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Face-to-Face Witnesses vs Zoom – Did The COVID Pandemic Change The Courtroom?
Some say the pandemic changed the way many Americans think about work, business, and even social interactions, usually for the worse. We look down at our phones when we drive, text our friends when we should call, and zoom or skype when we should meet. You might love this new normal or hate it, but there is one place where a line needs to be drawn, the criminal courtroom. Florida’s 4th DCA made this clear recently, and ruled that the Constitution protects us all from the erosion of dignity and respect caused by zoom and skype and “virtual” meetings in the right of confrontation of witnesses. Face-to-face witnesses are here to stay in Florida Courts.
Some background, the Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.”
The Case for Face-to-Face Witnesses
Recently the 4th DCA discussed the origins of the confrontation clause and its application in criminal courtrooms around the state in 4th DCA Julio Lopez v State 4D2023-0104 on Nov 13th 2024. This case makes clear a simple idea, that the constitutional right to confront the witnesses against you is violated when a witness testifies via Zoom rather than live in the courtroom. To be clear, zoom does not qualify as a face-to-face witnesses confrontation (yes I know we can see the face in zoom).
During Defendant’s trial, which began on January 3, 2023, the State requested that a U.S. Marshal testify remotely via Zoom due to his unavailability to appear in person before January 9, 2023, because of staffing issues at the U.S. Marshals Service. The trial court expressed a desire to finish the trial by the end of the week due to scheduling conflicts in the coming weeks. The State argued that the U.S. Marshal’s testimony was essential to show Defendant’s “consciousness of guilt” by describing his arrest on a bus in Texas, where he was located and detained following the alleged crime.
The trial court allowed the remote testimony (via Zoom), reasoning that it was potentially critical and necessary, and that staffing issues affected his ability to travel. The U.S. Marshal then testified via Zoom, detailing the arrest, but the defense chose not to cross-examine him. It isn’t clear why there was no cross examination, but that doesn’t matter because that is distinct not allowing face-to-face witnesses.
Defendant was convicted of two counts of capital sexual battery and sentenced to life in prison without the possibility of parole. On appeal, Defendant argued that allowing the U.S. Marshal to testify remotely violated his Confrontation Clause rights, as the justification for the remote testimony—staffing shortages and convenience—was insufficient to meet legal standards for necessity.
The Court made clear that the Defendant’s constitutional rights were violated by the witness providing virtual testimony, and that the waiver of the right to cross-examine the witness is not a waiver of the right to confront the witness face-to-face.
Two Judges write opinions here, and both are concerned with the erosion of the right to confront witnesses. Child witness cases like this are some of the most heinous and difficult problems for the justice system. Here the end result was affirming the conviction but only because the evidence of guilt was totally overwhelming (a scenario which defeats most trial and judicial errors in the lower court)
The Court even went so far as to describe the origins of the confrontation concept which goes back to ancient Roman times, and they explained the social l context of the framers at the time of the enshrining of the confrontation clause in our constitution – describing the abuses of the English courts in the trial of sir Walter Raleigh in 1603.
If rights are being restricted, they must only be restricted only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.
What is clear from this decision is that allowing testimony of a witness during trial over zoom because staffing issues, and having to make travel arrangements, is not allowed under our constitution. Zoom may be a way of doing business that we have become used to, but don’t let it creep into the criminal courtroom without an extraordinary cause. Face-to-face witnesses are required.
The Confrontation Clause guarantees the right to “confront” witnesses, it has “never [been] doubted[] . . . that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy, 487 U.S. at 1015, and it applies in all criminal proceedings. As you can see, the Supreme Court has laid the foundation of face-to-face witnesses for more than 40 years.
Learn More About Your Rights to Confront Face-to-Face Witnesses
If you’d like to learn more about trial procedure, illegal police or government practices, the right to have face-to-face witnesses, or have a criminal defense questions about your case, contact Gainesville Defense lawyer Matt Landsman. Matt Landsman is a Board Certified Criminal Trial Expert and he can help you with any criminal matter.