Constitutional Purgatory: Shades and Presences Inside the Courtroom

Abstract

The Sixth Amendment confrontation clause requires the presence at trial of witnesses in criminal cases. Absent a compelling countervailing interest, such as safeguarding the emotional well-being and testimonial capacity of a child witness, distant testifying (by way of a live, closed-circuit two-way television transmission, say) is impermissible. Neither convenience nor mere necessity is enough to justify diminishing the defendant’s right to face to face confrontation. But what makes such images insufficient for purposes of confrontation? How much presence must a video provide to avoid casting a witness into “constitutional purgatory?” This query, paraphrasing a recent federal court opinion, serves as a springboard to a larger issue: How much presence ought visual images in general provide as authority for the legal judgments they help to produce? Addressing this larger question is part of the challenge of visualizing law in the digital age.

Keywords: trials, evidence, visual theory, rhetoric, law and technology, legal theory, legal studies, law and society, law and culture, popular legal studies, media

JEL Classification: K14, K41