Does Remote Testimony Violate the Constitution?

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As the justice system becomes increasingly reliant on remote technology to cope with a backlog of cases during the coronavirus pandemic, an overturned statutory rape conviction in Missouri, where the state supreme court found that an investigator’s video testimony violated the defendant’s Sixth Amendment right to confront the witnesses against him, is raising new questions about video testimony in criminal court cases nationwide, reports the Associated Press.

The decision could eventually make this a test case for the U.S. Supreme Court, which has grappled with the legal ramifications of remote testimony for decades, but has yet to reach a sound conclusion on a  question that could mean yet more challenges for an already overburdened judiciary.

In Maryland v. Craig in 1990, the court upheld a trial judge’s decision to let a victim of child abuse testify remotely, saying the Sixth Amendment doesn’t guarantee an “absolute right” to in-person confrontations, especially if remote testimony “is necessary to further an important public policy.”

The dissenters said the Constitution provided no wiggle room and that the point was “to place the witness under the sometimes hostile glare of the defendant,” and were in the majority 14 years later in Crawford v. Washington, which asserted that the right to confront an accuser in person was near-to-absolute.

Research has raised serious questions about the widely held idea that people can gauge trustworthiness better in person and in many pandemic-era proceedings defendants have agreed to waive their Sixth Amendment rights so trials can go forward.

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