A overturned conviction in Missouri raises new questions about video testimony in criminal trials nationwide, and the verdict could have an impact on a judicial system that increasingly relies on remote technology as it struggles with a backlog of cases during the coronavirus pandemic.
The Missouri Supreme Court on Tuesday overturned Rodney Smith’s legal conviction of rape in a St. Louis case, finding that an investigator’s video testimony violated the defendant’s Sixth Amendment right to confront witnesses against him.
The investigator appeared remotely in 2019 because he was on paternity leave and testified that DNA evidence from the victim’s clothing matched the defendant’s DNA. The victim had since withdrawn her allegations, so the conviction and suspended sentence were based on DNA evidence.
Many state and federal courts suspended all criminal proceedings for months during the pandemic and only allowed remote proceedings if the defendants expressly consented to forfeit any right to face their accusers in person. The Missouri ruling differs from many pandemic-era cases because the judge acted despite the defendant’s objections.
State court systems typically handle millions of cases each year, the vast majority of which will not be directly affected by the legal issues raised in the Missouri ruling. But even if this decision only affects a few hundred cases, it would pose further challenges to an already overloaded judiciary.
The decision could eventually turn this into a test case for the U.S. Supreme Court, said Michael Wolff, a former chairman of the Missouri Supreme Court and a professor at the St. Louis University School of Law.
“This guy was convicted of using zoom technology and couldn’t have been convicted without it,” Wolff said. The country’s highest court has allowed exceptions to remote testimony by children to protect them from a potentially traumatic experience, but “You still don’t get away from the Constitution’s right to confrontation.”
The US Supreme Court has spent decades grappling with the legal ramifications of remote testimony, although the constitutional questions raised in the process have never been fully answered.
A landmark 1990 ruling in the Maryland v Craig case upheld a trial judge’s decision to remotely testify a victim of child molestation. In a 5-4 ruling, the court said that the Sixth Amendment does not guarantee an “absolute right” to face-to-face confrontation, especially when a remote testimony is “necessary to promote an important public order”. Alleviating the trauma of testifying against a child was said to be an overriding public concern.
Those who think differently said that the constitution left no room for maneuver and that it was a matter of “placing the witness under the sometimes hostile gaze of the accused”. Some of these judges were in the majority 14 years later in the Crawford v Washington case, which alleged that the right to face a prosecutor in person was almost absolute.
Recently, the Minnesota State Court of Appeals differed from the Missouri Court in that allowing a witness to testify remotely via live video would not violate a defendant’s rights.
During the pandemic, several state and federal courts at the litigation level exercised due diligence in not trampling the Roman-era principle that those charged with a crime that could cost them their freedom have the right to own theirs To face accusers.
In August, the Commonwealth of Kentucky Court of Appeals upheld a lower court ruling denying a prosecutor’s motion to video testify a witness in a fraud trial because traveling to the court would put him and others at risk To get COVID-19. The appeals court said that “general concerns about the spread of the virus do not warrant curtailing a defendant’s right to face-to-face confrontation,” and that prosecutors have never proven the witness was particularly vulnerable to COVID-19.
“The basic question was this: is a distant witness who testifies through technology functionally the same as there?” Said Fredric Lederer, Chancellor Professor of Law and Director of the Center for Legal and Court Technology at William & Mary Law School . “We don’t know whether this is constitutional at this point in time.”
Those who testify in person can help show that they are speaking voluntarily. People often consider body language when assessing truthfulness, but research has raised serious questions about the popular notion that people are better at personally assessing trustworthiness, Lederer said.
“There really isn’t any science to back that up,” he said. “In general. Quite the opposite.”
While the original Missouri case played before the pandemic began, the use of remote video during legal proceedings has increased exponentially since its inception.
“This potentially affects any criminal case in which a prosecutor wishes to produce a remote witness,” he said.
But in many pandemic-era trials, defendants have agreed to waive their Sixth Amendment rights in order for the trial to proceed. The Missouri case was different in that the defendant refused to see the investigator remotely.
“If there were no objection, the courts would, in my opinion, be careful to falsify the result of a conviction,” said Wolff.
In St. Louis County, for example, prosecutors are confident they were convicted during the pandemic, largely because defendants waived the right to confront witnesses in person, said Chris King, spokesman for prosecutor Wesley Bell. “So there shouldn’t be any appeal,” said King.
Defense attorney Nina McDonnell argued in the recently ruled Missouri case, saying the verdict was particularly important during the pandemic.
“It makes it clear that what matters should be what rights (defendants) want to give up or maintain, and not some other factor,” said McDonnell, an assistant public defender in St. Louis.
Two years after the COVID-19 pandemic, “we know it’s not the same” having video testimonies, McDonnell said. “That’s why the courts are trying to reopen.”
Associate press writers Jim Salter of O’Fallon, Missouri and Margaret Stafford of Liberty, Missouri contributed to this report.
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