The Coronavirus pandemic has without question impacted the way we personally interact with one another. Social distancing is the new norm. Greetings by way of handshakes or hugs is a thing of the past. Wearing a mask out in public is now socially acceptable. Our institutions have also been affected as many of our campuses and churches still remain closed. As a result of this crisis, even our nation’s halls of justice are devoid of people. Trials in many states have been cancelled or continued until further notice.

As there is no way of knowing how long this pandemic will be with us, some jurisdictions are seeking to implement non-traditional means of providing justice. Instead of appearing in courtrooms, litigants will be now be appearing on video conference screens. The question then becomes in this new normal, can trials be constitutionally conducted over remote video conferencing platforms where the participants will not be face-to-face? Will an accused’s sixth amendment constitutional rights be violated if the accuser’s testimony is presented via video conference instead of in person?

Sixth Amendment (U.S. Constitution)

In order to properly examine these questions, we first look to the language of the Sixth Amendment and its history. The Sixth Amendment Confrontation Clause states, “In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him...”¹ The Sixth Amendment guarantees a number of rights which are designed to make criminal prosecutions more accurate, fair, and legitimate. The Confrontation Clause was intended to prevent a conviction upon evidence without providing the defendant an opportunity to face his or her accusers and delve into their honesty and truthfulness.

History of the Confrontation Clause

There is no legislative history on the Sixth Amendment’s Confrontation Clause² as it was, in fact, included and passed by Congress without a floor debate. However, in order to discern the true meaning of the clause, the United States Supreme Court has looked to history, specifically English jurisprudence.³In the 1600’s, a defendant’s demand that the witnesses be brought to face them in court was rarely, if ever, granted. Indeed, it was commonplace for the English courts at that time to allow out-of-court statements to be used as evidence at trial.
A classic example of this scenario was the treason trial of Sir Walter Raleigh.⁴

“It was to Winchester, in 1603, just after that city had been desolated by the Plague, that Walter Raleigh was brought down from the Tower of London… to be arraigned for high treason. Throughout the trial he defended himself with a brave spirit, rather showing love of life than fear of death, and with noble eloquence, in replying to the insults of Coke, the king’s Attorney, and a splendid dignity which no insult could for a moment ruttle.”⁵

At the trial, one of the most damaging pieces of evidence against Raleigh consisted of a sworn “confession” by Lord Cobham, Raleigh’s alleged co-conspirator in the plot to kill the king. Raleigh protested the introduction of this evidence: “But it is strange to see how you press me still with my Lord Cobham, and yet will not produce him…let Cobham be here, let him speak it. Call my accuser before my face.” Cobham was never brought forth and the jury convicted Raleigh.⁶ Some legal scholars⁷ mark the denial of Raleigh’s request as the point in history from which the English common law right to confront witnesses gained recognition.⁸

Our Present-Day Right to Confront Adverse Witnesses

In reference to the confrontation clause, the United States Supreme Court has held that this overarching right of confrontation encompasses two underlying protections: (1) the right to a face-to-face confrontation of adverse witnesses⁹ and (2) the right to cross-examine adverse witnesses.¹⁰ In Coy v. Iowa,¹¹the Court described “the irreducible literal meaning of the Clause” as “the right to meet face to face all those who appear and give evidence at trial.”¹² Just two years later in Maryland v. Craig,¹³ the Court declared that “although face-to-face confrontation forms the core of the values furthered by the Confrontation Clause,…it is not the sine qua non of the confrontation right.”¹⁴ They noted, “We have never held…the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial.”¹⁵ The central concern of the Clause is “to ensure the reliability of the evidence against a criminal defendant.”¹⁶

The Confrontation Clause of the Illinois Constitution

This concern observed by the Court in Craig extends to state matters through the fourteenth amendment.¹⁷ Indeed, our Illinois confrontation clause was amended on November 8, 1994, to remove the “face-to-face” language it previously contained and to conform this state’s confrontation clause to that of the Sixth Amendment of the United States Constitution. Our state constitution now provides, “In criminal prosecutions, the accused shall have the right…to be confronted with the witnesses against him or her...”¹⁸

Providing Access to Justice through Video Conferencing

As we have seen, the landscape of the American criminal justice system has changed considerably throughout the centuries, which has required our courts to examine how old rights apply to new procedures.

With the history and jurisprudence of the Sixth Amendment in mind, the discussion will now turn to the implications the present-day pandemic continues to have on the confrontation clause. With the understanding of the importance of ensuring stability in our judicial system, on May 26, 2020, effective immediately, the Illinois Supreme Court announced the repeal of Illinois Supreme Court Rule 185 and the creation of new Rule 45, as well as amendments to Rule 46 and Rule 241. These rules all relate to the use of remote hearings via telephone or video conferencing in the courts and the official recording of these court proceedings.

Testimony through video conferencing provides the intangible benefit of placing the witness effectively in the same room, albeit on the same screen, as the defendant. It also provides the opportunity to place the witness under oath. This setting provides judges and lawyers an opportunity to simultaneously observe and listen to the testimony of a live witness thereby judging the witness’ demeanor and credibility during a real-time transmission. It also allows the witness to not only see the defendant, but to see the judge and the lawyers as well. Documents and other exhibits can also be viewed by the parties while video conferencing on the same screen.

Video Conferencing Held Constitutional

In United States v. Gigante,¹⁹the second circuit held that the Confrontation Clause was not violated where the trial court allowed an unavailable ill witness enrolled in the Witness Protection Program to testify via a two-way video conference stream. The Second Circuit affirmance was based on the fact that the video conference procedure implemented by the trial court preserved all the constitutional factors of in-court testimony. The witness in Gigante was placed under oath and subjected to cross-examination. The testimony was also presented in full view of the jury, court and defense counsel. Lastly, and more importantly his testimony was relayed right in front of the defendant. In fact, while the Court still applied many of the reliability factors used in Craig, the Court did not find it necessary to apply the full Craig test because the video conference technology provided “face-to-face” confrontation. Unlike in Sir Raleigh’s trial, here the co-conspirator was brought before the accused. It should be noted while the Gigante court chose not to follow the Craig test per se the prudent path might be to follow the precedent set by Craig.

Video Conferencing Found Not Constitutional

The Sixth Circuit has had the opportunity to consider the impact of the confrontation clause within the environment of video conferencing. In Wilkins v. Timmerman-Cooper,²⁰the Sixth Circuit found that the defendant stated sufficient facts to survive a motion to dismiss his constitutional claim when he alleged that during his video conference parole revocation hearing the “video camera was positioned in such a way as to prevent him and his counsel from making eye contact with the witnesses, and the hearing officer from observing the demeanor of the witnesses.” Thus, with the Wilkins case in mind, counsel may want to confirm that the webcam on the computer being utilized during the proceeding is level to avoid any awkward angles so that everyone can be seen on the screen.

Conclusion

In the days and months ahead, keep in mind the words of Chief Justice John Marshall as he observed in McCulloch v. Maryland, our Constitution aspires “to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”²¹ In these difficult times that we live-in let’s be guided by these words to insure that the right of confrontation continue as a just and fair means of exploring honesty and truthfulness.

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Currently serving as a judge on the Illinois Appellate Court, First District, Fourth Division.

1. See U.S. Const. amend. VI.