Confronting Confrontation in a FaceTime Generation: A Substantial Public Policy Standard to Determine the Constitutionality of Two-Way Live Video Testimony in Criminal Trials

Louisiana Law Review Volume 75 | Number 1 Fall 2014 Confronting Confrontation in a FaceTime Generation: A Substantial Public Policy Standard to Determine the Constitutionality of Two-Way Live Video Testimony in Criminal Trials J. Benjamin Aguiñaga Repository Citation J. Benjamin Aguiñaga, Confronting Confrontation in a FaceTime Generation: A Substantial Public Policy Standard to Determine the Constitutionality of Two-Way Live Video Testimony in Criminal Trials , 75 La. L. Rev. (2014) Available at: http://digitalcommons.law.lsu.edu/lalrev/vol75/iss1/10 This Comment is brought to you for free and open access by the Law Reviews and Journals at DigitalCommons @ LSU Law Center. It has been accepted for inclusion in Louisiana Law Review by an authorized administrator of DigitalCommons @ LSU Law Center. For more information, please contact sarah.buras@law.lsu.edu . Confronting Confrontation in a FaceTime Generation: A Substantial Public Policy Standard to Determine the Constitutionality of Two-Way Live Video Testimony in Criminal Trials “Got a problem with me, say it to my face, to my face, to my face . . . .” 1 INTRODUCTION The judge asks the prosecution to call its next witness against the criminal defendant. The judge and jury watch as the bailiff administers the oath to the witness, who swears to “tell the truth, the whole truth, and nothing but the truth.” 2 Then, the testimony begins—but the witness stand is empty. This is because the witness is testifying via two-way live video. His image appears on a large screen in the courtroom, visible to everyone—judge, jury, attorneys, defendant, and spectators. 3 The witness likewise has his own screen on which he can see the entire courtroom. 4 The testimony proceeds normally: direct examination and then cross-examination. With the exception of the witness’s physical absence, the two-way live video testimony seems completely ordinary; and yet, the technological advancements that make this seemingly ordinary witness testimony possible present serious constitutional issues unforeseen by the Framers. This Comment addresses whether two-way live video testimony in criminal trials violates the Confrontation Clause of the Sixth Amendment, which ensures that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” 5 The Supreme Court in Maryland v. Craig upheld one-way live video testimony in the context of child abuse cases to protect child victims from the presence of the Copyright 2014, by J. BENJAMIN AGUIÑAGA. 1. LUDACRIS, Say It to My Face , on 1.21 GIGAWATTS: BACK TO THE FIRST TIME (Self-released 2011). 2. See, e.g. , Aidan C. O’Brien, Nothing but the Truth , THEGUARDIAN (May 22, 2012, 9:01 AM), available at http://www.theguardian.com/law/belief/2012 /may/22/abolish-oaths-court, archived at http://perma.cc/P2NH-SDMV. 3. See, e.g. , United States v. Yates, 438 F.3d 1307, 1310 (11th Cir. 2006) (en banc) (describing how people in the courtroom could see the witness on the screen). 4. See id. (“[T]he witnesses could see the temporary courtroom in the U.S. Attorney’s conference room.”). This view, however, is not always immune from technical difficulties. See id. n.2 (noting “some technical difficulties that impacted the abilities of the witnesses”). 5. U.S. CONST. amend. VI. 176 LOUISIANA LAW REVIEW [Vol. 75 defendant, based on the “important public policy” of protecting child abuse victims from further traumatization. 6 But courts and scholars have disagreed about whether and how to apply Craig to two - way live video testimony in contexts other than child abuse cases where there is no similarly important public policy. 7 The Court’s subsequent upheaval of Confrontation Clause jurisprudence in Crawford v. Washington especially complicates these disagreements because the Court rejected the concept of “reliability” that undergirded the Craig decision. 8 Additionally, the Court’s Confrontation Clause decisions following Crawford have obscured the extent of Crawford ’s holding, insomuch that scholars have described the decisions as “vague[], uncertain, unpredictable, a mess, almost arbitrary, incoherent, and an exercise in fiction.” 9 Amidst this unrest, prosecutors continue to use two-way live video testimony and defendants continue to challenge its use. 10 As the popularity of such testimony grows, 11 and the technological ease of 6. See Maryland v. Craig, 497 U.S. 836, 859–60 (1990); see also discussion infra Part I.B.2. 7. See discussion infra Part II. 8. See Crawford v. Washington, 541 U.S. 36 (2004); see also discussion infra Part I.B.3. 