ZOOM CROSS-EXAMINATIONS AND THE CONFRONTATION CLAUSE

First Jury Selection Via Zoom in Texas

An article in the May 11, 2020 ABA Journal, entitled “Could Zoom jury trials become the norm during the coronavirus pandemic” explored the constitutional hurdles to a virtual jury trial. The article quoted Locke Bowman, executive director of the MacArthur Justice Center in Chicago, as saying that “trials by video would likely compromise rights of defendants under the Sixth  Amendment’s Confrontation Clause, which allows them to confront witnesses.” Further the article states: “’A basis for conviction has always turned on a jury’s ability to assess the demeanor of the witness firsthand. When you take that away, you’ve lost something precious,’ Bowman says.”

Is this correct?

The Sixth Amendment does provide: “"in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him." The Fourteenth Amendment extends the right to the states. It applies to criminal cases; it does not apply to civil cases or other proceedings.

The United States Supreme Court has already addressed the question of whether the Confrontation Clause is violated when the defendant is able to see and cross-examine the accuser face to face via television.  The case was Maryland v. Craig, 497 U.S. 836 (1990). Defendant Craig was convicted of sexually abusing a minor. At the trial, the child, who had suffered severe emotion trauma and couldn’t testify in the defendant’s presence, instead testified from a room in which the judge, prosecutor and defense attorney were present. The jurors, who were in the courtroom, watched her testify live on television. On appeal, the Maryland Court of Appeals reversed the conviction, finding that the Sixth Amendment had been violated. Justice Sandra Day O’Connor wrote the majority opinion—a  5-4 decision—reversing the lower court and remanded it for further proceedings consistent with the decision.

The Craig decision held that because defense counsel was able to cross-examine the witness and the jury could see defense counsel and the child’s demeanor, the defendant had a constitutionally sufficient opportunity to confront the witness, testing not only the substance of her testimony but also her credibility. Justice O’Connor summed up her opinion as follows:

“In sum, our precedents establish that ‘the Confrontation Clause reflects a preference for face-to-face confrontation at trial,’ . . ., a preference that ‘must occasionally give way to considerations of public policy and the necessities of the case,’ . . .. ‘[W]e have attempted to harmonize the goal of the Clause—placing limits on the kind of evidence that may be received against a defendant—with a societal interest in accurate factfinding, which may require consideration of out-of-court statements.’ . .  We have accordingly interpreted the Confrontation Clause in a manner sensitive to its purposes and sensitive to the necessities of trial and the adversary process. See, e. g., Kirby, 174 U.S., at 61  (‘It is scarcely necessary to say that to the rule that an accused is entitled to be confronted with witnesses against him the admission of dying declarations is an exception which arises from the necessity of the case’); . . . ("Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process"). Thus, though we reaffirm the importance of face-to-face confrontation with witnesses appearing at trial, we cannot say that such confrontation is an indispensable element of the Sixth Amendment's guarantee of the right to confront one's accusers. Indeed, one commentator has noted that "[i]t is all but universally assumed that there are circumstances that excuse compliance with the right of confrontation." Graham, The Right of Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One, 8 Crim. L. Bull. 99, 107-108 (1972).” Maryland v. Craig, 497 U.S. 836, 849-50 (1990). (Citations Omitted)

Is the pandemic a “circumstance that excuse(s) compliance with the right to confrontation?” Also, is the change in the composition of the United States Supreme Court since the Craig decision likely to lead to the overturning of that decision? The Craig decision is well reasoned, and I think the answers to these questions are “Yes” and “No” respectively.