On June 22, 2020, the Michigan Supreme Court held that under the Sixth Amendment to the U.S. Constitution and the analog under the Michigan Constitution (Article I § 20), a criminal defendant’s right to confrontation are violated by the admission of an witnesses two-way interactive video testimony.
The decision addresses the development since Crawford v Washington, 541 US 36 (2004). The common law root of confrontation is often tied to the trial of adventurer and rapscallion Sir Walter Raleigh. Raleigh was sentenced to death based on a co-defendant’s testimony in front of a group of Queen Elizabeth, I’s advisors and a letter. After he was executed, the common law coalesced around the idea that our adversarial system of justice in England and her colonies required a right to confront an accuser. So important was the right that it was incorporated into the federal Constitution’s bill of rights, as well as the bill of rights of states at the Founding.
The constitutional discourse, animated in large part by the late Justice Scalia, swirled around whether the right was for face-to-face confrontation, or to cross examine, or for the accused and decision maker to observe the demeanor of the witness. Scalia lost the day in Maryland v. Craig, 497 U.S. 836 (1990), relegated to a dissenting opinion. By Crawford, his position became the Court’s.
The facts in Jemison were straight-forward. Mr. Jemison was convicted by a jury for a 1996 rape. The victim submitted to a rape-kit, which was lost with thousands of other kits. The kit was sent to an out of state laboratory for testing. When it came time for trial, defendant objected that the lab staff would not be present in court, and would testify by two-way video. At a hearing on objection, Judge Viviano ruled that as an expert, the policy underlying the need for confrontation was not implicated. When the objection was renewed in front of the trial judge, the trial judge stated that they would not have allowed the witness to testify by video without the defense’s consent, but that because Judge Viviano had already ruled on this issue, they would not overrule him.
The Supreme Court invited an amicus brief from Professor Friedman, a former colleague and co-author of of the opinion author Chief Justice McCormack. In his brief, the Professor argued the Michigan Supreme Court should not depart from the fundamental principle that the confrontation right requires an opportunity for the accused to have adverse witnesses testify against him face-to-face, to be breathing the same air as the defendant and fact-finder. He went on to argue that the U.S. Supreme Court, not the states, should be the one to decide on the virtual/face-to-face question. And if virtual confrontation is to be allowed, this Court should first prescribe a careful protocol as to how it should be conducted.
From the outset, it seemed the Court did not need to reach a decision on the constitutionality of the use of two-way video conferencing. There is a Michigan Court rule that specifically addresses the use of video-conferencing. The rule states:
As long as the defendant is either present in the courtroom or has waived the right to be present, upon a showing of good cause, district and circuit courts may use videoconferencing technology to take testimony from a person at another location in the following proceedings:
(1) evidentiary hearings, competency hearings, sentencings, probation revocation proceedings, and proceedings to revoke a sentence that does not entail an adjudication of guilt, such as youthful trainee status;
(2) with the consent of the parties, trials. A party who does not consent to the use of videoconferencing technology to take testimony from a person at trial shall not be required to articulate any reason for not consenting.MCR 6.006(C). (Emphasis added).
The trial court violated the rule by proceeding without the consent of defendant. This was not a harmless error, and should have been alone grounds to send the case back on remand. If the Court later decided to amend the Court Rules, given, say, advancements in technology, a global pandemic, or an order by them for Courts to use video conferencing to create a covid conscious “virtual courtrooms” and even “remote jury trials.” they are now constrained by this opinion.
The decision fails to address two pretty massive developments. First, video-conferencing has gotten to the point that the State Court Administrators office has rolled it out statewide in Courts. Second, we are in the age of Covid-19 and social distancing. While the decision being appealed from and briefing were pre-state of emergency, the oral arguments happened right before the first confirmed cases of the virus in Michigan. A virus that radically altered how Courts and society function. For the opinion to not even footnote mention this new reality is a missed opportunity.