Plug Pulled on Live Video Testimony

The first part of this article described the Wrotten case (People v. Wrotten, 2008 NY Slip Op 10226, 2008 WL 5396862 (App. Div., 1st Dep't, Dec. 30, 2008)), in which the complainant alleged that a health aide attacked and robbed him. The aide said the complainant grabbed her breasts and that she “picked something up and hit him” and ran. Because the complainant was too fragile to travel, the court granted the prosecution's request to allow him to testify by video.

The conclusion of the article herein discusses the issues raised by video testimony.

Issues Raised

While physically in California, the complainant, when giving the televised testimony, could see the courtroom, judge and defendant. The extent the witness could see courtroom participants was in dispute. Those in the courtroom could see and hear the complainant. Ultimately, the defendant was convicted of assault in the second degree, but acquitted of the more serious charges. The defendant appealed, claiming error in permitting the complainant to give televised testimony.

The appellate panel split 3-2 in favor of reversal. The majority held that the trial court lacked authority to allow the televised testimony. The dissenters concluded that, in the absence of direction from the Legislature, the trial court retained discretion, given the complainant's travel-preventing physical infirmities, to determine the steps necessary to permit the prosecution to proceed without the complaining witness being physically present in the courtroom.

The majority opened with a discussion of the constitutional right of “confrontation.” In the U.S. Constitution, the Confrontation Clause of the Sixth Amendment dually protects a criminal defendant as to: 1) the right to physically face those who testify against him; and 2) the right to conduct cross examination. The former right guarantees the defendant a “face to face meeting” with witnesses appearing before the factfinder. This is said to create an undeniably “profound effect upon a witness standing in the presence of the person the witness accuses” and, much as the right of cross examination, it ensures the “integrity of the factfinding process.” Wrotten at *2 (citing and quoting from Coy v. Iowa, 487 U.S. 1012, 1016, 1017, 1020 (1988)).

While the Confrontation Clause may not guarantee criminal defendants an “absolute” right to a face-to-face meeting with witnesses at trial, such as in the case of Maryland v. Craig, 497 U.S. 836, 844 (1990), where the U.S. Supreme Court upheld a child victim of abuse giving one-way closed circuit television testimony, or in the case of People v. Cintron, 75 N.Y.2d 249, 253-254 (1990), where the New York Court of Appeals allowed child witnesses to give testimony in sex crime cases via two-way closed circuit television, these exceptions reflected the considered policies of the respective legislatures and their attempt to balance competing concerns. The aim was to insulate child witnesses from the trauma of testifying in open court and from having to testify in the presence of the defendant while, at the same time, fully preserving the latter's constitutional rights.

The majority also noted the Second Circuit's decision in United States v. Gigante, 166 F.3d 75, 79 (2nd Cir. 1999), cert. denied, 528 U.S. 1114 (2000), allowing closed-circuit presentation of a witness' testimony on the ground he was too ill to travel to court. The appellate court observed that the trial judge had based his opinion on Federal Rules of Criminal Procedure 2 and 57(b). Likewise, the majority noted the Eleventh Circuit's decision in United States v. Yates, 438 F.3d 1307 (11th Cir. 2006), rejecting a trial court's decision permitting two Australian witnesses to testify by live, two-way video teleconference because they were unwilling to travel to the United States. The appellate panel held that, under those circumstances, the prosecutor's needs “are not the type of public policies that are important enough to outweigh the Defendants' rights to confront their accusers face-to-face.”

The defendant in Wrotten challenged the complainant's “poor health” determination. She also contended that the witness was unable to see participants in the courtroom clearly. Likewise, she complained that no New York court officer or other New York judicial official was present in the California room to supervise the proceedings and make sure that the witness was not improperly communicated with during the televised testimony. The panel majority did not decide these questions; nor did it reach the federal constitutional question. Instead, the court grappled with the question of whether trial courts in New York have “inherent authority” to admit live, two-way televised testimony of elderly or infirm witnesses.

