Confronting COVID: Witness Testimony During a Pandemic
In Minnesota, our courts are working to establish a new “normal,” with mixed results. Our Supreme Court is working to restore a fully-functional justice system despite the pandemic, which is a step in the right direction . . . until you realize that the very first attempted jury trial ended up resulting in a quarantine due to a COVID outbreak among those participating.
False-starts aside, we’re making progress. More and more hearings, specifically those that do not require presentation of evidence or testimony, are being held remotely via Zoom, Cisco Webex, or other video conferencing programs. Many defendants have made court appearances via phone, saving countless hours of travel for what can sometimes be a five-minute hearing. Our firm has even handled several Court of Appeals arguments remotely!
As everyone involved becomes more accustomed to video conferencing, the situation is becoming more routine, more “normal.” And the COVID pandemic has highlighted a lot of inefficiencies in the court system, along with some longstanding injustices regarding access to information. But there is always the risk of going too far in crafting a new normal.
One of those risks involves pushing out deadlines. While Governor Walz made an effort to prevent anyone from missing deadlines, child support obligations, and execution of wills until after the Peacetime Emergency Declaration is over, that law cannot control the many procedural deadlines that govern most court cases.
So, reestablishing our court system is absolutely a work in progress. The Supreme Court is permitting more and more “virtual hearings,” and there is even a handy website that can help unfamiliar defendants figure out how to attend their hearings remotely. But one major concern is how to handle remote virtual hearings that involve witness testimony, like suppression hearings or trials.
That’s because of a critically important constitutional provision: the Confrontation Clause. The importance of this clause cannot be understated, and now we’re seeing more and more just how important that constitutional protection is. There have been some contested evidentiary hearings held via Zoom, and the results have been . . . troubling. Cross examining a witness is one of the trickiest parts of being a defense attorney, and evaluating the credibility of a witness is one of the most important roles held by judges and juries alike. Witness testimony is a hectic, sometimes manic dance under the best of circumstances, but when it’s done in a series of small windows on a computer monitor, it becomes more of a sad joke.
Witnesses sitting alone in their basements can easily refer to documents and other information during their testimony that they could never access if testifying in court. Reading body language is almost impossible during a Zoom hearing, and what you do see could easily just be everyone’s general discomfort at talking into a web camera. The solemnity of the proceedings is almost completely absent during a Zoom meeting, which makes extracting the truth (or craftily exposing lies) that much more difficult.
But Minnesota courts are still looking to establish a new normal that includes witness testimony via video conferencing. There will be new cases challenging this practice, but for now, we’re largely in uncharted waters. While there is no clear prohibition against using video testimony to confront one’s accusers in court, the Supreme Court in Maryland v. Craig did lay out a roadmap for determining when such testimony was appropriate. Since then, there have been numerous other decisions stressing the importance of the Confrontation Clause, without disturbing the ruling in Craig.
Ultimately, as the practice of virtual hearings become more common it will be up to the defense community to challenge the use of video conferencing for witness testimony, bringing a case up the Supreme Court. In the meantime, other states are facing the same struggle. Just last week, the Tennessee Court of Appeals reversed a judge’s decision to let four prosecution witnesses testify remotely. That case didn’t explicitly say that those witnesses could never testify remotely – but it set the bar for such testimony far higher that it previously was, and shows promise for the future. Here’s to hoping that our new “normal” is not going to include bypassing the Confrontation Clause in the name of courtroom efficiency.