The onward march of litigation during the global pandemic forced many legal professionals to embrace the use of technology. As such, remote depositions took center stage.
While remote court proceedings benefit both attorneys and their clients, they also present unique challenges. A recently overturned conviction in Missouri highlights the new obstacles many lawyers now face.
Here’s what the overturned conviction tells us about what the future might hold for remote testimony.
Overturned Conviction Raises Questions About Remote Testimony
Earlier this year, Missouri’s highest court overturned the statutory rape conviction of Rodney Smith. The court found that the investigator’s video testimony violated Smith’s Sixth Amendment right to a speedy public trial by an impartial jury. This was because the defendant could not confront the witnesses against him.
The investigator gave remote testimony in 2019 because he was on paternity leave. He testified that the DNA evidence collected from the victim’s clothes matched Smith’s DNA. Since the victim recanted her accusations, the sentence of probation and conviction hinged on the DNA evidence.
Numerous federal and state courts ceased criminal trials for months during the height of the pandemic and only allowed remote trials if the defendants clearly agreed to forfeit their rights to confront their accusers in person. However, the case in Missouri differed because the judge went ahead with the proceedings despite the defendant’s objections.
The overturned conviction raised two crucial questions, including:
Is testifying remotely the same as being physically present in a courtroom?
Should remote defendants give up their Sixth Amendment rights?
Constitutional Rights Can Collide in Cyberspace
While the Missouri case clearly violated the defendant’s rights, another case in Maryland, that of Spinks v. State, showed us that the right to confront a witness in person is not absolute.
The Spinks case posed the question of whether or not it violated the defendant’s Sixth Amendment right to confront his accuser if the witness was not physically in the same room. During the case, the witness remotely testified via Skype due to a medical emergency.
What Attorneys Can Do
When considering how a remote testimony might impact a defendant’s Sixth Amendment rights, counsel needs to be especially mindful as to whether the technology being used is sufficiently reliable, and that it continues to be so throughout the course of the testimony.
In the Maryland case, the court found that Skype provided good audio and visual quality. But what would have happened if the internet connection was lost, there were unforeseen environmental distractions, or the audio quality suddenly became poor?
Additional things to consider include:
- What if the room where the witness is located cannot be fully vetted? Could another person be in the room coaching the witness off-camera? Can you require the equipment to show the entirety of the room where the witness is located?
- Body language plays a huge role in assessing credibility. But during remote testimony, most witnesses are only seen from the shoulders up. Is there a right to insist on a full-length view of the witness’s body when they testify?
Final Thoughts
A defendant’s Sixth Amendment right to confront a witness is at the core of our adversarial trial system. As technologies change, legal professionals must continuously consider the challenges that could impact a person’s constitutional rights.
When you plan your next deposition, take advantage of our advanced deposition tools. First Legal Depositions offers remote court reporting, remote videography, and full-time tech support for your remote depositions, arbitrations, court hearings, trials, and other proceedings.
Contact us today and let us know how we can help you with your next remote deposition!