Authority Lacking

The decisions allowing exceptions to the face-to-face requirement for witnesses (such as the child witness cases cited above) were based on critical policy judgments made by the legislative branch. Here, however, there was no statutory authority for the trial court to admit the televised testimony. Judiciary Law
' 2-b(3), which provides that a court of record “has power ' to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it,” was unavailing. That statute refers to “new process and forms of proceedings” that are “necessary.” The term “necessary” is “not so elastic as to include whatever a court considers convenient or desirable from a public policy perspective.” Wrotten at *5-*6.

The fact that limited statutory exceptions were enacted for child witness testimony in certain cases demonstrates that “inherent powers of the judiciary” is not some unlimited, expansive authorization of sweeping powers that are “legislative” in nature. “[O]ur view is that the scope of the Judiciary's inherent powers must be appraised in the context of a constitution providing that '[t]he legislative power of this state shall be vested in the senate and assembly.'”

The claimed inherent authority is also inconsistent with the comprehensive legislative scheme of securing out-of-state testimony by use of a “commission” ' a process issued by a court designating one or more persons as commissioners and authorizing them to conduct a recorded examination of a witness or witnesses under oath who are located outside New York. Yet, that scheme would be undermined if the prosecution can obtain an order from a trial court authorizing televised testimony of a prosecution witness residing outside the state. Numerous other points were raised by the majority.

The Dissent

The dissenting opinion stresses that the issue here is whether a defendant's right of confrontation is satisfied by the two-way televised testimony of a necessary prosecution witness whose health would be jeopardized by travel to appear in court. This was not a case of mere inconvenience or impracticality. Since the record supports the trial court's case-specific finding that televised testimony was necessary to further an important public policy, the dissenters would affirm the conviction.

The dissent cited several precedents where two-way televised testimony was held to satisfy the Confrontation Clause. Further, the order was “within the Supreme Court's inherent power to take steps 'to aid in the exercise of its jurisdiction' and 'in the administration of justice.'” Likewise, it was within its general statutory power under Judiciary Law ' 2-b[3]. The dissent disagreed that the authorization of “commissions” to take testimony outside New York is “inconsistent” with allowing televised testimony.

The Confrontation Clause in Civil Cases

What about the influence of the confrontation clause in civil cases? A matrimonial case in a New York trial court provides an interesting vetting of this issue. Nassau County Supreme Court Justice Anthony J. Falanga's opinion in R.M. v. Dr. R. is, unfortunately, not published in the printed volume. Because Justice Falanga's work product, available on Westlaw or as a Slip Opinion, is informative, we bring it to the reader's attention here.

The litigation involved a prior action by plaintiff wife against defendant husband, a surgeon, for divorce and financial relief. The plaintiff claimed that the parties had been married by arrangement in the early 1950s in a Hindu ceremony in India attended by some 250 guests. Children issued from this relationship. The defendant, however, had transferred assets to a different woman who, he contended, was his real wife. The defendant averred that, although he and plaintiff had been romantically involved in the 1950s, they were not married. Rather, in 1966, he married the other woman in India in a Hindu ceremony. He provided what he claimed to be a marriage certificate.

India Witnesses

In response, the plaintiff submitted 26 affidavits from persons who attended the original wedding, including an “assistant priest,” village elders and some of the defendant's relatives, along with other documents. The defendant replied that many of the affidavits were signed by illiterate villagers and that the plaintiff was not even of marriageable age in India until 1957. He also presented an affidavit by the “assistant priest” recanting his prior affidavit. After some of these contested proceedings, the defendant moved for dismissal on forum non conveniens grounds, arguing that the controversy should be tried in India. Justice Falanga denied the motion and ordered a bifurcated trial on the issue of whether the parties were married in India. This set the stage for the issue of televised testimony.

The defendant sought leave to augment live testimony by witnesses who had traveled from India to New York with video-conferenced, real-time testimony by three additional witnesses located in India who had not been able to obtain visas. The plaintiff opposed, saying the proposed video would be highly prejudicial since there had been some past intimidation and bribery attempts and, thus, it was imperative to be afforded the right to confront witnesses. Further, said the plaintiff, the defendant had adequate time to conduct depositions in India, but did not do so. Finally, plaintiff also found more than a dozen additional witnesses who would testify on her behalf by video conferencing, if so permitted by the court.

