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Video testimony: One-way, two-way, Skype, closed circuit: Let me count the ways….
This article is the result of a New Mexico Supreme Court case involving the use of Skype in a criminal case. It will present a brief history of the use of video in criminal proceedings in Illinois and other states. We are mindful that video can be utilized in two different formats: live video, such as television or the internet using Skype; or, in a prerecorded form done with video-recording cameras. Prerecorded videos for use as evidence in place of live testimony are commonplace in civil litigation to preserve testimony.1 Such video recordings are used where it is thought that a deponent may not be able or available to testify at a later trial. On occasion video testimony either prerecorded or live is utilized in criminal prosecutions, including trials, bond hearings and arraignments.
Technology is involved in virtually all phases of the law and, as they say, it is here to stay whether we like it or not. We love it, we hate it, we use it and we avoid it. From our offices to the courthouse to the prisons, technology is having a far-reaching effect. Technology, as it was initially introduced, ranged from word processing with floppy discs and dot matrix printers to fax machines with special paper, but at that time had all the magic of today’s digital, full color transmission wizards.
Historically, it appears that video technology started in the early 1970s with a closed-circuit TV broadcast between a lockup and courtroom for both arraignments and bond hearings in Illinois. The use of electronic images in those proceedings was aimed at saving money in transporting prisoners between jail and the courthouse. The savings were immediate and today such video use is available in the federal system and throughout the states. Criminal trial testimony may be presented via video in certain instances and is used primarily when a witness is not available and/or able to testify.2 Currently, no arraignments or bond hearings are conducted via video in Cook County.
The following discussion highlights the issues and notes some of the pitfalls and cautions to be considered when using technology, specifically video either for live transmission or prerecorded use. Let’s look at one example: video bail hearings that were initiated in Illinois courts in 1972. This concept expanded to Philadelphia courts in 1974 where a closed-circuit television system was installed for preliminary arraignments.3 Now, most states allow some phase of criminal proceedings to be conducted by video with the defendant at one location and the court at another.
Federal courts also experienced the expansion and application of technology with the passage of the Prison Litigation Reform Act of 19954 that required courts to seek to avoid moving prisoners between prisons and courthouses unless necessary, thFat is, for trials. Rule 10 of the Federal Rules of Criminal Procedure, effective December 1, 2002, allows videoconferencing for arraignments, and initial appearances; however, the defendant’s consent is required.5
Federal courts even encourage use of video in certain complex cases and provide the specifications for using compatible video equipment, installing and answering questions with an AV specialist.6 In certain types of litigation where specific local rules have been promulgated, namely patent litigation, there is a suggestion to use an instructional video in the opening phase of such a trial.7
The physical appearance of a prosecution witness at trial or otherwise giving testimony in a deposition is a serious matter that involves a sixth amendment constitutional right that guarantees the accused an opportunity to confront witnesses against them.8
An interesting and perhaps significant scenario was recently addressed by the Supreme Court of the State of New Mexico on an appeal of a life sentence.9 A defendant’s “right to be confronted with the witnesses against him” provides a defendant with much more than the right to be in the room when the witness is testifying.
Thomas’ murder trial started 22 months after his arrest and pretrial custody and 26 months after the murder. He was on trial based solely on his DNA found on the murder weapon, a brick, along with the victims. Thomas denied he ever met the victims. During the ensuing time before trial, a forensic analyst who examined the DNA and rendered an opinion on a match had moved out of state.
The prosecution proposed that the expert be permitted to testify at trial via two-way video, known as Skype, over the Internet. Defense counsel initially agreed, having interviewed the expert via Skype in preparation for trial; however, a week later counsel expressed hesitation during a hearing at the use of Skype. The defense had rethought their position and expressed concern that the use of Skype would violate the Confrontation Clause. The State countered that it had not issued a subpoena for the forensic expert based on the statement of defense counsel. The defense moved for a continuance; however, the judge held that the defendant had waived any objection to the use of the two-way video by defense counsel’s initial informal agreement.10 It is significant that the Supreme Court stated that “At no time did either the district court or defense counsel discuss any permanent waiver of confrontation rights with Defendant directly.”11
Interestingly, while a speedy trial violation may appear obvious, there were many ameliorating factors that weakened the issue. First, the causes of the delays were, in part, due to a judicial vacancy and the absence of the forensic expert who had moved out of state. Also, the court found that the delays were not caused solely or to a large degree by the State, and, finally, defendant could not demonstrate any prejudice or damage caused by the delay that did not also prejudice or damage the State.12
During the two week trial, the DNA expert testified via Skype. Defendant was convicted of murder and aggravated kidnapping. The district court imposed consecutive sentences of life imprisonment for the murder and 18 years for the kidnapping.
