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I will soon be a major witness in a criminal trial of another in the USA. I was present at the scene and was asked by state to testify at criminal trial. The defendant is facing felony charges against the person and property (burglary)

In meeting with prosecutors, I was briefed on importance of my role as an witness present on site and one of the victims. As I understand, absence of important witness testimony due to witness unavailability is a common reason for jury acquittal or nolle prosequi, refusal of state to prosecute any further.

During the trial days scheduled, I have important commitments at work and family commitments during upcoming holidays. It will be difficult to find a work replacement where I work on short notice and due to hiring freeze.

I am planning on seeing if a video taped testimony to be played at trial would suffice in lieu of actual face to face confrontation with defendant. I know defendants have right to have face to face confrontation with opposing witnesses under the Sixth Amendment.

I have reviewed SCOTUS precedent in Confrontation Clause cases such as Maryland v. Craig, Crawford v. Washington etc., but the circumstances in my case differs. (Victims are adults with the crime being of a non sexual nature, and 911 calls are not involved.)

How strict are state courts with criminal jurisdiction with enforcing an actual face to face opportunity for defendants to cross examine opposing witnesses?

How are courts likely to interpret video recorded testimony?

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    I'm sure someone will answer further, but there is a roughly zero percent chance that the state will present your video instead of your live testimony. The court does not care about any of the excuses you've proferred.
    – bdb484
    Nov 17 at 2:49
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    Given how the US criminal justice system works, there is an extremely high chance that the case will be settled by plea-bargain before the trial begins. So you may not have to worry too much. Nov 17 at 15:05
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    This is not a request for legal advice as this site defines that. It is asking what the law permits in a particular situation. Whether the OP will rely on the answer is not our concern, and the possibility that OP will rely on it is not a valid reason to close it. If this is closed, I will vote to reopen promptly. Nov 17 at 17:18
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    Just a side point, but: "It will be difficult to find a work replacement where I work [...] due to hiring freeze." That's not your problem: Your employer (not you) decided to freeze hiring, so your employer (not you) will have to face the consequences (work not getting done or lots of money spent on a temporary worker/freelancer/overtime for your colleagues). People get sick (on short notice, obviously) all the time, so someone being unavailable on short notice is normal.
    – Heinzi
    Nov 18 at 12:42
  • Are you a witness or a victim? Either, but not equally. Here in the UK - on whose law the US is based - witness unavailability is a common reason for jury acquittal and refusal of state to prosecute further… sad fact; no justification. Family or work commitments can't matter to the court; lenience is a bonus, not a right. Why not ask your lawyer whether video testimony sufficed, or how the Sixth Amendment mattered? Which state courts? How could cases such as Maryland v. Craig, Crawford v. Washington and whatever you didn't specify matter? Is Maryland Washington? More… Nov 19 at 21:34

2 Answers 2

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I am planning on seeing if a video taped testimony to be played at trial would suffice in lieu of actual face to face confrontation with defendant.

This does not satisfy the confrontation clause. At a minimum, a testifying witness must be subject to being cross-examined by defense counsel. The Confrontation Clause guarantees an opportunity for effective cross-examination. Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam).

For example, in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 564 U.S. 647 (2011), the Court ruled that admitting a lab chemist's report of his analysis into evidence, without having him testify, violated the Confrontation Clause. This would have been true even if the chemist had read the report aloud on videotape in response to a prosecutor's questions, rather than putting it in writing and signing it.

There are rare cases where an exception is made to allow child abuse victims to testify live via closed circuit television, rather than in the physical presence of the defendant and the defendant's lawyer.

Remote live testimony is rarely allowed in the case of adults. But technically feasible videoconferencing is a new technological development, so the constitutionality of live videoconference testimony subject to cross-examination remains a largely open issue in constitutional law. This is a particularly close question in Alaska, where there is a state constitutional right to participate in court proceedings and legislative hearings remotely (Alaska is the only jurisdiction in the U.S. to have such a right.)

Still, in the vast majority of cases, in person, live testimony in the courtroom is required as a matter of court rules that apply in criminal cases, whether or not this is constitutionally required.