The Ruling

Justice Falanga denied the televised testimony from India. His reasoning was as follows. First, Article 1, ' 6 of the New York Constitution affords both civil and criminal litigants the right to be present in court and to confront witnesses. The purpose of the right of confrontation is to ensure the reliability of testimony. “In simplest terms,” it is “generally more difficult for a witness to lie about a party when the witness is sitting in a room face to face with the party.” 2008 WL 509092 (Sup. Ct. Nassau Co. Feb. 26, 2008), 2008 NY Slip Op 50364 (U), 18 Misc. 3d 1138 (A), (an Unreported Disposition appearing in a Reporter Table).

The right of confrontation, while fundamental, is not absolute, and may be abrogated where the right is outweighed by public policy concerns and or special circumstances (citing vulnerable child witnesses as an example).

The court noted a number of precedents where real-time teleconferencing from a remote location has been allowed in certain hearings or proceedings. All of these authorities balanced the right to confront witnesses face to face in a courtroom against various government interests. In this case, however, there were “only the private rights of civil litigants” that were at issue. Thus, the defendant was asking the court to “make new law” by permitting witnesses in India to testify by live video. The defendant's showing of need fell short. There was no demonstration that the proposed witnesses could not be produced in New York. Further, when these witnesses' visas were denied, the defendant could have taken pretrial depositions in India. A pretrial deposition, conducted on notice, “satisfies the right of face to face confrontation.” The right of confrontation is intended to facilitate the search for the truth. Absent a compelling government interest, a party has the right “not only to observe the witness, but to have the witness give his or her evidence while facing the party against whom he or she is offering testimony.”

In federal courts, Federal Rule of Civil Procedure 43(a) permits “for good cause shown in compelling circumstances and upon appropriate safeguards” the “contemporaneous transmission” of testimony to a hearing from a “different location.”

The Advisory Committee Notes to the 1996 Amendment express a decided preference for live testimony in open court. The very ceremony of trial and the presence of the factfinder may exert a powerful force for truthtelling. Further, the opportunity to judge a witness' demeanor face-to-face is given great value in our tradition. Thus, live video transmission cannot be justified merely by showing that it is inconvenient for the witness to attend the trial.

'Compelling Circumstances'

What are “compelling circumstances”? The Notes offer “unexpected reasons, such as accident or illness,” but even these should be balanced against the advantages and disadvantages of rescheduling the trial. Federal case law on alternative testimonial modes to a witness' live, in-court presence appears to boil down to fact-intensive, case-by-case analysis. See, e.g., Matovski v. Matovski, 2007 WL 1575253 (SDNY May 31, 2007) (not reported in F. Supp. 2d) (child abduction case; petition under Hague Convention; court allowed father in Australia, who could not get a visa and had limited financial resources, to testify via live video link; court denied such relief for eight supporting witnesses); Bacon v. United States, 2007 WL 778412 (NDNY March 13, 2007) (not reported in F. Supp. 2d) (federal prison inmate unable to be present at his civil trial allowed videotaped deposition of his testimony at his facility for preservation purposes plus a live audio link during the trial). In RLS Associates, LLC v. United Bank of Kuwait PLC, 2005 WL 578917 (SDNY March 11, 2005), a commercial litigation, a key witness living in the United Arab Emirates was unwilling to travel to New York, but agreed to a videoconference deposition. The court allowed the video deposition. The unreported opinion provides a helpful discussion of the difference between discovery depositions and “preservation” depositions.

Conclusion

The First Department's Dec. 30 decision in Wrotten holds that New York courts, absent specific legislative authority, lack “inherent” authority to eliminate or abridge the constitutional right of confrontation and the requirement of face-to-face testimony in court. The panel majority, however, observed that the issue of the trial court's authority to permit televised testimony “certainly merits review by the Court of Appeals.” At stake is the future of how the courtroom stage will appear and operate. Will it remain a cocoon of live theater with face-to-face testimony and traditional “confrontation” methods or will it become a convenient cinematic arena for televised combat by witnesses located far away?

Michael Hoenig, a member of this Newsletter's Board of Editors, is a member of New York's Herzfeld & Rubin.