In reversing13 and granting a new trial on the murder charge, the New Mexico Supreme Court found that defendant had not knowingly waived his right to confrontation even though his attorney had initially agreed then changed his mind only to have the trial judge view such tactic as a request for a continuance of the trial. The Supreme Court found that at no time did the court or defense counsel discuss any permanent waiver of confrontation rights with defendant directly. Similarly, the Court was unimpressed with the State’s argument that defense counsel had permanently waived his client’s confrontation rights when the State relied upon defense counsel’s statement waiving the out of state witnesses’ physical presence at trial that caused her unavailability. The Court noted that there was nothing in the record that during the one week between the discussion of waiver and defense counsel’s reconsideration and objection had any connection with the witness’s absence. The Court stated additionally that nothing in the record indicated that the State was engaged in the complex and time-consuming procedures in the courts of two states required by the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings. NMSA 1978 Secs 31-8-1 to 6. The court observed that the State apparently never initiated any procedures under the Uniform Act to trigger any waiver by estoppel theory.14
In ruling, the court stated:
The DNA profiles were offered as the sole evidence that implicated Defendant in this crime, clearly influencing the verdict. Therefore, “face-to-face confrontation” should have happened, per Thomas’ constitutional rights.15
This holding appears to establish a virtual per se rule requiring face-to-face confrontation (in the absence of a waiver) where the missing witness is critical or the sole direct proof of guilt. However, the court gave several reasons for its ruling that could suggest that if these defects were not present the teleconferenced testimony would be allowed.16
In reversing, the Supreme Court held that presentation of Skype testimony violated Defendant’s confrontation rights. The court’s analysis of the law addressed a long standing dilemma with respect to testimonial evidence delivered from outside the courtroom. The process pits two apparently conflicting U.S. Supreme court opinions dealing with the confrontation clause against each other. One opinion – Maryland v. Craig allows the omission of confrontation and cross-examination if the testimony is necessary to further an important public policy and deemed reliable. The second opinion – Crawford v. Washington demands cross-examination regardless of the perceived reliability of the testimony.
The 1990 ruling by the U.S. Supreme Court in Maryland v. Craig17 allowed a child victim of sexual abuse to testify through a pre-recorded video, due to her emotional trauma of being within sight of her tormentor. The victim was in a room separate from the judge, jury and defendant, who all could hear and see the testimony. The court held that the face-to-face confrontation requirement is not absolute, but also not easily dispensed with. Thus, the right to confront an accusatory witness may be satisfied absent a face-to-face confrontation at trial only where denial of such is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.
Fourteen years later, he 2004 decision in Crawford v. Washington18 involved an adult defendant accused of attempted sexual assault as part of a larger felony case. There, the court shifted its stance and instead set the standard that abandoned the “reliability of the testimony” test and adopted a fundamentally new interpretation of the confrontation right by limiting the admissibility of testimonial statements of witnesses not present for trial to only those instances where the defendant had an opportunity to cross-examine. The potential for cross-examination had to be present when prior testimony or remote testimony is to be admitted into evidence.
In light of this, the Thomas court also noted that:
The United States Supreme Court has never adopted a specific standard, for two-way video testimony, but we doubt it would find any virtual testimony an adequate substitute for face-to-face confrontation without at least the showing of necessity that Craig requires19 [i.e. a sensitive, minor victim and a sensitive subject matter].
