Ruling raises new questions about remote testimony in court

A conviction overturned in Missouri raises new questions about video testimony in criminal cases nationwide, and the ruling could have ripple effects on a justice system increasingly reliant on remote technology as it is struggling with a backlog of cases during the coronavirus pandemic.

Missouri’s highest court on Tuesday overturned Rodney Smith’s statutory rape conviction in a St. Louis case, finding an investigator’s video testimony violated the defendant’s Sixth Amendment right to confront prosecution witnesses .

The investigator appeared remotely in 2019 because he was on paternity leave, testifying that DNA evidence taken from the victim’s clothing matched the defendant’s DNA. The girl had since recanted her charges, so the conviction and probation sentence rested on the DNA evidence.

Many state and federal courts have halted all criminal trials for months during the pandemic, only allowing remote trials when defendants have explicitly agreed to waive any right to face-to-face confrontation from their accusers. Missouri’s ruling differs from many pandemic-era cases because the judge moved ahead over objections from the defendant.

State court systems typically process millions of cases each year in total, the vast majority of which will not be directly affected by the legal issues raised in the Missouri decision. The number of trials has also dropped during the pandemic. But even if the ruling only affects several hundred cases, it would mean even more challenges for an already overburdened court system.

The ruling could eventually make it a test case for the U.S. Supreme Court, said Michael Wolff, former chief justice of the Missouri Supreme Court and a professor at St. Louis University School of Law.

“This guy was convicted for using Zoom technology and couldn’t have been convicted without it,” Wolff said. The nation’s highest court has granted exemptions for child witnesses to testify remotely to protect them from a potentially traumatic experience, but “you still can’t escape the fact that the Constitution says there is a right to showdown”.

The United States Supreme Court has grappled with the legal ramifications of remote testimony for decades, though the constitutional questions it raises have never been fully answered.

A landmark decision in Maryland v. Craig in 1990 upheld a trial judge’s decision to let a victim of child abuse testify remotely. In a 5-4 decision, the court said the Sixth Amendment does not guarantee an “absolute right” to in-person confrontations, particularly if remote testimony “is necessary to advance an important public policy.” He said reducing the trauma of a child’s testimony was a compelling public interest.

The dissenters said the Constitution provided no wiggle room and the purpose was “to place the witness under the sometimes hostile gaze of the accused.” Some of those same judges had a majority 14 years later in Crawford vs Washington, which asserted that the right to confront an accuser in person was virtually absolute.

Recently, the Minnesota State Court of Appeals differed from the Missouri court in ruling that allowing a witness to testify via live, remote two-way video did not violate a defendant’s rights.

During the pandemic, several state and federal trial courts have exercised caution in not appearing to trample on the principle, which dates back to Roman times, that those accused of crimes that could cost them their freedom have the right to confront their accusers.

In August, Kentucky Commonwealth Court of Appeals upheld a lower court’s decision denying a prosecutor’s request to let a witness testify by video in a fraud trial from prison because going to court would expose him and others to the risk of contracting COVID-19. The appeals court said “general concerns about the spread of the virus do not justify restricting a defendant’s right to a face-to-face confrontation” and that prosecutors never proved the witness was particularly vulnerable to the COVID-19.

“The fundamental question has been, is a remote witness testifying through technology functionally the same as being there?” said Fredric Lederer, chancellor professor of law and director of the Center for Legal and Court Technology at William & Mary Law School. “We don’t know if it’s constitutional at this point.”

Remote technology has helped reduce no-show rates in many areas by allowing people to attend even if they have to work or care for children, said David Slayton of the National Center for State Courts .

Yet, especially in criminal proceedings, testifying in person can help show that witnesses are speaking voluntarily. People often take body language into account when judging truthfulness, but the research has raised serious questions about the widely held idea that people can best gauge trustworthiness in person, Lederer said.

“There’s really no science to back this up,” he said. “Not at all. Rather the reverse.”

While the original Missouri case took place before the pandemic began, the use of remote video during court proceedings has grown exponentially since it took hold.

“This potentially affects all criminal cases where a prosecutor wishes to present a witness remotely,” he said.

But in many pandemic-era proceedings, defendants have agreed to waive their Sixth Amendment rights so trials can proceed. The Missouri case was different in that the defendant objected to the investigator appearing remotely.

“If there were no objection, I think the courts would be wary of upsetting the results of a conviction,” Wolff said.

In St. Louis County, for example, prosecutors are confident in the convictions they’ve secured during the pandemic, largely because defendants have waived the right to confront witnesses in person, Chris King said, spokesman for prosecutor Wesley Bell. “So there should be no grounds for appeal,” King said.

Defense attorney Nina McDonnell argued the recently decided Missouri case and said the decision was especially important during the pandemic.

“This makes it clear that it should depend on what rights (defendants) want to waive or maintain, and not any other factor,” said McDonnell, an assistant public defender in St. Louis.

Two years into the COVID-19 pandemic, “we know it’s not the same” to have video testimony, McDonnell said. “That’s why the courts are scrambling to reopen.”


Associated Press writers Jim Salter in O’Fallon, Missouri, and Margaret Stafford in Liberty, Missouri, contributed to this report.

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