The Missouri Supreme Court building in Jefferson City (photo courtesy of FLICKR/David Shane, licensed under CC BY 2.0).
One of the most cherished rights guaranteed to Americans is the right to look accusers in the eye and make them give evidence in public.
In the Sixth Amendment, it is stated as a criminal defendant’s right “to be confronted with the witnesses against him.” In the Missouri Constitution, it is the right “to meet the witnesses against him face to face.”
Two cases before the Missouri Supreme Court will test those rights as technology evolves and court operations are disrupted by the COVID-19 pandemic. The high court’s decision could resolve conflicting views from two of the state’s appellate courts.
In one case, tried before the pandemic, Rodney Smith of St. Louis was convicted of two counts of statutory rape in a trial that included testimony from a police lab employee conducted via two-way video. The Eastern District Court of Appeals concluded that Smith’s rights were not violated but transferred the case to the Supreme Court in April “because the use of two-way video testimony in a criminal trial raises important questions of general interest…”
In the other, from Jackson County, a 12-year-old juvenile accused of sexually molesting another child was placed in residential custody at a June 19, 2020, family court hearing. With access limited because of COVID-19 restrictions, only the judge, the judge’s staff, the juvenile and the juvenile’s attorney were present in the courtroom.
On Tuesday, the Western District Court of Appeals concluded that allowing the victim, the victim’s mother and a juvenile officer to testify remotely violated the juvenile’s right to confront witnesses.
In most cases, Judge Alok Ahuja wrote, the court would “normally reverse the circuit court’s judgment, and remand for further proceedings.”
The COVID-19 pandemic and restrictions on public activities “involve circumstances which have not existed in the United States in more than a century,” Ahuja wrote. “The manner of reconciling these unique circumstances with the Confrontation Clause rights of an accused juvenile or criminal defendant presents a novel question on which a uniform statewide resolution is necessary.”
In addition, he wrote, “there are likely multiple cases in which similar issues may arise.”
A decision in either case is likely months away because of court schedules for filing written briefs and scheduling oral arguments.
The number of cases that could be affected is unknown. Both cases are being handled by the MIssouri Public Defender’s Office. Mary Fox, director of the agency, said she could not comment on the specifics.
Fox also said she did not know how many cases assigned to her office have similar issues from trials conducted during the pandemic.
A group of 14 law professors who teach and write about criminal procedure, including former Missouri Supreme Court Judge Mike Wolff, filed a friend-of-the-court brief in Smith’s case arguing that the court should require testimony at trials to be conducted in-person.
“This court should make clear that emergency measures, despite their good intentions, cannot and should not circumvent constitutional protections,” states the brief, written by Chad Flanders of St. Louis University and Michael Durham of Dowd & Dowd law firm.
There are situations where essential testimony cannot be given in court and procedural rules, statutes and past court cases define them, Flanders said in an interview with The Independent. When a witness is being treated for illness and cannot be moved, or when a child is allowed to testify about abuse via video to avoid being in the same room with their tormentor, are among them, he said.
“Our point is that courts should approach this really carefully and not just automatically assume that virtual testimony is going to be as good as actual confrontation,” Flanders said.
Whether the Supreme Court resolves both cases the same way is likely to depend on whether it thinks they are similar enough.
In Smith’s case, only one witness testified remotely.
A police lab employee who collected a DNA sample from Smith couldn’t come to court for the August 2019 trial because he was on paternity leave under the Family and Medical Leave Act, according to the factual description in the Eastern District opinion. St. Louis police rules bar any work while on that leave, so he could not come to the courthouse without violating that rule.
Smith’s attorneys raised objections to the report linking his DNA results to the DNA analysis from the forensic exam of the victim. Only the lab employee could testify about the collection and handling of Smith’s sample.
To work around the limitations of the department rules, Circuit Judge Clinton Wright allowed the lab employee to testify remotely because he was “unavailable” for in-person testimony.
The testimony, crucial to the conviction, was the only testimony offered remotely.
“(B)ecause Hall was ‘unavailable’ and the live, two-way video procedure used by the trial court preserved all of the elements of defendant’s confrontation rights, the trial court did not abuse its discretion nor was there manifest injustice in admitting his virtual testimony,” Judge Mary Hoff wrote in the Eastern District opinion.
In the juvenile case, all the testimony was given remotely. Judge Jalilah Otto allowed it because of the COVID-19 pandemic, citing Supreme Court rules allowing online hearings and the 16th Circuit operating order to “limit in-person proceedings as much as possible.”
That wasn’t good enough, Ahuja wrote.
The Supreme Court order governing courts during the pandemic specifically exempted proceedings pertaining to juvenile delinquency. It also recognized that online proceedings could only be used “to the extent not prohibited by constitutional or statutory provisions.”
“We recognize the devastating toll that the COVID-19 pandemic has taken in the United States, and the substantial impact the pandemic has had on all aspects of American society,” Ahuja wrote.
However, unless the court makes specific findings to show why a virtual hearing is required, “generalized concerns about the virus may not trump an individual’s constitutional right to confront adverse witnesses in a juvenile detention proceeding,” he wrote.
The Sixth Amendment right to confrontation grew out of court practices in England and the American colonies that made one-sided statements, like affidavits, unacceptable as evidence in criminal trials without cross-examination.
Cornell Law School’s online Legal Information Institute says the U.S. Supreme Court described three purposes of the confrontation clause in an 1895 ruling. The first is to guarantee testimony and understand the serious nature of the proceedings. The second is to allow cross-examination.
The third is to “allow jurors to assess the credibility of a witness by observing that witness’s behavior.”
On video, Flanders said, jurors may only see the witness’s head. That means they miss if the witness’s leg is shaking or the witness drums their fingers, he said.
“They pick up on these things,” he said. “I think this is just human psychology 101, you are picking up non-verbal clues about what they are telling you.”
Remote testimony is more susceptible to tampering, Flanders said.
That was demonstrated in a Michigan hearing in March, when a defendant in a domestic assault case was in the same room as his alleged victim while she testified in a hearing. He was under a no-contact order and lied about his location. Police arrested him as the hearing concluded.
In the state’s brief in the Smith case, Assistant Attorney General Kristen Johnson wrote that the Missouri Supreme Court shouldn’t be swayed by arguments that video testimony lends itself to problems like the case in Michigan.
“(T)he question is not whether virtual testimony perfectly simulates a physical appearance: it is whether, under the circumstances of a given case, it provides sufficient ‘confrontation’ under the Sixth Amendment,” Johnson wrote.
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