COVID-19 ORDERS AND DIRECTIVES
The COVID-19 pandemic is a phenomenon that has created logistical barriers in our usual court proceedings. As a preliminary matter, as this firm is aware, the chief justice issued a Notice and Order on April 20, 2020 that held that municipal court criminal trials are to be held remotely only upon the consent of all parties. This is further reinforced in Directive #12-20 issued on April 27, 2020.
SIXTH AMENDMENT RIGHT TO CONFRONTATION AND NEW JERSEY
The State’s main witness must testify in-person during trial because the failure to do so violates defendant’s Sixth Amendment rights. Even in a civil law context, our courts consider variety of factors that are in the defendant’s favor. These factors should be mentioned for argument purposes and concluded with statement that “even in these cases, the court recognized that the analysis does not trump a defendant’s Sixth Amendment rights” and that “virtual conferences are in no way constitutionally equivalent to the face-to-face confrontation envisioned by the Sixth Amendment.”
Whereas several cases mention that a virtual appearance is permitted in criminal cases, the citation for this particular statement reference instances wherein a defendant in a criminal or traffic matter need not render in-person appearances so to protect the defendant’s rights, not that of the state or any alleged victims. in New Jersey.
1. R. 7:8-7: Defendant shall be present at every proceeding and at the imposition of sentence.. by the means of video link approved by the administration of the courts.
2. R. 7:6-3: Instances where Defendant may enter a plea by mail in a criminal matter.
3. R. 7:12-3: Instances where a Defendant may enter a plea by mail in a traffic matter.
There is one particular instance where the State’s material witness need not render an in-person appearance under the New Jersey Court Rules:
1. R 3:12-2: A State’s material witness, who is unable to testify at trial because of death or physical or mental incapacity may be deposed upon motion and notice to the parties, after showing that such is necessary to prevent manifest injustice. The deposition may be used during trial subject to evidentiary objections.
CONTEMPORANEOUS VIDEO TRANSMISSION AND THE DEFENDANT'S CONSTITUTIONAL RIGHT TO CROSS EXMAINE A MATERIAL WITNESS
Crawford v. Washington, 541 U.S. 36 (2004) is the leading case when it comes to an individual's constitutional right to confrontation. Crawford, however, remains silent on the novel issues created by the COVID-19 pandemic. Thus, the Courts in various jurisdictions look to Maryland v. Craig, 497 U.S. 836 (1990), which dealt with the issue of a witness' requirement to appear in-person versus through contemporaneous video transmission. In particular, the Tennessee Court of Appeals addressed this specific issue with regards to whether or not a Zoom, Skype, or Microsoft Teams appearance was the equivalent of an in-person appearance provided that the software is working at its full functional capacity.
The United States Supreme Court in Maryland v. Craig permitted video testimony of a witness, who was a minor, to prevent “serious emotional distress such that a child cannot communicate” and opined that this retained the defendant’s “essence of right of confrontation.” Such finding was based on public policy, and even there, the defense counsel was permitted to cross-examine the child in a separate room. Thus, the bar to testify through contemporaneous video transmission remains extremely high.
For instance, the Tennessee Court of Appeals, in State v. Dennis Lee Seale, Docket No. No. M2019-01913-CCA-R9-CD, invalidated a trial court’s order allowing the prosecution’s out-of-state witnesses to testify using teleconferencing technology.
Whereas the trial court in Dennis Lee Seale opined that the defendant would receive exactly what he deserves under his right of confrontation, The Court of Appeals in Tennessee opined that virtual appearances are in no way constitutionally equivalent to the face-to-face confrontation envisioned by the Sixth Amendment.
The Appeals Court there firmly disagreed with the trial court’s finding that “if the software works the way it should work, will be, in my opinion, as good as the person being here live.” Further, that two-way video conferencing allows for the witness to testify remotely and not come to the courthouse at all. The physical presence of the witness in the courthouse is, itself, a significant moment for the witness, during which any witness in a criminal proceeding understands the wide- ranging implications their testimony may have on the life of another.
Foregoing in person testimony potentially removes a witness’s understanding of the enormity of those implications. Therefore, the Appeals Court in Tennessee was not inclined to remove the requirement of physical presence of a witness in the courthouse, save for instances in which the most necessary public policy considerations arise. They held that face-to-face confrontation in Tennessee means simply that, face-to-face communication, unless there is some greater public interest that overrides the directives of Tennessee’s constitution.
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