The first part of this article described the Wrotten case ( People v. Wrotten , 2008 NY Slip Op 10226, 2008 WL 5396862 (App. Div., 1st Dep't, Dec. 30, 2008)), in which the complainant alleged that a health aide attacked and robbed him. The aide said the complainant grabbed her breasts and that she “picked something up and hit him” and ran. Because the complainant was too fragile to travel, the court granted the prosecution's request to allow him to testify by video.

The conclusion of the article herein discusses the issues raised by video testimony.

Issues Raised

While physically in California, the complainant, when giving the televised testimony, could see the courtroom, judge and defendant. The extent the witness could see courtroom participants was in dispute. Those in the courtroom could see and hear the complainant. Ultimately, the defendant was convicted of assault in the second degree, but acquitted of the more serious charges. The defendant appealed, claiming error in permitting the complainant to give televised testimony.

The appellate panel split 3-2 in favor of reversal. The majority held that the trial court lacked authority to allow the televised testimony. The dissenters concluded that, in the absence of direction from the Legislature, the trial court retained discretion, given the complainant's travel-preventing physical infirmities, to determine the steps necessary to permit the prosecution to proceed without the complaining witness being physically present in the courtroom.

The majority opened with a discussion of the constitutional right of “confrontation.” In the U.S. Constitution, the Confrontation Clause of the Sixth Amendment dually protects a criminal defendant as to: 1) the right to physically face those who testify against him; and 2) the right to conduct cross examination. The former right guarantees the defendant a “face to face meeting” with witnesses appearing before the factfinder. This is said to create an undeniably “profound effect upon a witness standing in the presence of the person the witness accuses” and, much as the right of cross examination, it ensures the “integrity of the factfinding process.” Wrotten at *2 (citing and quoting from Coy v. Iowa , 487 U.S. 1012, 1016, 1017, 1020 (1988)).

While the Confrontation Clause may not guarantee criminal defendants an “absolute” right to a face-to-face meeting with witnesses at trial, such as in the case of Maryland v. Craig , 497 U.S. 836, 844 (1990), where the U.S. Supreme Court upheld a child victim of abuse giving one-way closed circuit television testimony, or in the case of People v. Cintron , 75 N.Y.2d 249, 253-254 (1990), where the New York Court of Appeals allowed child witnesses to give testimony in sex crime cases via two-way closed circuit television, these exceptions reflected the considered policies of the respective legislatures and their attempt to balance competing concerns. The aim was to insulate child witnesses from the trauma of testifying in open court and from having to testify in the presence of the defendant while, at the same time, fully preserving the latter's constitutional rights.

The majority also noted the Second Circuit's decision in United States v. Gigante , 166 F.3d 75, 79 (2nd Cir. 1999), cert. denied, 528 U.S. 1114 (2000), allowing closed-circuit presentation of a witness' testimony on the ground he was too ill to travel to court. The appellate court observed that the trial judge had based his opinion on Federal Rules of Criminal Procedure 2 and 57(b). Likewise, the majority noted the Eleventh Circuit's decision in United States v. Yates , 438 F.3d 1307 (11th Cir. 2006), rejecting a trial court's decision permitting two Australian witnesses to testify by live, two-way video teleconference because they were unwilling to travel to the United States. The appellate panel held that, under those circumstances, the prosecutor's needs “are not the type of public policies that are important enough to outweigh the Defendants' rights to confront their accusers face-to-face.”

The defendant in Wrotten challenged the complainant's “poor health” determination. She also contended that the witness was unable to see participants in the courtroom clearly. Likewise, she complained that no New York court officer or other New York judicial official was present in the California room to supervise the proceedings and make sure that the witness was not improperly communicated with during the televised testimony. The panel majority did not decide these questions; nor did it reach the federal constitutional question. Instead, the court grappled with the question of whether trial courts in New York have “inherent authority” to admit live, two-way televised testimony of elderly or infirm witnesses.

