State of Iowa v. Zachariah J. Rogerson

IN THE SUPREME COURT OF IOWA
No. 13–1329
Filed October 24, 2014
STATE OF IOWA,
Appellee,
vs.
ZACHARIAH J. ROGERSON,
Appellant.
Appeal from the Iowa District Court for Dubuque County,
Monica L. Ackley, Judge.
The defendant in a criminal case brings an interlocutory appeal
from the district court’s pretrial order allowing several of the State’s
witnesses to testify by two-way videoconference. REVERSED AND
REMANDED.
Brian D.W. Spannagel, Boffeli & Spannagel, P.C., Dubuque, for
appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant
Attorney General, and Ralph Potter, County Attorney, for appellee.
2
MANSFIELD, Justice.
This case requires us to decide when the Sixth Amendment
permits a witness to appear by live, two-way video instead of testifying in
person. In a prosecution for four counts of serious injury by operating a
motor vehicle while intoxicated, see Iowa Code § 707.6A(4) (2013), the
State moved to allow three out-of-state victims of the car accident and
three state-employed lab analysts to testify via a two-way
videoconferencing system. The defendant objected, contending the
remote testimony would violate his Sixth Amendment right to be
confronted with the witnesses against him. The district court held a
hearing on the motion and granted the State’s request for the witnesses
to testify remotely. The defendant filed an application for an
interlocutory appeal, which we granted.
Applying Sixth Amendment precedent, we now hold that two-way
videoconference testimony should not be substituted for in-person
confrontation absent a showing of necessity to further an important
public interest. Because the grounds advanced by the State do not reach
that level, we hold the district court erred in allowing the videoconference
testimony. Therefore, we reverse the district court’s order and remand
for further proceedings.
I. Background Facts and Proceedings.
According to the minutes of testimony, early in the morning on
August 13, 2012, the defendant, Zachariah Rogerson, was involved in a
single-vehicle car accident on Hales Mill Road in Dubuque County.
Dubuque County sheriff’s deputies responding to the scene encountered
four other people at the crash site, all of whom were injured. Kyle
Rohman suffered a shattered elbow, fractured ribs, and a partially
collapsed lung. Kelly Barrett’s sternum was cracked and her back
3
fractured. Jack Cole’s injuries included fractured ribs, a cracked
collarbone, and a collapsed lung. Terrie Totse was airlifted to University
of Iowa Hospitals and Clinics for treatment of her broken back and
shoulder.
Two of the injured parties identified Rogerson as the driver of the
wrecked vehicle. Sergeant Pothoff of the Dubuque County Sheriff’s Office
made contact with Rogerson at the scene of the accident and detected an
odor of an alcoholic beverage on his breath. Rogerson was transported to
Mercy Hospital Emergency Room where he was sedated and intubated.
The attending physician, Dr. Gudenkauf, signed a “Dead or
Unconscious” form indicating that Rogerson was physically unable to
give consent to a blood alcohol content test. Deputies then obtained a
blood draw showing Rogerson’s blood alcohol content to be .150.
The State charged Rogerson with four counts of unintentionally
causing serious injury by intoxicated use of a motor vehicle. See Iowa
Code § 707.6A(4). Rogerson entered a plea of not guilty to all four
counts. Before trial, the State filed a motion requesting that several of its
witnesses be permitted to testify remotely via two-way videoconferencing
technology rather than physically appearing in court. In its motion, the
State asserted that three of the parties injured in the crash, Rohman,
Barrett, and Totse, resided outside the state of Iowa and that remote
video “testimony would greatly expedite and facilitate their participation
in the Trial.” The motion also sought authorization for three employees
of the Division of Criminal Investigation (DCI) Criminalistics Laboratory
4
to testify remotely because they worked in Ankeny, and their testimony
was “not dependent upon the specific fact pattern of this case.” 1
Rogerson opposed the State’s motion, arguing that permitting the
witnesses to testify via videoconferencing technology would violate his
Sixth Amendment right to be confronted with the witnesses against him.
Rogerson explained that video testimony was not an adequate substitute
for face-to-face confrontation. He urged the trial court to deny the
State’s motion because there were no special circumstances justifying
remote testimony.
The trial court held a hearing on the motion for distance testimony.
