The Covid-19 pandemic changed how lawyers do our work. Depositions and meetings are conducted via Zoom instead of having everyone travel to one place.
But one thing that (mostly) hasn’t changed is trial. Everyone physically gathers in a courtroom: the judge, the lawyers, the jury, and the witnesses. Witnesses testify live for the jury, and everyone can see their demeanor and body language. What’s more, a witness for the government must face the defendant—sit in the same courtroom and testify against him and then face cross-examination by defense counsel.
What happens when a witness cannot travel for the trial to appear as a live witness? Are “criminal trials by Zoom” a real thing?
Not really. That meddlesome Constitution’s Confrontation Clause!
The Fourth Circuit recently affirmed the government’s use of video depositions during a September 2020 trial—a trial held in the height of the Covid-19 pandemic. In that case, the defendant and his counsel were physically present during the depositions and then the testimony was shown during the trial. See United States v. Smith, No. 22-4508, 2024 WL 4206110, at *15 (4th Cir. Sept. 18, 2024). The Court rejected the defendant’s Confrontation Clause arguments.
But this is not the typical outcome. The question remains whether the weakening of Confrontation Clause rights during the pandemic will remain limited to that unique circumstance, or whether courts will permit remote testimony more often.
Criminal trials certainly have their procedural failures but they remain an important check on governmental power. The Confrontation Clause requires that defendants be permitted to confront the witnesses against them. This constitutional limitation should be read in favor of the defendant. In my view, remote witnesses should be permitted only when the defense consents and there is good cause for using remote testimony.
Rules on Serving Subpoenas and Testifying at Trial
In civil cases, a party has the power to subpoena a witness who lives (1) “within 100 miles of where the person resides, is employed, or regularly transacts business in person; or (2) “within the state where the person resides, is employed, or regularly transacts business in person.” Fed. Civ. R. 45(c).
In a federal criminal case, however, the defendant has far broader subpoena power: nationwide service of process under Rule 17(e)(1). A defendant can issue a “subpoena requiring a witness to attend a hearing or trial . . . at any place within the United States.” This is an extremely powerful tool, given that live witnesses can make or break a defense.
But Rule 17 also means that appearing at trial may present challenges for witnesses since they may have to travel long distances to do so. Witnesses who are elderly, who are in poor health, or who are in the later stages of pregnancy may not be able to travel. Defendants may not be able to afford to have all their desired witnesses travel to appear at trial.
The Confrontation Clause and the Federal Rules
The Confrontation Clause of the Sixth Amendment says:
In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor . . .
This constitutional protection applies only to the defendant, not to the government.
Federal Criminal Rule 26 sets out a bright-line rule that witness testimony must be “in open court:”:
In every trial the testimony of witnesses must be taken in open court, unless otherwise provided by a statute or by rules adopted under 28 U.S.C. §§2072–2077.
This rule applies to witnesses brought by either the government or the defense, and it contains no exceptions.
Also relevant is Federal Criminal Rule 15, which permits deposition testimony of witnesses in criminal cases “because of exceptional circumstances and in the interest of justice.” Rule 15 depositions are very rarely permitted.
In Maryland v. Craig, 497 U.S. 836 (1990), the Supreme Court held that the Confrontation Clause did not categorically prohibit a child witness in child abuse case from testifying by one-way closed-circuit television. This meant that the witness testified outside the defendant’s physical presence and did not have to physically “confront” the defendant. The Court held that “a defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where the denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.”
Given the unique context of Craig, however, federal courts have been careful not to expand its reach. But some courts have nonetheless allowed two-way video testimony.
In United States v. Gigante, 166 F.3d 75 (2d Cir. 1999), the Second Circuit allowed the government to have a witness testify via two-way closed-circuit television “due to his illness and concomitant infirmity.” Then, in 2014, a district court there permitted a government witness to testify remotely when he lived outside the United States and refused to travel for his testimony. See United States v. Mostafa, 14 F. Supp. 3d 515 (S.D.N.Y. 2014). Notably, in Mostafa, defense counsel could be physically present with the witness to cross examine him.
The Ninth Circuit has also recognized that “there may be some cases in which it is truly necessary to forgo physical confrontation at trial due to a witness’s medical condition.” United States v. Carter, 907 F.3d 1199, 1208–09 (9th Cir. 2018). The Carter decision found that a late-term pregnancy by the alleged victim did not meet this standard, although a district court in that circuit has applied its reasoning to permit remote testimony to accommodate a witness’ health limitations. See United States v. Sapse, No. 2:10-CR-00370-KJD, 2012 WL 5334630 (D. Nev. Oct. 26, 2012).
Like the Ninth Circuit, the Eleventh Circuit has maintained a hard line against remote testimony. In United States v. Yates, 438 F.3d 1307, 1318 (11th Cir. 2006), the en banc Eleventh Circuit rejected the government’s request to use two-way video testimony, stating that “the prosecutor’s need for the video conference testimony to make a case and to expeditiously resolve it are not the type of public policies that are important enough to outweigh the [d]efendants’ right to confront their accusers face-to face.”
As you may have noticed, these are all pre-Covid cases. There is not very much case law post-Covid yet.