Authority Lacking

The decisions allowing exceptions to the face-to-face requirement for witnesses (such as the child witness cases cited above) were based on critical policy judgments made by the legislative branch. Here, however, there was no statutory authority for the trial court to admit the televised testimony. Judiciary Law
' 2-b(3), which provides that a court of record “has power ' to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it,” was unavailing. That statute refers to “new process and forms of proceedings” that are “necessary.” The term “necessary” is “not so elastic as to include whatever a court considers convenient or desirable from a public policy perspective.” Wrotten at *5-*6.

The fact that limited statutory exceptions were enacted for child witness testimony in certain cases demonstrates that “inherent powers of the judiciary” is not some unlimited, expansive authorization of sweeping powers that are “legislative” in nature. “[O]ur view is that the scope of the Judiciary's inherent powers must be appraised in the context of a constitution providing that '[t]he legislative power of this state shall be vested in the senate and assembly.'”

The claimed inherent authority is also inconsistent with the comprehensive legislative scheme of securing out-of-state testimony by use of a “commission” ' a process issued by a court designating one or more persons as commissioners and authorizing them to conduct a recorded examination of a witness or witnesses under oath who are located outside New York. Yet, that scheme would be undermined if the prosecution can obtain an order from a trial court authorizing televised testimony of a prosecution witness residing outside the state. Numerous other points were raised by the majority.

The Dissent

The dissenting opinion stresses that the issue here is whether a defendant's right of confrontation is satisfied by the two-way televised testimony of a necessary prosecution witness whose health would be jeopardized by travel to appear in court. This was not a case of mere inconvenience or impracticality. Since the record supports the trial court's case-specific finding that televised testimony was necessary to further an important public policy, the dissenters would affirm the conviction.

The dissent cited several precedents where two-way televised testimony was held to satisfy the Confrontation Clause. Further, the order was “within the Supreme Court's inherent power to take steps 'to aid in the exercise of its jurisdiction' and 'in the administration of justice.'” Likewise, it was within its general statutory power under Judiciary Law ' 2-b[3]. The dissent disagreed that the authorization of “commissions” to take testimony outside New York is “inconsistent” with allowing televised testimony.

The Confrontation Clause in Civil Cases

What about the influence of the confrontation clause in civil cases? A matrimonial case in a New York trial court provides an interesting vetting of this issue. Nassau County Supreme Court Justice Anthony J. Falanga's opinion in R.M. v. Dr. R. is, unfortunately, not published in the printed volume. Because Justice Falanga's work product, available on Westlaw or as a Slip Opinion, is informative, we bring it to the reader's attention here.

The litigation involved a prior action by plaintiff wife against defendant husband, a surgeon, for divorce and financial relief. The plaintiff claimed that the parties had been married by arrangement in the early 1950s in a Hindu ceremony in India attended by some 250 guests. Children issued from this relationship. The defendant, however, had transferred assets to a different woman who, he contended, was his real wife. The defendant averred that, although he and plaintiff had been romantically involved in the 1950s, they were not married. Rather, in 1966, he married the other woman in India in a Hindu ceremony. He provided what he claimed to be a marriage certificate.

India Witnesses

In response, the plaintiff submitted 26 affidavits from persons who attended the original wedding, including an “assistant priest,” village elders and some of the defendant's relatives, along with other documents. The defendant replied that many of the affidavits were signed by illiterate villagers and that the plaintiff was not even of marriageable age in India until 1957. He also presented an affidavit by the “assistant priest” recanting his prior affidavit. After some of these contested proceedings, the defendant moved for dismissal on forum non conveniens grounds, arguing that the controversy should be tried in India. Justice Falanga denied the motion and ordered a bifurcated trial on the issue of whether the parties were married in India. This set the stage for the issue of televised testimony.

The defendant sought leave to augment live testimony by witnesses who had traveled from India to New York with video-conferenced, real-time testimony by three additional witnesses located in India who had not been able to obtain visas. The plaintiff opposed, saying the proposed video would be highly prejudicial since there had been some past intimidation and bribery attempts and, thus, it was imperative to be afforded the right to confront witnesses. Further, said the plaintiff, the defendant had adequate time to conduct depositions in India, but did not do so. Finally, plaintiff also found more than a dozen additional witnesses who would testify on her behalf by video conferencing, if so permitted by the court.

