The Confrontation Clause in Video Conferencing

As criminal court systems across the country attempt to alleviate costs, some states have started using video conferencing in place of live testimony. Pennsylvania, for example, uses the technology primarily for preliminary arraignments.[1] Courts find video conferencing enticing for the money it saves in transportation and security costs.[2] Pennsylvania claims that over 15,700 court actions happen by video conferencing every month; doing these proceedings through video conferencing rather than live, saves the state over one million dollars a month and nearly twenty-one million dollars a year.[3]

Though cost savings may be high, the detriment to defendants and their right to the Confrontation Clause may be at issue. Among other things the Sixth Amendment promises that a defendant “be confronted with the witnesses against him. . . .”[4] In Maryland v. Craig the Supreme Court held that the Confrontation Clause is not violated by closed circuit video testimony from minors in abuse cases; and that depending on the case, “face to face” confrontation is not always necessary.[5]  The Court resisted a literal reading of the Confrontation Clause to avoid eliminating all the hearsay exceptions the Court had previously deemed satisfactory.[6] At the same time the Court acknowledged the value and importance placed on “face to face” confrontation in “Anglo-American court proceedings.”[7]

More recently the issue of two way video conferencing was examined by the District Court for the Middle District of Alabama in United States v. Yates.[8] The government claimed it needed the testimony of two witnesses who were in Australia; the witnesses refused to travel and the government’s use of two way video conferencing was granted.[9] Using a test established in Maryland v. Craig which requires a hearing and an important public policy to be served[10], the court determined that no hearing was held and the government’s public policy reason of fact finding was not sufficient to deprive the defendants of confrontation.[11] The court stated “[t] he simple truth is that confrontation through a video monitor is not the same as physical face-to-face confrontation.”[12]

While court systems have an interest in keeping their costs at bay, they also have an interest in protecting the rights of defendants. It is essential for fact finders to observe witnesses’ entire demeanor including non verbal cues such as “the manner in which they enter the courtroom, their willingness to make eye contact with trial participants, and their ability to control nervous gestures as they deliver their testimony.”[13] In the future, because of video testimony, defendants may be put in a position where they have to fight for their Confrontation Clause right.



[1] Ben Present, Judges Applaud Videoconferencing, Defense Lawyers Cautious, Law Technology News (June 16, 2011), http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202497388660&slreturn=1&hbxlogin=1.

[2] More Criminal Courts Turning to Videoconferencing, Experienced Criminal Lawyers (Nov. 30, 2011), http://www.experiencedcriminallawyers.com/criminal-courts-videoconferencing/.

[3] Administrative Office of Pennsylvania Courts, PA Courts Expand Use of Video Conferencing, Saving $21 Million Annually in Defendant Transportation Costs, PA. Courts (June 7, 2011), http://www.courts.state.pa.us/NR/rdonlyres/36906F45-C993-4844-A3E1-CC3A68B4300B/0/VideoConfExpdsPACts_060711.pdf.

[4] U.S. Const. amend. VI.

[5] Maryland v. Craig, 497 U.S. 836, 857-58 (1990).

[6] Id. at 848-49.

[7] Id. at 846.

[8] United States v. Yates, 438 F.3d 1307 (M.D. Ala. 2006).

[9] Id. at 1310.

[10] See Craig, 497 U.S. at 850, 855.

[11] Yates, 483 F.3d at 1316.

[12] Id. at 1315.

[13] James W. Kraus, Virtual Testimony and Its Impact on the Confrontation Clause, Champion Magazine (May, 2010), http://www.nacdl.org/public.nsf/01c1e7698280d20385256d0b00789923/f07d58a1b25bfece8525776e005e64e6?OpenDocument.

Author: Valerie Werse

Valerie serves as the Managing Articles Editor for the 2012-2013 year. Prior to law school Valerie received her B.A. in History and Classical Studies from Gettysburg College as well as an M.A. in Public History from Central Connecticut State University. She spent several years working in museums before deciding to pursue law. She is very interested in civil and human rights as well as immigration law. During law school she has worked at the American Civil Liberties Union - New Jersey and as part of the Human Trafficking Prevention and Prosecution Project in the Essex County Prosecutor's Office.

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