In the wake of the COVID-19 crisis, for the most part, Virginia courts have remained closed. While courts will hear certain emergency petitions, criminal trials are yet to resume. Indeed, courts across the country are struggling with how to conduct trials while ensuring that all participants remain safe.
One option that has gained considerable attention is the use of two-way video technology. In theory, there are various ways that courts can use this technology. One of the most common proposals involves having the jury sequestered in another room while viewing the testimony of witnesses over video rather than in person. This alternative involves the defendant, defense counsel, the prosecutor, the judge, and the witness all remaining in the courtroom.
Another alternative that some have suggested is allowing witnesses to testify remotely, through the use of two-way video. This option would likely be used in conjunction with the above example, where the jury is also removed from the courtroom. However, unlike the previous option, the witness would not be physically present in the courtroom.
The second option is not a new one. In fact, for years courts have wrestled with when and how to present the testimony of witnesses over video. The primary concern is with the defendant’s constitutional right to confront the witnesses against him, as guaranteed under the Sixth Amendment to the United States Constitution.
The Confrontation Clause of the Sixth Amendment provides “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” In a series of U.S. Supreme Court cases, the Court has developed criteria to determine when a witnesses’ in-person appearance is necessary to satisfy the Confrontation Clause. Specifically, the Court held that the right of confrontation “requires face-to-face confrontation and is absolute for all testimonial evidence unless a witness is unavailable and the defendant had a prior opportunity for cross-examination.”
Under the Court’s framework, all testimonial evidence must be presented in person, unless the defendant previously had an opportunity to cross-examine the witness. The big question then becomes, what constitutes “testimonial evidence”? While this question can be a complex one, typically, a statement that is being offered for its truth is considered testimonial. Thus, a witness describing their recollection of a crime would typically be testimonial.
Virginia courts will need to find a way to resume criminal trials at some point. And when they do, the procedures the court uses to present the testimony of witnesses will be crucial. Defendants should be wary of waiving any constitutional rights to confrontation, as this may preclude appellate review.
Have You Been Arrested for a Virginia Crime?
If you have recently been arrested for a crime and are awaiting trial, consider contacting the dedicated Virginia criminal defense attorneys at Robinson Law, PLLC. At our criminal defense law firm, we represent clients facing all types of serious crimes, including Virginia violent crimes, drug offenses, and gun charges. We have extensive experience defending the constitutional rights of our clients, and fight zealously their behalf. To learn more, and to schedule a free consultation, call (703) 844-3746 today.