Two seemingly unrelated but important confrontation cases from Illinois, one before the U.S. Supreme Court Williams v. Illinois,20 and a recent case decided by the Illinois Supreme Court, People v. Terry Hood,21 give some very succinct guidelines on the admission of prior or remote testimony at trial. In Hood, the severely beaten victim, Mr. Bishop, gave his evidence deposition and was subject to cross-examination prior to trial. At time of trial he was found to be physically and mentally unable to testify. The defendant objected to the state using the victim’s video evidence deposition. However, the court allowed the use, citing the victim’s unavailability to testify and the safeguards afforded defendant at the deposition where defendant had the right to be present and the witness (victim) was cross-examined by defendant’s attorney. In Williams, a DNA expert relied on a DNA profile in a report of an outside laboratory that matched a sample of defendant’s blood with a sample from the crime scene. In a 5-4 majority opinion, the Supreme Court considered defendant’s argument that the expert “went astray” when she testified the DNA profile was found on swabs from the victim’s vagina. The swabs were labeled as such in the samples from the testing lab. The expert testified to identify the swabs that were tested. Defendant contended that verbal statement was hearsay and crossed the line between allowable and prohibited testimony because the expert in identifying the source of the sample was affirming the source of the samples. Needless to say, in a rape case the source of the sample was critical.
The dissent22 in Williams would require the person conducting the initial test on the sample to testify and authenticate the test, and, be subject to cross examination. Otherwise, the test was to be considered hearsay, admitted to prove the truth of label on the sample submitted with the earlier report.
As we recall from the New Mexico Supreme Court’s holding in Thomas, the guidelines (requirements) for confrontation and cross examination are strictly enforced if the questioned testimony is the only testimony against the defendant. Currently, the test for remote testimony is that it must be subject to cross examination and must be reliable. The reliable test is not quite as concrete as subjecting proffered testimony to cross-examination.
Now, what is required in Illinois? Do we follow Craig (no waiver required in unusual circumstances) or do we follow Crawford and allow emote testimony as long as there is cross examination of the witness. What if defendant refuses to waive his right to confront the witness and refuses to appear at the deposition? The Illinois Supreme Court recently dealt with a case that had all three of these issues. In People v. Terry Hood, cited earlier, defendant was charged with attempted murder, home invasion, aggravated battery of a senior and unlawful restraint for severely beating Robert Bishop, 69 years old with a hammer.23 The State filed a motion to take Bishop’s video evidence deposition pursuant to Supreme Court Rule 414 that allows such procedure if there is a substantial possibility the witness will not be able to testify. The State argued that since Bishop had suffered severe head injuries, his condition was likely to deteriorate, and he may not have been available to testify at trial, the deposition was allowable. The request for the deposition stated that defendant would be provided the opportunity for confrontation and meaningful cross-examination.
Defendant’s attorneys objected to the motion contending that due to Bishop’s severe injuries he was only able to communicate by shaking his head and therefore no meaningful cross examination could occur. However, the court granted the motion with the caveat that if Bishop could only shake his head, the deposition would be inadmissible. Over defendant’s objection, the order also directed the Sheriff of Cook County to transport defendant Terry Hood to the deposition.24 An Assistant State’s Attorney and two assistant Public defenders attended the deposition. Defendant did not attend.
During the deposition Bishop testified about the attack, identified a photograph of the hammer defendant used to strike him two times, and described the attack before he passed out from his injuries. Bishop was cross-examined by defendant’s attorney.
Because the witness was unavailable at trial and his deposition testimony had been subject to cross-examination, the State asked that the video evidence deposition be admitted under Illinois Rule of Evidence 804(b)(1) as an exception to the hearsay rule. Defense objected, claiming Bishop’s injuries were not so severe and that he was available to testify. At a hearing on the motion, Bishop’s attending physician testified that his mental condition rendered him unavailable to testify.25 The court found that defendant had the opportunity to confront and cross-examine the witness. The court also stated that since there were no objections raised on those questions, the deposition was entered into evidence and published to the jury.
