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The confrontation clause of the Sixth Amendment states “[i]In all criminal proceedings, the accused enjoys the right . . . be confronted with prosecution witnesses. »
This means that testimony against the accused must be live and present in the courtroom, in that, in the words of the United States Supreme Court:
“Confrontation:
(1) ensures that the witness will give his statements under oath – thus impressing him with the seriousness of the case and warning him of falsehood by the possibility of a penalty for perjury;
(2) compels the witness to submit to cross-examination, the greatest legal engine ever invented for the discovery of truth;
(3) allows the jury which must decide the fate of the accused to observe the demeanor of the witness during his statement, thus helping the jury to assess his credibility.”
And so one of the challenges of a successful criminal prosecution is getting all the witnesses into the courtroom, live and in person, at the appointed time, to prove their case before a jury.
Yes, parties have the subpoena process to compel people to attend court, and the contempt of court power to order that they be arrested and hauled into court if necessary.
But that only works if the witness isn’t in an unknown location outside the court’s jurisdiction, sick and hooked up to a ventilator, or allegedly “indisposed.”
Additionally, under the Fifth Amendment’s double jeopardy clause, the state only gets one crack at the defendant in a trial, and if something goes wrong, there’s usually no recovery.
This is one of the many factors that make trial work difficult and stressful, and also why a large majority of criminal cases end in negotiated plea agreements to avoid this stressful and uncertain process for both parties. a contested jury trial.
Almost all rules of law have exceptions. However, when it comes to the constitutional right of confrontation, our courts have tended to be quite strict in applying it to the benefit of the accused.
This is well illustrated in a case decided earlier this month by the Missouri Supreme Court in State v. Smith.
In Smith, the defendant was convicted of the statutory rape of his girlfriend’s 16-year-old daughter.
After the victim made the allegation, the following course of events occurred:
A physical examination was performed on the victim and DNA evidence was collected.
The victim recanted, denying the allegation against the accused.
The DNA evidence came back with a match for the accused, strongly refuting the victim’s recantation.
The accused was convicted by a jury at trial.
But there was a “but…”
It appears that the lab technician who collected, analyzed and matched the defendant’s DNA sample, evidence needed to prove the state’s case, was on maternity leave at the time of the trial.
Thus, the trial court allowed the lab technician to testify not in person in the courtroom, but via a live two-way video feed from a remote location, which has become a new way of life for courts, lawyers and litigants in the age of COVID. .
But, because this is a criminal jury trial in which the defendant is entitled to all constitutional protections, the defense objected to live video testimony on the grounds of confrontation – in that the witness of the laboratory was not present in court – and appealed against the conviction.
The case eventually made its way to the Missouri Supreme Court.
In a lengthy opinion, the court provides a very detailed and comprehensive examination of the issue of the confrontation clause and its history, and its connection to criminal rights in an increasingly video age.
The court opinion analyzed the different cases of confrontation clause in situations in which information from people not actually in the courtroom can be used as evidence.
Noting that violations of the confrontation clause are “presumed prejudicial,” the Supreme Court overturned the conviction.
In that case, the court noted that there was no determination that the video lab witness was unavailable.
Because the testimonial evidence was a critical part of the state’s case, the use of the witness’s live video testimony, without being present in court, was a constitutional flaw in the state’s case.
Ken Garten is a lawyer from Blue Springs. Email him at krgarten@yahoo.com.
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