In An Increasingly Technical Age, There Is Still No Substitute for Face-to-face Confrontation of Witnesses

Earlier this month, the New Mexico Court of Appeals clarified several issues regarding the 6th Amendment allows for confrontation of witnesses in criminal trial in State v. Patrice Chung. In New Mexico, a large number of criminal cases are dismissed for violations of the 6th Amendment confrontation clause.

The 6th Amendment of the US Constitution reads, “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” The specific boundaries of this protection are continually being defined and clarified by the United States Supreme Court as well as New Mexico state courts.

In State v. Chung, the Defendant was charged with distribution of marijuana. Before trial, the State filed a motion to allow an analyst from the New Mexico Scientific Laboratories Division (SLD) to testify via video conference that the substance was indeed marijuana, an element that was necessary to the charge.

The Defendant opposed the motion arguing that testimony through video conferencing violated his 6th Amendment right to confront a witness. Even though the court‘s own rules and the Rules of Criminal Procedure afforded the Defendant 15 days to respond to the motion, the trial court granted the State‘s motion the day after it was filed, without giving the Defendant a chance to respond.

At trial, the witness testified via video conference over the Defendant‘s objection and motion to strike the testimony. The objection and motion were denied two days after the trial. The trial court gave two reasons for the denial of both the objections and motion. According to the court, the Defendant‘s right to confrontation was not violated because (1) the analyst‘s testimony was observed by the jury as if the analyst would have personally testified at trial; and (2) the analyst would have had to travel six hours to attend the trial, and given the budget crisis currently facing the state, video conferencing saved money.

The New Mexico Court of Appeals disagreed and reversed the conviction on the grounds that the Defendant‘s 6th Amendment right to confrontation was violated. In reversing the Court of Appeals referred to a previous case–State v. Almanza. In that decision the New Mexico Court of Appeals did not allow a chemist from the New Mexico State Crime lab to testify over the telephone without a compelling need or reason that the chemist could not testify at trial.

In Chung, the State argued that testimony through video conferencing did not violate the confrontation clause, because unlike telephonic testimony, video conference allowed everyone in the court room to observe the witness while testifying, as well as allowing the witness to observe the Defendant and counsel.

The Court of Appeals disagreed. First of all, in a hearing conducted after the analyst from SLD testified at the trial, the analyst affirmed that during his testimony he was not able to see the Defendant, judge, or jury, and only saw defense counsel at certain times, which was contrary to the depiction given by the State in its argument to allow the testimony. The Court of Appeals reinforced the idea that every element of face-to-face confrontation is important to the right to confront witnesses, including the effect that seeing the Defendant, defense counsel, judge, and jury may have on a witness.

Second, the Court discussed the possible exceptions to face-to-face confrontation. Relying on a previous Supreme Court case discussed in Almanza, the Court of Appeals emphasized that that exceptions to face-to-face confrontation should be “narrowly tailored” and “necessary to further an important public policy.” The Court found that avoiding a long trip, trial scheduling problems, and inconvenience to the witness are simply not sufficient to justify an exception to the confrontation clause on the basis of a public policy need.

It seems that in the age of Skype and Facebook, there is still no replacement for face time when it comes to the 6th Amendment.

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