At the hearing, the State reiterated its arguments that remote
videoconferencing would facilitate the testimony of its out-of-state
witnesses and of the state lab technicians. The State posited two-way
videoconferencing fulfilled the Sixth Amendment confrontation
requirement because both the defendant and witness could
simultaneously see and hear each other. The prosecution stated that its
witnesses had suffered “serious injury” during the accident but did not
present any evidence from doctors or the witnesses themselves that they
were unable to travel at the time set for the trial. With respect to the DCI
employees, the State emphasized the convenience of “them walking down
the hall and testifying” via videoconference rather than “giving up a day,
at least coming up from the State lab in [Ankeny]” to testify.
In opposition to the motion, Rogerson argued that the State had
failed to show that it was necessary, rather than merely convenient, for
its witnesses to testify remotely. Rogerson again stated his concern that
1Ankeny is approximately 200 miles driving distance from Dubuque, where trial
would be held.
5
permitting videoconference testimony would violate his Sixth Amendment
confrontation right. He urged the court to adopt a standard requiring
the State to prove the necessity of distance testimony before allowing
witnesses to testify via two-way video.
The trial court granted the State’s motion for distance testimony.
The court explained,
The statements to be offered by the Division of Criminal
Investigation through [its employees] are non-testimonial
and are factual. Therefore, the use of the ICN2 network for
the presentation of their testimony is deemed not to violate
the confrontation[] clause.
The primary purpose of the confrontation clause is to
secure the opponent the opportunity of cross-examination.
The secondary purpose of the confrontation clause is to
enable the judge and the jury to obtain the elusive and
incommunicable evidence of a witness’s deportment while
testifying. To allow the witnesses who are residing outside of
the State of Iowa with the opportunity to appear on the ICN
network provides the Defendant with an opportunity for
cross-examination. The personal presence of these
individuals over the network, which transmits their image
simultaneously, allows the judge and the jurors the
opportunity to observe the witness during testimony. Any
non-verbal communication may be therefore viewed during
this live testimony. It is therefore deemed that the use of the
ICN network to permit the injured named victims the
opportunity to remain in a place of comfort during their
recuperation period to provide testimony in this trial does
not violate the Defendant’s rights under the confrontation
clause.
(Citations omitted.)
Rogerson applied to this court for permission to bring an
interlocutory appeal, again asserting that the trial court’s decision to
permit the State’s witnesses to testify remotely violated his constitutional
2The Iowa Communications Network (ICN) is a statewide, governmental network
that includes a two-way videoconferencing system. See generally Iowa Communications
Network, http://www.icn.iowa.gov/ (last visited October 13, 2014).
6
right to be confronted by the witnesses against him. He contended that
the district court had applied the wrong standard for determining
whether two-way video testimony in a criminal trial is permissible. He
further urged that the State failed to meet its burden under the correct
standard.
We granted Rogerson’s application to proceed with an interlocutory
appeal and retained the case.
II. Standard of Review.
We review constitutional claims, including those based on the
Confrontation Clause, de novo. State v. Schaer, 757 N.W.2d 630, 633
(Iowa 2008).
III. Analysis.
A. Constitutionality of Two-Way Video Testimony Under the
Confrontation Clause. The Sixth Amendment to the United States
Constitution guarantees that, “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against
him.” U.S. Const. amend. VI. 3 Courts have long construed the
Confrontation Clause to “guarantee[] the defendant a face-to-face
meeting with witnesses appearing before the trier of fact.” Coy v. Iowa,
487 U.S. 1012, 1016, 108 S. Ct. 2798, 2801, 101 L. Ed. 2d 857, 864
(1988). In Coy, the United States Supreme Court referenced both history
and precedent, emphasizing the fundamental role that face-to-face
confrontation has always played in judicial proceedings:
3Inhis appellate brief, Rogerson also maintains that article 1, section 10 of the
Iowa Constitution requires reversal of the trial court’s decision. Because we agree with
Rogerson’s argument under the United States Constitution, we do not need to reach his
contentions under the Iowa Constitution or determine whether they have been
preserved.
7
The Sixth Amendment’s guarantee of face-to-face
encounter between witness and accused serves ends related
both to appearances and to reality. This opinion is
embellished with references to and quotations from antiquity
in part to convey that there is something deep in human
nature that regards face-to-face confrontation between
accused and accuser as “essential to a fair trial in a criminal
prosecution.” What was true of old is no less true in modern
times.
Id. at 1017, 108 S. Ct. at 2801, 101 L. Ed. 2d at 864–65 (quoting Pointer
v. Texas, 380 U.S. 400, 404, 85 S. Ct. 1065, 1068, 13 L. Ed. 2d 923, 926
(1965)).
