The Virtual Right to Confrontation Under the Sixth Amendment to the Constitution

Steven D. Fought
Gonzaga University

Abstract

Although the revolution in technology initially made slow inroads into the legal field—perhaps not surprising due to the law’s penchant for tradition and precedent—the adoption of computer-mediated-communication has accelerated to the point where “virtual trials” are widely anticipated in coming years in civil cases. In criminal cases, however, the Confrontation Clause of the Sixth Amendment to the U.S. Constitution, which guarantees a defendant the right to confront his or her accusers, presents what might be an insurmountable obstacle to “virtual” trials—at least for the foreseeable future. Nonetheless, even that venerable protection, enshrined in the Bill of Rights, might one day be transformed by enhanced technology that meets the test of what constitutes “confrontation.”

Discussion

The legal field has been notoriously slow to embrace technology. Electronic filings were a rarity as recently as five years ago. Although the first “virtual trial” arguably was conducted entirely by videotape in a civil case in Sandusky, Ohio in 1971 (Clark 1975), it remains a stark exception to the rule.

Nonetheless, particularly for civil trials, the day when the virtual courtroom is commonplace might not be close at hand, but it is no longer unimaginable. As Lederer (1996) stated, “The courtroom is … the center of a complex system of information exchange and management” and “significant portions of evidence, including remote witness testimony” already are transmitted electronically. Miller et. al. (1975) found “no evidence to indicate the introduction of videotape presentations has any drastic or deleterious effect on courtroom communication between trial participants and jurors,” and in fact cited some evidence that jurors who viewed evidence on videotape retained more information than jurors who saw the same testimony presented live.

Criminal cases, however, pose an altogether different challenge. The Sixth Amendment to the U.S. Constitution states: “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him …” The presumption has long been that the defendant was entitled to a “face to face” confrontation.

The right is often traced to the Founders’ awareness of injustices in the English criminal courts that were exemplified by the conviction and execution of Sir Walter Raleigh on charges that were made ex parte and without his ability even to confront his accusers and cross-examine them.

To be fair, U.S. jurisprudence has not regarded the guarantee of confrontation for a criminal defendant to be an absolute right. In Craig v. Maryland (1990), the Supreme Court held in a 5-4 decision that a child witness in a child abuse case could testify via one-way closed-circuit television. The defendant and those in the courtroom could see the witness, but she could not see the defendant and others in the courtroom. Despite the absence of a two-way face-to-face confrontation, the Court said, the benefit of the child’s testimony by sparing her the emotional hazard of a confrontation with the accused outweighed the cost of possible abridgement of the defendant’s rights under the Sixth Amendment.

The four dissenters in Craig, an unlikely coalition consisting of Justice Antonin Scalia and the Court’s three most liberal members, including William Brennan, were outraged at what they regarded as a blatant traducement of the Confrontation Clause. Scalia wrote: “The Court … gives the defendant virtually everything the Confrontation Clause guarantees (everything, that is, except confrontation). I am persuaded, therefore, that the Maryland procedure is virtually constitutional. Since it is not, however, actually constitutional I [dissent].”

In a subsequent case, Crawford v. Washington (2004), Justice Scalia wrote a forceful unanimous decision that upheld the right of confrontation as the sine qua non of the reliability of testimonial evidence. Friedman (2009), author of the “Confrontation Blog,” characterized the Crawford opinion as having “transformed the doctrine of the Confrontation Clause.”

Analysis

The purpose of the Confrontation Clause is to guarantee the defendant in a criminal trial the right to confront the witnesses against him or her so that the witnesses are less likely to lie--either because they are under oath, because they face cross examination, or because of the confrontation itself. Tribe (1991) argued that "virtual confrontation" is insufficient because two-way confrontation, "in which your accuser is supposed to be made uncomfortable, and thus less likely to lie, really is the core value of the Confrontation Clause."

Tribe, however, characterized “virtual confrontation” only as one-way communication such as the situation in the Craig case involving closed-circuit televised testimony. Such one-way testimony, which Tribe rightfully attacked, clearly lacks the richness of, say, state-of-the-art videoconferencing in which the witness not only sees the defendant, but the judge, jury and entire courtroom.

In a not-too-distant future, the defendant and a hostile witness might appear to each other in a virtual courtroom as holograms, projected right into each other’s presence, right into their comfort zones, precisely as close as the witness stand is to the defense table in the actual courtroom. Just as in a traditional trial, the witness will have taken the oath under threat of perjury and will face the prospect of rigorous cross examination from defendant’s counsel. And, just as in a traditional courtroom, the defendant will be able to look the witness in the eye. The only difference will be that the witness and defendant will not be physically present in the same room.

Will this “virtual” confrontation thus satisfy the requirements of the Sixth Amendment’s Confrontation Clause? Or will the courts continue to require actual “face to face” confrontation, with its attendant richness?

Admittedly, the “virtual” confrontation that I have just described might lack an ineffable quality that is unique to traditional “face to face” interaction. The witness might not feel the same level of discomfort, knowing that the defendant is not present in flesh and bones, but only in an electronic representation. Will that awareness on the part of the witness necessarily increase the possibility that he or she will lie? Ultimately, does it mean the hostile witness has not been confronted by the criminal defendant? Justice Scalia might never accept anything less than traditional “face to face” confrontation, but it seems to me that advanced technology will eventually make much more difficult the determination of whether or not a defendant’s rights under the Confrontation Clause have been satisfied.

References

Clark, T. (1975). Introduction: Symposium: The Use of Videotape in the Courtroom. Brigham Young University Law Review, 1975, No. 2, 329.

Crawford v. Washington, 541 U.S. 36 (2004).

Friedman, R. (2009, Jan. 27). The Confrontation Blog. Message posted to http://confrontationright.blogspot.com .

Lederer, F. (2002, December). The Road to the Virtual Courtroom? A Consideration of Today’s—and Tomorrow’s—High-Tech Courtrooms. Sixteenth International Conference on Technology and Its Effects on Criminal Responsibility, Security, and Criminal Justice. International Society for the Reform of Criminal Law. Retrieved January 25, 2009 from http://www.isrcl.org/Papers/Lederer.pdf .

Maryland v. Craig, 497 U.S. 836 (1990).

Miller, G., Bender, D., Boster, F., Florence, B., Fontes, N., Hocking, J., et. al. The Effects of Videotape Testimony in Jury Trials: Studies on Juror Decision Making, Information, Retention and Emotional Arousal. Brigham Young University Law Review, 1975, 371-372.

Tribe, L. (1991). The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier. Retrieved January 27, 2009 from http://epic.org/free_speech/tribe.html .

U. S. Const. amendment VI.