The Ruling

Justice Falanga denied the televised testimony from India. His reasoning was as follows. First, Article 1, ' 6 of the New York Constitution affords both civil and criminal litigants the right to be present in court and to confront witnesses. The purpose of the right of confrontation is to ensure the reliability of testimony. “In simplest terms,” it is “generally more difficult for a witness to lie about a party when the witness is sitting in a room face to face with the party.” 2008 WL 509092 (Sup. Ct. Nassau Co. Feb. 26, 2008), 2008 NY Slip Op 50364 (U), 18 Misc. 3d 1138 (A), (an Unreported Disposition appearing in a Reporter Table).

The right of confrontation, while fundamental, is not absolute, and may be abrogated where the right is outweighed by public policy concerns and or special circumstances (citing vulnerable child witnesses as an example).

The court noted a number of precedents where real-time teleconferencing from a remote location has been allowed in certain hearings or proceedings. All of these authorities balanced the right to confront witnesses face to face in a courtroom against various government interests. In this case, however, there were “only the private rights of civil litigants” that were at issue. Thus, the defendant was asking the court to “make new law” by permitting witnesses in India to testify by live video. The defendant's showing of need fell short. There was no demonstration that the proposed witnesses could not be produced in New York. Further, when these witnesses' visas were denied, the defendant could have taken pretrial depositions in India. A pretrial deposition, conducted on notice, “satisfies the right of face to face confrontation.” The right of confrontation is intended to facilitate the search for the truth. Absent a compelling government interest, a party has the right “not only to observe the witness, but to have the witness give his or her evidence while facing the party against whom he or she is offering testimony.”

In federal courts, Federal Rule of Civil Procedure 43(a) permits “for good cause shown in compelling circumstances and upon appropriate safeguards” the “contemporaneous transmission” of testimony to a hearing from a “different location.”

The Advisory Committee Notes to the 1996 Amendment express a decided preference for live testimony in open court. The very ceremony of trial and the presence of the factfinder may exert a powerful force for truthtelling. Further, the opportunity to judge a witness' demeanor face-to-face is given great value in our tradition. Thus, live video transmission cannot be justified merely by showing that it is inconvenient for the witness to attend the trial.

'Compelling Circumstances'

What are “compelling circumstances”? The Notes offer “unexpected reasons, such as accident or illness,” but even these should be balanced against the advantages and disadvantages of rescheduling the trial. Federal case law on alternative testimonial modes to a witness' live, in-court presence appears to boil down to fact-intensive, case-by-case analysis. See, e.g., Matovski v. Matovski, 2007 WL 1575253 (SDNY May 31, 2007) (not reported in F. Supp. 2d) (child abduction case; petition under Hague Convention; court allowed father in Australia, who could not get a visa and had limited financial resources, to testify via live video link; court denied such relief for eight supporting witnesses); Bacon v. United States, 2007 WL 778412 (NDNY March 13, 2007) (not reported in F. Supp. 2d) (federal prison inmate unable to be present at his civil trial allowed videotaped deposition of his testimony at his facility for preservation purposes plus a live audio link during the trial). In RLS Associates, LLC v. United Bank of Kuwait PLC, 2005 WL 578917 (SDNY March 11, 2005), a commercial litigation, a key witness living in the United Arab Emirates was unwilling to travel to New York, but agreed to a videoconference deposition. The court allowed the video deposition. The unreported opinion provides a helpful discussion of the difference between discovery depositions and “preservation” depositions.

Conclusion

The First Department's Dec. 30 decision in Wrotten holds that New York courts, absent specific legislative authority, lack “inherent” authority to eliminate or abridge the constitutional right of confrontation and the requirement of face-to-face testimony in court. The panel majority, however, observed that the issue of the trial court's authority to permit televised testimony “certainly merits review by the Court of Appeals.” At stake is the future of how the courtroom stage will appear and operate. Will it remain a cocoon of live theater with face-to-face testimony and traditional “confrontation” methods or will it become a convenient cinematic arena for televised combat by witnesses located far away?

Michael Hoenig, a member of this Newsletter's Board of Editors, is a member of New York's Herzfeld & Rubin.