In subsequent cases, however, the Supreme Court has clarified
that while the Confrontation Clause does express a strong preference for
face-to-face confrontation, the latter is not an absolute constitutional
requirement. See Maryland v. Craig, 497 U.S. 836, 849–50, 110 S. Ct.
3157, 3165–66, 111 L. Ed. 2d 666, 680–82 (1990). This preference for
face-to-face confrontation “ ‘must occasionally give way to considerations
of public policy and the necessities of the case.’ ” Id. at 849, 110 S. Ct.
at 3165, 111 L. Ed. 2d at 681 (quoting Mattox v. United States, 156 U.S.
237, 243, 15 S. Ct. 337, 339–40, 39 L. Ed. 409, 411 (1895)).
In Craig, the trial court permitted a child victim of sexual abuse to
testify via a one-way, closed-circuit television system under which the
defendant could see and hear the testimony, but the child could neither
see nor hear the defendant. See id. at 840–42, 110 S. Ct. at 3160–61,
111 L. Ed. 2d at 675–76. The Court set forth a two-prong test to
determine when face-to-face confrontation with a child victim of alleged
sexual abuse may be excused and one-way, closed-circuit television
testimony used in its place. In such cases, the State must prove: (1) that
the “denial of [face-to-face] confrontation is necessary to further an
important public policy,” and (2) that “the reliability of the testimony is
otherwise assured.” Id. at 850, 110 S. Ct. at 3166, 111 L. Ed. 2d at 682.
8
Under this test, the Craig Court determined that protecting child
abuse victims from the psychological harm of testifying was a sufficiently
important public policy concern to justify denying face-to-face
confrontation. Id. at 853, 110 S. Ct. at 3167, 111 L. Ed. 2d at 683.
Then, applying the second prong, the Court held that Maryland’s closed-
circuit video system assured the reliability of remote testimony because
the witness testified under oath; the defendant was still able to fully
cross-examine the witness; and the judge, jury, and defendant could see
the witness’s demeanor and body language as he or she testified. Id. at
857, 110 S. Ct. at 3170, 111 L. Ed. 2d at 686. The Court emphasized
that, although it had approved remote testimony in the Craig scenario,
substituting video for live testimony in other cases would require a fact-
specific finding of necessity. Id. at 855, 110 S. Ct. at 3169, 111 L. Ed. 2d
at 685.
Since deciding Craig twenty-four years ago, the Supreme Court has
not further examined the constitutionality of remote video testimony.
Justice Scalia has twice dissented from the Court’s denials of certiorari
in cases involving the remote testimony of child abuse witnesses because
he believed the lower courts had inappropriately expanded the exception
to face-to-face confrontation. Marx v. Texas, 528 U.S. 1034, 1034–35,
120 S. Ct. 574, 575, 145 L. Ed. 2d 436, 437 (1999) (mem.) (Scalia, J.,
dissenting from denial of certiorari) (criticizing the expansion of the
exception to face-to-face confrontation where the trial court allowed a
witness who had been abused by the defendant in a prior incident to
testify remotely upon a finding that there might be emotional trauma);
Danner v. Kentucky, 525 U.S. 1010, 1011, 119 S. Ct. 529, 530, 142 L.
Ed. 2d 439, 440 (1998) (mem.) (Scalia, J., dissenting from denial of
certiorari) (disagreeing that a fifteen-year-old witness who expressed only
9
some apprehension at testifying in front of her alleged abuser should be
permitted to testify through video).
The Court also has not had occasion to consider the
constitutionality of new types of video technology available to facilitate
remote testimony. Craig involved a one-way video system in which the
witness could not see or hear the defendant, but the defendant, judge,
and jury could see and hear the witness. 497 U.S. at 840–42, 110 S. Ct.
at 3160–61, 111 L. Ed. 2d at 675–76. In contrast, two-way video
systems—like the one at issue in this case—allow both the defendant and
the witness to see and hear one another simultaneously during the
testimony.