2002 Proposed Amendment to Federal Rules
It’s worth noting that there was an effort to change Rule 26(a) to permit remote testimony long before Covid.
In 2002, the Advisory Committee on Criminal Rules recommended (after years of consideration), and Judicial Conference proposed, a change to Rule 26 to permit remote testimony by “two way video” as long as the requesting party could meet three requirements:
(1) the requesting party establishes exceptional circumstances for such transmission;
(2) appropriate safeguards for the transmission are used; and
(3) the witness is unavailable within the meaning of Federal Rule of Evidence 804(a) (4)-(5).
But the Supreme Court declined to send the change to Congress, so it never went into effect. Justice Scalia issued a statement agreeing with the decision not to send the change in light of the Confrontation Clause concerns. He contended that “[v]irtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones.”
The Problems with Remote Testimony
There is no question that remote testimony is different than in-person testimony.
As one excellent article in the National Association of Criminal Defense Lawyers publication, The Champion, noted that “[v]ideoconference technology is not inherently equivalent to in-person testimony just because the parties can see one another in real time.” The article identified many of the problems:
With video testimony, the court-room door never opens to reveal the next witness; nuances in inflection, facial expressions, and hesitation get lost or chalked up to technical glitches; electronic feedback and internet lag interfere with a witness’s response; and the rhythm and visual impact of a cross-examination is disrupted as the witness and counsel attempt to discuss a document or piece of physical evidence remotely. There is no question that allowing some or all witnesses in a criminal trial to testify remotely by two-way videoconference would transform the nature of the criminal proceeding.
There is also a more nebulous problem. When a key witness against a defendant knows the defendant, such as when they are friends, family members, or co-workers, requiring the witness to literally face the defendant to testify against him is important. It is one thing to tell prosecutors in a voluntary interview in some conference room that the defendant broke the law; it is another to make the same accusation while looking colleague or friend in the face.
I have seen witnesses testify very differently from witness statements once they are in court. Now, this can sometimes be chalked up to unreliable 302s but is also a result of the very human challenge of looking at someone you know and lying about them in a way that can have very serious consequences.
Let the Defendant Decide
A defendant can waive his Confrontation Clause rights; the government cannot. Therefore, requests for remote testimony by a defendant should necessarily be on different footing than those from the government. This is not a “good for the goose, good for the gander” situation.
In my view, courts should permit a defendant to offer remote testimony under a lower good-cause standard, and they should prohibit such witnesses by the government unless the government can meet the more stringent Craig standard.
A court should require a showing of good cause to permit remote testimony by a defense witness – a showing of poor health, overseas travel during trial, a witness who has a profession where travel is a serious imposition (a doctor, for example), or the cost to the defendant using retained counsel. This standard will prevent abuse of the rule.
The federal rules should be interpreted in favor of a defendant’s right to defend against criminal charges. Rule 26 should not be read so strictly as to prohibit remote testimony in these circumstances. After all, the rule requires that testimony be taken “in open court.” As long as the remote testimony is presented by the defense during the trial and the government can cross examine the witness–right there in front of the jury–then this requirement is arguably satisfied.
Some courts have already held that a defendant may present remote witnesses with some showing of “necessity” rather than mere “convenience.” See, e.g., United States v. Pritchard, No. CR-23-00232-001-PHX-KML, 2024 WL 4347815, at *3 (D. Ariz. Sept. 30, 2024); United States v. Fox, No. CR16-100-JCC, 2018 WL 1517674, at *2 (W.D. Wash. Mar. 28, 2018); United States v. Swisher, 360 F. App’x 784, 786 (9th Cir. 2009).
But other courts have said no, even when it is a defense witness, finding that the language of Rule 26 is an exception-free rule. See, e.g., United States v. Adeoye, No. 4:21-CR-253(13), 2024 WL 113765, at *2 (E.D. Tex. Jan. 8, 2024).
Very often, there are financial constraints to presenting a complete defense to charges. Unlike the Department of Justice, which has the resources to bring any witness it wants to trial, and has government employees who are “witness coordinators” to make the process smooth, a defendant may not be able to afford to bring all witnesses physically to trial. Many of our clients make too much money to qualify for CJA counsel and are paying out of pocket for fees and expenses. But this does not mean that they have an unlimited budget. Demanding that they bring witnesses from far-away places to testify may mean that those witnesses cannot be brought to trial at all due to financial concerns. There are times when a witness has only 10 minutes of testimony to offer, even if it is on a key point, and yet the cost could be prohibitive.
Although remote testimony is not as compelling as in-person testimony, there are certainly times when a defendant may need a fact witness to testify when the only practice method is by video, such as to testify about a very limited factual issue—such as to explain an email or text message, or to identify participants at a meeting, or to describe what happened during a conference call. There may also be times where a defendant can have one witness testify about a key matter at trial but would greatly strengthen his defense by having a second or third witness confirm that testimony. This is not merely cumulative–having three people who attended a key meeting to confirm the defense theory of the case and to counter a cooperator’s alternative version may torpedo the government’s case.
The government should bring its witnesses to testify in-person at trial. After all, the government bears the burden of proof and it has the resources to bring its witnesses to trial in every circumstance. The Confrontation Clause is not there to protect the government. It has enough advantages already.