9. Dylan O. Keenan, Note, Confronting Crawford v. Washington in the Lower Courts , 122 YALE L.J. 782, 786 (2012) (citations omitted) (internal quotation marks omitted). Indeed, the disagreements surrounding Crawford are illustrated—and perhaps, complicated—by the Roberts Court’s willingness to hear Confrontation Clause cases nearly every term since Crawford . See Williams v. Illinois, 132 S. Ct. 2221 (2012); Hardy v. Cross, 132 S. Ct. 490 (2011); Greene v. Fisher, 132 S. Ct. 38 (2011); Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011); Michigan v. Bryant, 131 S. Ct. 1143 (2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Giles v. California, 554 U.S. 353 (2008); Whorton v. Bockting, 549 U.S. 406 (2007); Davis v. Washington, 547 U.S. 813 (2006); Mayle v. Felix, 545 U.S. 644 (2005). 10. Since 2012, the constitutionality of two-way live video testimony in criminal trials has been litigated dozens of times in state and federal courts. See, e.g. , Collins v. Cain, No. 13–0251, 2013 WL 4891923 (E.D. La. Sept. 11, 2013); People v. Novak, 971 N.Y.S.2d 197 (Cnty. Ct. 2013); State v. Seelig, 738 S.E.2d 427 (N.C. Ct. App. 2013); State v. Smith, 308 P.3d 135 (N.M. Ct. App. 2013); People v. Lujan, 150 Cal. Rptr. 3d 727 (Ct. App. 2012) (modified on rehearing on other grounds); United States v. Sapse, No. 2:10–CR–00370–KJD, 2012 WL 5334630 (D. Nev. Oct. 26, 2012); Rivera v. State, 381 S.W.3d 710 (Tex. App. 2012); Paul v. State, No. 12–10–00280–CR, 2012 WL 3101743 (Tex. App. July 31, 2012); People v. Buie, 817 N.W.2d 33 (Mich. 2012); Kramer v. State, 277 P.3d 88 (Wyo. 2012); United States v. Rosenau, 870 F. Supp. 2d 1109 (W.D. Wash. 2012). 11. In perhaps one of the most recent, infamous uses of live video testimony, the State of Florida attempted to introduce a professor’s testimony via Skype in George Zimmerman’s criminal trial for the shooting of Trayvon Martin. Suzanne Choney, Skype Pranksters Interrupt Zimmerman Witness Testimony , NBC NEWS (July 3, 2013, 5:35 PM), http://www.nbcnews.com/technology/skype-pranksters- 2014] COMMENT 177 using it increases, a workable and doctrinally sound constitutional standard for two-way live video testimony must be developed. This Comment argues that the Supreme Court should adopt a substantial public policy standard to determine the constitutionality of two-way live video testimony. This proposal primarily emphasizes that two-way video requires witnesses to do something that one-way video, such as the system used in Craig , does not: it requires witnesses to see the defendant and testify to the defendant’s face. Because of two-way video’s better approximation of true physical confrontation, this proposal lowers the bar that prosecutors must meet to use two-way live video testimony by replacing Craig ’s important public policy test with a substantial public policy standard. This standard would allow prosecutors to use two-way live video testimony in cases where the use of such testimony would advance public policies that, although not as important as protecting child abuse victims, are substantial enough to further the administration of justice. The substantial public policy standard would be doctrinally sound, grounded in reasoning that follows a fortiori from Craig . Moreover, the standard would be workable in practice, utilizing as guideposts lower courts’ decisions to provide a framework for determining the circumstances in which twoway live video testimony is constitutional under the Confrontation Clause. In an era where astounding technological advances are commonplace, two-way live video will only become faster, better, and easier. The proposed substantial public policy standard embraces this reality and embodies a pragmatic solution—a solution for confrontation in a FaceTime generation. 12 interrupt-zimmerman-witness-testimony-6C10528962, archived at http://perma.cc /8LS3-2QCY. The trial was streaming live on national television, and as a result, the general public could see the prosecutor’s Skype screen name. Id. Within seconds of the commencement of the testimony, dozens of people began to call the prosecutor, creating annoying “beeps” within the courtroom that signaled incoming calls. Id. The less-than-amused judge immediately discontinued the video testimony. Id. 12. FaceTime is a software service developed by Apple that allows users with Apple products to make two-way video calls to each other. See Daniel Eran Dilger, Inside iPhone 4: FaceTime Video Calling , APPLE INSIDER (June 8, 2010, 6:00 PM), http://appleinsider.com/articles/10/06/08/inside_iphone_4_facetime _video_calling.html, archived at http://perma.cc/J9VS-WELP. The ease of videoconferencing via technology like FaceTime seems destined to become a hallmark of many aspects of life. See, e.g. , Amit Jain, Visualize FaceTime as a Videowall—That Is What Next-Generation Video Conferencing Looks Like , BUSINESS 2 COMMUNITY (Sept. 19, 2013), http://www.business2community.com /business-innovation/visualize-facetime-videowall-next-generation-video-confer encing-looks-like-0620630#!tbkn7, archived at http://perma.cc/B7C8-KC62. 178 LOUISIANA LAW REVIEW [Vol. 75 Part I of this Comment provides an overview of the historical origins of confrontation and the Court’s evolving interpretations of the Confrontation Clause. Part II turns to the difficulties surrounding twoway live video...