It is important to note that, unlike in the New Mexico case (Thomas26) where the key testimony was given two-way via Skype video, additional evidence was presented by the State and the proofs did not rely exclusively upon the video deposition.27 Neighbors testified they heard arguing between defendant and Bishop before the attack; another witness testified that defendant had admitted to the crime; and, DNA evidence tended to implicate defendant. The jury found defendant guilty of aggravated battery of a senior citizen causing great bodily harm. Defendant was sentenced to 22 years in prison.28
The Appellate Court reversed the admission of the deposition because defendant had not signed a waiver of his right to be present at the victim’s deposition. The court decided the appeal on the validity of defendant’s waiver through his attorneys. In rejecting such a waiver the court held that the requirements of a valid waiver of a constitutional right were not satisfied and that defendant did not waive his confrontation rights pursuant to Illinois Supreme Court Rule 414. Ill. S. Ct. R. 414(e) (eff. Oct. 1, 1971). HN6 Rule 414 provides that defendant and defense counsel may waive defendant’s confrontation rights at a deposition conducted under Rule 414 in a written filing.29 Ill. S. Ct. R. 414(e) (eff. Oct. 1, 1971).
In a vigorous and compelling dissent, Justice Connors stated that defendant’s absence from the victim’s deposition did not amount to second-prong plain error that must be so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.30 The dissenting Justice added that defendant could not be allowed to benefit from his wrongdoing:
Moreover, the only reason why the victim was not subsequently in the courtroom at trial was due to defendant’s own wrongdoing. See People v. Stechly, 225 Ill. 2d 246, 331, (2007) (Thomas, C.J., dissenting, joined by Karmeier, J.) (defendant forfeited his confrontation rights because the witness’ unavailability at trial was caused by defendant’s intentional criminal act). For the foregoing reasons, I would find that defendant’s claim did not rise to the level of second-prong plain error and affirm the trial court’s decision.31
The Illinois Supreme Court began its opinion reversing the Appellate Court with a grim reminder of the havoc defendant had visited on his victim who was unable to testify at the trial due to the injuries defendant had inflicted. The court applied the two prong test for reversible plain error that requires the error to be so serious that it affected the fairness of defendant’s trial and that it challenged the integrity of the judicial process.32 The court found no reversible error since defendant had adequate notice of the victim’s deposition, had the right to be present, and had attorneys present who cross-examined the victim.
The Supreme Court then stated that the deposition was evidence that must pass Crawford tests to be admitted: that defendant the right to be present and to cross-examine the deponent/witness who will not be available for trial.33 The Supreme Court noted that the Appellate court majority opinion not only did not conduct these Crawford tests but did not mention Crawford in its opinion.34
The court agreed with defendant that is was error not to obtain a written waiver of his attendance at the deposition as required by Supreme Court Rule 414. However, the court noted that the written waiver is not a Constitutional requirement but one required to insure defendant is informed of the deposition and his ability to attend. It was clear from the record that defendant had been informed of his rights.35
One additional issue for review is the examination of when and where a defendant must be moved to attend a deposition. Such an instance arose in United States v. West, involving depositions of witnesses in Afghanistan for a case pending in District Court for the Northern District of Illinois.36 Neither the Federal Rules of Criminal Procedure nor the Confrontation Clause requires defendant be transported out of the United States to confront and cross examine witnesses against them. The solution was to conduct a two-way video conference to allow cross examination of the witnesses and allow defendant to observe.
Conclusion: The question of use and application of video testimony and/or evidence in a criminal trial is about confrontation and cross examination rights as provided by the Sixth amendment. The more serious the case, i.e. possible punishment, more observance and steps must be taken to avoid reversible error. First, it is important that defendant be afforded an opportunity to attend or in the alternative provide a written waiver (not just the attorney) to allow a witness to testify via videoconferencing in defendant’s absence. An ability to cross examine the witness must be available and in most cases would be required. In cases where evidence is tested or profiled by several steps, such as with DNA, the recent (2012) 5-4 decision from the U.S. Supreme Court suggests that it may be advisable to bring an expert from all testing labs evaluate a sample to authenticate the testing. Additionally, in a live testimony situation for a trial, the cameras and screens must be arranged to resemble a courtroom experience where the witness can see the attorneys, judge and jury, and, be seen by each.
Perhaps more important than the look-a-like set up of the technology, arrangement for confrontation and cross examination, the real question for me is: If I were to be accused, would I like the complaining witness, victim, police officer, lab technician, eye witness against me, as a defendant to testify via Skype? Probably not.
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