There are also rare cases where video of an unavailable witness (e.g. a murder victim, or a witness who died before the trial was held) might be admitted in lieu of live testimony, either taken in a non-testimonial fashion, see Crawford v. Washington, 541 U.S. 36 (2004), or as a "preservation deposition" in which defense counsel had a right to cross-examine the witness and the defendant has a right to be present to assist the defendant's counsel, taken when an elderly or infirm or deportable witness is likely to be unavailable at trial.

Most states prohibit the use of preservation depositions in criminal trials when the witness is available to testify, but this requirement isn't necessarily a constitutional confrontation clause issue.

Also, again, neither of these exceptions would apply in the circumstances found in the question.

Footnote Re Hearsay v. Confrontation Clause

The video statement suggested in the question would also violate the non-constitutional court rule of evidence that prohibits hearsay testimony, subject to many exceptions, in most civil and criminal trials.

In a nutshell, the hearsay rule prohibits courts and juries from considering evidence of statements made by someone who is not a party to a case or their co-conspirator or affiliate, that was not subject to cross-examination, offered into evidence to prove the truth of the statement made by that person, unless one of about two dozen exceptions to the rule apply (none of which would be likely to apply under the facts set forth in question).

In the United States, the hearsay rule, and the confrontation clause that applies in criminal cases but not civil ones, heavily overlap. But the two rules excluding certain kinds of evidence from criminal trials are independent of each other and are not identical.

There is some testimony which is not excluded from evidence by the hearsay rule that is still subject to the confrontation clause.

For example, the lab reports that were held to be inadmissible without supporting live testimony from their authors subject to cross-examination in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 564 U.S. 647 (2011), would often be admissible under the hearsay rule of evidence in a civil case as business records.

Likewise, there is some testimony which is not excluded from evidence by the confrontation clause which is still barred by the hearsay rule.

For example, a statement made in a letter or email or text message by someone who was not a criminal defendant or co-conspirator who is available to testify that was not a business record, that was not intended at the time it was written to be used in a court case or a report to public officials, would still be barred from evidence under the hearsay rule in most cases. But it would not be excluded from evidence by the confrontation clause under Crawford v. Washington, 541 U.S. 36 (2004) because it was not testimonial in nature.

Of course, in a real world criminal case, both the hearsay rule objection and the confrontation clause objection must be satisfied for evidence to be admitted if the defendant's lawyer objects to the admission of the evidence.

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    in germany child witnesses (<12) are to be questioned in camera by the judge, especially to prevent the influence of parents on the questioning
    – Trish
    Nov 17 at 9:49
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    @Trish This often happens in family law cases in the U.S., but those cases are not subject to the confrontation clause since they are not criminal, and are generally not jury trials (there is usually a right to a jury trial and counsel for indigent defendants in a civil termination of parental rights for abuse or neglect case, however).
    – ohwilleke
    Nov 17 at 16:43
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    @Trish Just for the benefit of other readers in camera has nothing to do with cameras, video etc. It just means 'behind closed doors'. Nov 18 at 0:17
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    @Araucaria-Nothereanymore "Camera" being Latin for "chamber", of course. Nov 18 at 15:19
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Insofar as the accused must be allowed to ask questions about a witness's testimony, there is no chance at all that you would be permitted to just record questions asked by the prosecution and your responses (without defense having the opportunity to interrupt with objections to prosecution questions). There are circumstances where testimony can he admitted without the possibility of confrontation, when the witness is "unavailable". FRE 804 sets forth conditions under which certain evidence can be admitted is the witness is unavailable, but "unavailable" is a technical term, it does not mean "it would not be convenient for me to testify". That rule says what some of the grounds are for saying that a witness is unavailable, for example is exempted from testifying because of a legal privilege, or refuses to testify despite an order to do so, or because the witness is dead, or is mentally ill (etc).

There may be limited circumstances where your testimony can be videotaped, as provided under Washington law, but this is reserved for "dependent" people (e.g. mental of physical disability or extreme age, where there is a medical basis to the claim that the witness cannot reasonable be required to appear in court). This essentially "time-shifts" the testimony, in that the witness is allowed to confront the accuser, just not in the traditional time and place of the trial.

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    you probably meant "the accuser is allowed to confront the witness" in your last sentence
    – Ben Voigt
    Nov 18 at 2:45

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