Confrontation After COVID

Abstract

The opportunity to face one’s accuser is a fundamental right guaranteed by the Sixth Amendment’s Confrontation Clause. It is a historical right that the Romans afforded to Jesus' disciples. And it is a right that may soon fall by the wayside in our new socially-distant reality and beyond.

Our legal system has utilized videoconferencing technology long before Zoom became a verb in the American lexicon. In Maryland v. Craig, the United States Supreme Court established a two-step “necessity and reliability” test for allowing video testimony offered by child survivors of sexual abuse against their alleged abuser. As we move towards an increasingly virtual world during the COVID-19 pandemic, courts, prosecutors, defense attorneys, and legal scholars are conflicted as to whether government witnesses in criminal trials should be permitted to testify by videoconference in our new socially-distant reality and beyond.

In this Note, I enter this debate by offering a practical proposal for trial courts and a normative one for the Supreme Court. I contend that district court judges should not extend Craig to permit accusatory witnesses to testify over videoconference during the pandemic. A Rule 15 deposition, I contend, is a more constitutionally-sound alternative to in-person testimony than is video testimony because it provides the defendant the opportunity to confront the witness in-person (albeit socially- distant). Normatively, I argue that the Court should remove its reliability and public policy analyses in Craig, which have been rendered impermissible by its later decision in Crawford v. Washington. Instead, the Court should adopt what I call “hierarchy of methods” approach, permitting video testimony only when securing in-court testimony or Rule 15 deposition of an essential witness is infeasible.

Keywords: Confrontation Clause, COVID-19