Virtual Confrontation: Is Videoconference Testimony by an Unavailable Witness Constitutional?

34 Pages Posted: 24 Aug 2008 Last revised: 10 Aug 2014

Matthew Tokson

Northern Kentucky University - Salmon P. Chase College of Law

Date Written: June 11, 2007

Abstract

Because United States courts have no subpoena power over foreign witnesses, securing their in-person testimony in criminal cases presents serious difficulties for prosecutors. Video conferencing technology may offer a creative solution to this problem. However, defendants often challenge video testimony on constitutional grounds, arguing that its use in court violates their Sixth Amendment right to confront the witnesses testifying against them. Courts have split over the constitutional status of video testimony, and its legality remains uncertain. This Comment resolves the split by examining the history, purpose, and jurisprudence of the Confrontation Clause and identifying the constitutional standards that courts should apply to video testimony. Analyzing foreign and domestic deposition procedures, the Comment identifies numerous situations where video testimony serves an important public policy and is constitutionally permissible.

Keywords: Confrontation, Confrontation Clause, Sixth Amendment, Video, Videoconference, Testimony

Suggested Citation

Tokson, Matthew, Virtual Confrontation: Is Videoconference Testimony by an Unavailable Witness Constitutional? (June 11, 2007). University of Chicago Law Review, Vol. 74, No. 4, 2007. Available at SSRN: https://ssrn.com/abstract=1249646

Matthew J. Tokson (Contact Author)

Northern Kentucky University - Salmon P. Chase College of Law ( email )

Nunn Hall
Highland Heights, KY 41099
United States

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