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The Constitutional Right to Confront

John Pemble
Iowa Judicial Branch Building in Des Moines, May 17, 2013.

Tonight, the Iowa Supreme Court will consider the question, “Do witnesses in criminal trials need to testify in person? Or is remote, two-way video testimony just as affective?

The state of Iowa claims two-way remote video testimony is just as effective as in-person testimony. Additionally, video testimony is less expensive and less time consuming, and therefore there is large incentive to use remote video testimony more extensively.

Usually a judge allows remote testimony only when both the prosecution and defense consent. However, for Zachariah Rogerson’s trial for drunk driving, Dubuque County District Court Judge Monica Ackley determined video testimony was sufficient for out-of-state witnesses. 

Rogerson objected, and appealed to the Iowa Supreme Court.  He’s arguing remote testimony violates the Confrontation Clause of the Sixth Amendment of the U.S. Constitution, with ensures witnesses testify in front of the accused in open court.

The U.S. Supreme Court has never ruled on whether remote testimony violates the Sixth Amendment. Various appellate courts have reached contradictory conclusions.   

Jim Tomkovicz teaches criminal procedure at the University of Iowa College of Law. He says through the centuries its been believed witnesses are less likely to give inaccurate testimony, deliberately or otherwise, when in the same room as the accused.

“The witness will be more careful, not just not lie, but they’ll be more careful about saying exactly what they know if they have to do it in the presence of the defendant.”

Richard Friedman specializes in the confrontation right at the University of Michigan Law School. He says there is a long history of witnesses testifying in open court.

“This goes back 500 years or more in the Angelo-American system, and you can actually see it go all the way back in biblical times, in Roman times.”

Friedman generally doesn’t support video testimony, especially in criminal trials. However, he says Rogerson’s appeal could have an ulterior motive.   

“You have to wonder here, did the defendant really worry about, ‘Gee, I’m not getting a chance to—you know—look that witness in my eye,’ or is the defendant thinking, ‘Hey, I might as well object, because if I object, maybe they’re not going to be able to bring the witnesses in and then there is some testimony that won’t be introduced against me.’”

Fred Lederer is the Director of the Center for Legal and Court Technology at William and Mary Law School in Williamsburg, VA.  His center has studied remote testimony in civil trials.

“The conclusion was that remote witnesses gave the same jury verdict as witnesses in the court room.”

Despite positive results, Lederer says it’s a bit too soon to allow remote testimony for all criminal cases.

“I don’t know if we know enough that I would want to go ahead and use them for major criminal cases yet. But that’s not because I distrust the technology, it’s because I just want to be cautious.”

The Iowa Supreme Court could either rule all or no video testimony is legal. It may also establish guidelines for future cases where witnesses appear remotely.

Additionally, it’s possible for this case to make its way to Washington, where the U.S. Supreme Court could finally rule on the constitutionality of remote, video testimony—a technology inconceivable in the 1700s, when the Bill of Rights was written.