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What Rights Do Defendants Have To Personally Confront Witnesses Under The Sixth Amendment During The COVID-19 Pandemic In Michigan?

by | Jun 29, 2020 | 6th Amendment, COVID-19, Criminal Procedure |


The Sixth Amendment of the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him…”.  The Confrontation Clause is an ancient right stemming from Roman times to ensure that both the accused and the trier-of-fact can look the accusers in the eye and determine whether they are telling the truth.  The defendant has a chance to interrogate the witnesses against him to elicit facts that can be a defense to the charges, and the judge or jury can evaluate the responses and mannerisms of the witnesses to make a fair decision.  However, the COVID-19 pandemic ground the criminal justice system to a halt as governments employ protective measures to prevent the spread of the coronavirus.  One measure used to avoid infection and keep criminal proceedings moving is to permit parties, witnesses and evidence to appear remotely through video conferencing technology.  However, the Confrontation Clause presents a major issue to witnesses appearing in this fashion because the defendant has a right to personally face his accusers in court.  Does the Sixth Amendment allow witnesses to appear in court through video technology instead of being physically present?  Does the defendant have the right to demand the personal presence of witnesses during the COVID-19 pandemic?

To answer this question, it is important to understand what exactly the Confrontation Clause protects.  In Crawford v. Washington, 541 U.S. 36; 124 S.Ct. 1354; 158 L.Ed.2d 177 (2004), the U.S. Supreme Court ruled that the defendant’s right to confrontation is absolute for all “testimonial evidence” unless a witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.  541 U.S. at 68.  This landmark decision overruled Ohio v. Roberts, 448 U.S. 56 (1980) where the high court previously allowed out-of-court statements to be admissible where they bear an adequate “indicia of reliability”.  The Crawford decision guaranteed the right to face-to-face confrontation of the witnesses at trial.  Even if the witness is unavailable (e.g. left jurisdiction, medical emergency etc.) for live testimony, the out-of-court statements are still not coming into evidence unless the defendant had a prior opportunity to confront the witness through cross examination (e.g. pretrial probable cause proceedings).  There are some permitted exceptions (e.g. defendant caused witness to be unavailable or dying declarations), but the general rule is that the defendant has the right to have the witness be personally present.

Does video technology count as a face-to-face with the witness for the purposes of the Confrontation Clause?  In Maryland v. Craig, 497 U.S. 836; 110 S.Ct. 3157; 111 L.Ed.2d 666 (1990), the U.S. Supreme Court upheld a child sex abuse conviction where the child witness testified via closed-circuit television.  The majority opinion opined that the Confrontation Clause has a “preference” for face-to-face confrontation, but in this case the child witness was cross-examined by defense counsel via video and the general demeanor of the witness was visible in the court.  Therefore, the fundamental purpose of the Sixth Amendment Confrontation Clause was protected.  However, this case was decided under the “indicia of reliability” framework of Ohio v. Roberts and it predates the Crawford v. Washington opinion by fourteen years.  The validity of this decision has been called into question, but the Crawford court did not expressly overrule Craig.  Is video conferencing technology still an exception to the rule?

The U.S. Supreme Court has not answered this question.  However, the individual states are free to apply the protections of the Confrontation Clause more strictly than the federal judiciary and the Michigan Supreme Court recently rose to the challenge.  On June 22, 2020, the Michigan Supreme Court ruled in People v Jemison, __ Mich __;__NW2d__ (Docket No. 157812) that the defendant’s right of confrontation was violated when the trial court allowed the video testimony of a forensic analyst over defense counsel’s objections.  In that case, the defendant was convicted of first-degree criminal sexual conduct largely on the basis of a vaginal swab from a rape kit containing a mixture of DNA profiles that Michigan State Police forensic scientists believed were strongly associated with the accused.  The circuit court permitted the forensic analyst to testify by video at trial despite defendant’s objection at a pretrial motion hearing.  The Michigan Court of Appeals upheld this conviction and relied on the decision in Maryland v. Craig when it found that, although the defendant “was not able to confront the witness in the traditional sense”, the defense attorney was able to conduct cross-examination and the two-way interactive video allowed the courtroom to “observe the expert’s responses and reactions in real time…”.  The defendant filed an application for leave to appeal to the Michigan Supreme Court.  In a unanimous decision, the justices ruled that the face-to-face requirement controls and “Crawford makes clear, for testimonial evidence, that requirement may be dispensed with only when the witness is unavailable and the defendant had a prior chance to cross-examine the witness.”  The decision in Maryland v Craig is not overruled, but it should only be applied to the specific facts that it decided: namely, a child victim testifying against the accused by means of video technology (which do not apply to Jemison).  Since the forensic analyst’s evidence was “testimonial”, the defendant had a right to face-to-face cross-examination and there was no prior opportunity to cross-examine him.  Since the Sixth Amendment Confrontation Clause was violated, the conviction was vacated, and defendant was entitled to a new trial.

The Jemison decision was decided in the midst of the COVID-19 pandemic in Michigan.  This implies that the defendant’s right to confront his witnesses at trial will not be violated even if the state has an interest in limiting personal appearances in the courtroom to prevent infection.  It should be noted that the Jemison decision is limited to testimonial evidence at trial.  The Michigan Supreme Court has not yet determined if the Confrontation Clause guarantees the face-to-face personal presence of witnesses at other hearings that provide testimonial evidence such as preliminary examinations and evidentiary motion hearings (e.g. Walker hearings).  As criminal defense lawyers make objections to the appearance of witnesses via video conferencing during the pandemic, it is likely that these questions will be answered by the appellate courts in the near future.

If you or a loved one is charged with any crime and need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.


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