The Right To Skype The Witnesses Against You?- Dallas Court of Appeals Case of the Day

“In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him”
6th Amendment- US Constitution
You know what I don’t use. A web cam. I’ve never installed one at my office or home. My macbook has one built in but it’s always off. I’m not sure I want the entire internet staring at me while I type in my pajamas.

This bring me to our case of the day. What happens when a State’s witness doesn’t want to appear in person?

Case- Acevedo vs. State-
Facts- Acevedo was found guilty of murder. One witness, his sister, lived in Chicago and testified via web cam.
Issue- Can a web cam satisfy the right of confrontation?

First what’s the law on confrontation? From the opinion

The Sixth Amendment of the United States Constitution as applied to the states through the Fourteenth Amendment provides, in pertinent part, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400 (1965). This clause, known as the Confrontation Clause, “guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 1016 (1988). The right includes not only a “physical examination” but also (1) ensures a witness will testify under oath, “impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury;” (2) forces the witness to submit to cross-examination, “the ‘greatest legal engine ever invented for the discovery of the truth;’” and (3) permits the trier of fact to observe the witness’s demeanor when giving testimony, “thus aiding the jury in assessing his credibility.” Maryland v. Craig, 497 U.S. 836, 845-46 (1990). The combined effect of these elements serves the central concern of the Clause: “to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Id. at 845.

In court cross examination is a great tool for discovering the truth. I can see, hear, and even smell the witness against my client. I’ve only conducted pleas via close circuit camera (jail chain in Bowie County) but never cross examined a witness.

Even in something simple as a plea there is no rhythm to the conversation. The cadence of dialogue is gone, broken up by “What did you say?” and “Can you repeat that?”
It doesn’t sound like much but it’s one of the ways I get to my client’s version of the truth. I’m not sure I could get the same results with Skype. With a client hundreds of miles away from the jury and me I would be at a disadvantage. What comes to mind first is exhibits. What if I wanted to ask the witness to read something? Or demonstrate something?

What about demeanor? You can’t tell much about a witness from a grainy head shot. For example, many cops testify with their notes in their lap. Something you couldn’t see via web cam. Finally, with me on a TV set they can control my volume and presence to the witness. Crescendo has less impact when the witness is starting at me through a netbook.

What did the court decide in this case? I will give the court credit for using very serious language in the opinion. They do not want to open the door to web cam testimony, but they do anyway.

In Texas, there are very few cases on allowing someone to testify remotely. They have been used, sparingly, for the terminally ill etc. In this case, the witness had a high risk pregnancy, which the court decides is the same degree of incapacity.

Question I have- I’m no doctor, but from what I’ve gathered about human pregnancy vs. terminal illness is that pregnancy usually ends within 40 weeks with the mother alive. Ergo, wouldn’t the witness have been available later?

We conclude the trial court did not err in finding Garcia’s medical condition constituted an exceptional circumstance that warranted permitting her testimony by remote two-way video conferencing or in determining the system used by the State did not deprive appellant of his Sixth Amendment rights. We overrule the third issue.