnesses to testify via two-way, live VCT under circumstances in which the witness would not otherwise be willing or able to appear at the trial because of safety or health concerns, or because they were beyond the court's subpoena power. (8)

This Article proposes a rule for use in maritime piracy cases that would allow witnesses under some circumstances to testify remotely by way of two-way, live VCT so as to better facilitate the prosecution of those cases. Maritime piracy is the oldest crime over which states can exercise universal jurisdiction. (9) Most states are also parties to the UN Convention on the Law of the Sea (UNCLOS), which codifies piracy's status as a universal-jurisdiction crime. (10) Yet, even as pirate attacks continue to rise in number and severity, (11) pirates face little risk that they will be prosecuted and punished for their crimes. Instead of prosecuting pirates, for the most part, the world community has been content to simply release them. (12)

One reason offered to explain this reluctance to prosecute focuses on the expense and difficulty of mounting cases of such international proportions and which involve evidence, suspects, victims, and witnesses from around the globe. (13) If live witness testimony is required, those expenses can be particularly substantial since the state would have to pay the costs of transporting witnesses who reside in different parts of the world to the trial. Obtaining live testimony is not only difficult from a cost perspective, however. States may not be able to compel nonnationals to attend a trial in person. States also may not be able to entice witnesses to attend if they are ill, working at sea, or concerned for their safety--which can be the case with crew members who have survived an attack or naval officers who have assisted in capturing pirates during an attack. Indeed, in his January 2011 report, the Special Adviser to the Secretary-General on Legal Issues Related to Piracy off the Horn of Africa, Mr. Jack Lang, noted that the requirement of in-person testimony was proving to be an obstacle to swift trials "either because the victims do not wish to go to lengths to give evidence, are afraid, or their employers may not allow them to testify." (14)

Allowing the state to produce some witnesses remotely under certain circumstances can alleviate some of the difficulties of obtaining the evidence necessary to successfully prosecute maritime pirates while at the same time furthering the interests of justice. This Article proposes that courts allow prosecution witnesses to testify by two-way, live VCT in maritime cases on a case-by-case basis in the interests of justice, upon proof by the requesting party that (1) the testimony is necessary to the fair and just resolution of the case, (2) the witness is unable or unwilling for good reason to travel to the court to testify in person, and (3) the transmission will use appropriate safeguards to protect the defendant's rights to a fair trial and to ensure that the witness understands the obligation to testify truthfully. This test balances the interests of the various parties to the proceeding and also ensures that the trial can proceed with the evidence needed to resolve criminal matters fairly, justly, and expeditiously. The state would not lose valuable witness testimony; would not have to pay great sums for witness travel; and could try cases more swiftly, without the need to accommodate witness travel schedules. Witnesses would be spared the inconvenience of traveling great distances, at a cost to their health, safety, or job security. Defendants' rights to a fair trial are also protected when witnesses testify remotely using two-way, live VCT: witnesses will have to confront defendants with their testimony; defendants and witnesses will be able to view each other; the defendant will be able to subject witnesses to contemporaneous cross-examination during the trial; and the court and any jury will still be able to see the witness, hear the testimony, and assess witness credibility. Defendants can even benefit from a rule that allows some witnesses to testify remotely because trials can proceed and be resolved more swiftly without requiring defendants to linger in custody awaiting their day in court. While it need not become the norm, allowing witnesses to testify remotely in maritime piracy trials under some circumstances would further the interests of justice and also prompt more states to embrace their duty to prosecute pirates instead of simply releasing them.

Part II of this Article discusses the technology of two-way, live VCT and some of its perceived advantages and disadvantages. Part III examines several approaches used to analyze the issue of whether to admit two-way, live VCT witness testimony against defendants in criminal cases. Specifically, this Part examines the rules and decisions of various international criminal courts, focusing on their reasons for allowing or denying remote prosecution-witness testimony in particular circumstances. With that same focus, this Part also examines the law in the federal courts of the United States as it relates to remote prosecution-witness testimony in criminal trials. Part IV follows with a description of the modern piracy problem, the...