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

In my first post on this topic, I set the stage for a discussion about the constitutionality of remote two-way testimony. In my second post, I explored the legal authority on that issue. In this final post, I will introduce two procedures might allow the State to achieve some of the benefits of remote testimony, while protecting the defendant’s confrontation rights.   Limited Two-Way Video Testimony   As discussed in my last post, the law is unsettled on whether two-way remote testimony runs afoul of the confrontation clause and by what standard that determination is to be made. However, one scholar has suggested that remote testimony may be constitutional if the procedure requires unavailability of the witness (as judged under a constitutional standard, not an evidentiary one) and allows for the defendant to be transported to the witness’s location, much in the same way as would be done for a pretrial deposition. Richard Friedman, Remote Testimony, 35 U. Mich. J. L. Reform 695, 704-05 (2002). While likely on more solid constitutional footing, such a procedure may not be feasible because of the significant disruption it would cause to the criminal trial, particularly where the remote location is some distance away. One alternative would be a procedure that allows remote testimony if a defendant makes a knowing, voluntary, and intelligent waiver the right to be present in the remote location. While some defendants may refuse to waive that right, others may be willing to do so. In fact they may be more [...]