TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: April 9, 2015
RE: Rule 52, N.D. Sup. Ct. Admin. R., Contemporaneous Transmission by Reliable Electronic Means
Now that Rule 52 has been amended to apply to all hearings by reliable electronic means, the Supreme Court has received several queries on whether the defendant in a criminal case should continue to be able to veto remote witness testimony. The Court would like the committee to discuss whether the defendant should continue to be allowed to decide whether to waive in person testimony as the rule now provides or whether the defendant should be required to affirmatively object to remote testimony. The Court would also like the committee to discuss whether there should be any exceptions that would allow electronic means testimony in the absence of a waiver by defendant. Judge Mattson's letter, attached, deals specifically with the issue of child sex abuse testimony and supports an exception to the waiver requirement in these cases.
The key case on whether remote testimony can be presented over a defendant's objection in a criminal case is Maryland v. Craig, 497 U.S. 836 (1990), which involved live one-way video testimony by alleged child sex abuse victims. The U.S. Supreme Court decided that the right to in-person, face-to-face, confrontation is not absolute, but it held that alternatives such as testimony by video may be allowed "only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." A copy of Craig is attached.
Craig was a 5-4 decision with a dissent written by Justice Scalia, who was adamant that there can be no exceptions to the requirement of in-person testimony under Confrontation Clause. There is an argument that Craig is no longer good law because it relied in part on Ohio v. Roberts, 448 U.S. 56 (1980) which was overruled by Crawford v. Washington, 541 U.S. 36 (2004). The trend of the Court's recent cases seems to be toward providing more protection to the right of in-person confrontation.
The 11th Circuit, sitting en banc, considered in United States v. Yates, 438 F.3d 1307 (11th Cir. 2006) whether two-way video testimony was subject to the Craig standard. In Yates, the government wanted to present, over the defendants' objections, live two-way video testimony from two witnesses in Australia who refused to travel to the U.S. to testify. The Yates court concluded that: (1) the Craig standard applies to two-way video; (2) a prosecutor's need to use video testimony to make and expeditiously resolve a case are not important enough needs to outweigh a defendant's right to confront witnesses face-to-face.
An ALR annotation, Closed Circuit Television Witness Examination, 61 ALR 4th 1155, gathers much of the case law on the topic of remote electronic testimony. The bulk of cases in which video testimony is allowed over a defendant's objection are child sexual abuse cases in other types of cases where such testimony was allowed, the witness generally had some sort of illness or disability that made appearing in court difficult. A case-specific finding by the court that includes application of the Craig factors is typically required before video testimony is allowed. Commonwealth v. Atkinson, 987 A.2d 743 (Pa.Super. 2009), attached, provides a detailed discussion of the types of cases in which video testimony is generally allowed under the Craig standard.
As a starting point for discussion, staff has prepared proposed amendments to Rule 52 that would create an exception to the defendant waiver requirement "when the use of reliable electronic means testimony is necessary to further an important public policy and when the reliability of the testimony is otherwise assured." This language is modeled directly on the language used in Craig.