Two-Way Remote Testimony: Will It Pass Muster? (Part II)

In my last post, I set the stage for a discussion about the constitutionality of remote two-way testimony. In this post I will explore the authority bearing on that question.   Guidance from the United States Supreme Court   The question whether remote two-way testimony satisfies the confrontation clause has not been resolved in a case decided by the United States Supreme Court. However, even before Crawford, the Court expressed concern about the constitutionality of such a procedure. In 2002, the United States Judicial Conference submitted to the Court a proposed change to Rule 26 of the Federal Rules of Criminal Procedure that would have allowed for the use of remote testimony in federal criminal trials. Although the Court typically serves as a conduit for proposed rule changes from the Conference to Congress, see Richard Friedman, Remote Testimony, 35 U. Mich. J. L. Reform 695, 695-96 (2002), the Court declined to submit this proposed change. This action is a significant cautionary note regarding the constitutionality of remote testimony. The proposal submitted by the Conference would have amended Rule 26, making a clarifying change to part (a) and adding a new part as follows: (b) Transmitting Testimony from a Different Location. In the interest of justice, the court may authorize contemporaneous, two-way video presentation in open court of testimony from a witness who is at a different location if: (1) the requesting party establishes exceptional circumstances for such transmission; (2) appropriate safeguards for the transmission are used; and (3) the witness is [...]