Thus, the Supreme Court has not decided what test should govern
two-way video testimony. See Wrotten v. New York, 560 U.S. 959, 960,
130 S. Ct. 2520, 2520–21, 177 L. Ed. 2d 316, 316 (2010) (Sotomayor, J.,
respecting denial of certiorari) (noting some differences between one- and
two-way video and stating that the Court has not yet decided the
appropriate standard to govern two-way testimony). The Court did reject
a proposed change to Federal Rule of Criminal Procedure 26, however,
that would have permitted unavailable witnesses to testify via two-way
video. Order of the Supreme Court, 207 F.R.D. 89, 91 (2002). In an
accompanying statement, Justice Scalia wrote, “I share the majority’s
view that the Judicial Conference’s proposed Fed. Rule Crim. Proc. 26(b)
is of dubious validity under the Confrontation Clause of the Sixth
Amendment to the United States Constitution . . . .” Id. at 93 (statement
of Scalia, J.). He added,
As we made clear in Craig, a purpose of the Confrontation
Clause is ordinarily to compel accusers to make their
accusations in the defendant’s presence—which is not
equivalent to making them in a room that contains a
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television set beaming electrons that portray the defendant’s
image. Virtual confrontation might be sufficient to protect
virtual constitutional rights; I doubt whether it is sufficient
to protect real ones.
Id. at 94 (citation omitted). Justice Scalia expressed skepticism that two-
way video technology was constitutionally distinct from the one-way
system examined in Craig: “I cannot comprehend how one-way
transmission (which Craig says does not ordinarily satisfy confrontation
requirements) becomes transformed into full-fledged confrontation when
reciprocal transmission is added.” Id. Justice Breyer, joined by Justice
O’Connor, dissented from the Court’s refusal to submit the proposed rule
to Congress. Id. at 96 (dissenting statement of Breyer, J.).
Thus, we need to determine here if the standard set forth in Craig
applies to two-way videoconferencing technology. If we do apply the
Craig test, we must assess whether an adequate finding of necessity
exists in this case to warrant denying face-to-face confrontation.
Rogerson argues that remote testimony of any kind is less satisfactory
than face-to-face confrontation and therefore urges that the Craig
standard should govern both one- and two-way video testimony. The
State maintains that two-way videoconferencing is distinct from one-way,
closed-circuit television and asks that we find two-way video to be an
adequate substitute for live testimony and therefore not violative of the
Confrontation Clause.
Until now, Iowa courts have seemingly used the Craig test only in
the scenario for which it was designed, i.e., in determining when to
permit child victims of abuse to testify via one-way video systems. For
example, in State v. Rupe, we employed the Craig standard and permitted
a minor sexual abuse victim to testify via closed circuit television
because the State presented evidence that the child would suffer
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emotional trauma if he were required to testify in the defendant’s
presence. 534 N.W.2d 442, 443–44 (Iowa 1995). Our opinion did not
mention whether the video system was one- or two-way, and we have not
addressed the potential constitutional distinctions between one-way and
two-way video testimony. See id.Other courts, however, have addressed the constitutional
significance of one- versus two-way video systems under the Sixth
Amendment. The vast majority of those courts have chosen to apply
Craig to both one- and two-way videoconferencing; only the United States
Court of Appeals for the Second Circuit has formulated a standard
distinct from Craig’s necessity test to govern the constitutionality of two-
way video testimony. For example, the Eighth Circuit applied Craig in
determining the constitutionality of two-way video testimony of child
abuse victims in United States v. Bordeaux, 400 F.3d 548, 554 (8th Cir.
2005). The court reasoned that although two-way videoconferencing
might better approximate face-to-face confrontation than one-way video,
it was nevertheless virtual and less desirable than in-person testimony.
Id. The court stated “ ‘confrontation’ via a two-way closed circuit
television is not constitutionally equivalent to a face-to-face
confrontation.” Id. The Bordeaux court attributed the problem in part to
the prevalence of entertainment technology: “Given the ubiquity of
television, even children are keenly aware that a television image of a
person (including a defendant in the case of a two-way system) is not the
person [and] something is lost in the translation.” Id. As the Eighth
Circuit put it,
The virtual “confrontations” offered by closed-circuit
television systems fall short of the face-to-face standard
because they do not provide the same truth-inducing effect.
The Constitution favors face-to-face confrontations to reduce
12
the likelihood that a witness will lie. “It is always more
difficult to tell a lie about a person ‘to his face’ than ‘behind
his back.’ ” . . . [T]he touchstone for deciding whether a
“confrontation” satisfies the Constitution is whether it is
likely to lead a witness to tell the truth to the same degree
that a face-to-face confrontation does, and in this respect
two-way systems are like one-way systems: they both fall
short.
Id. (quoting Coy, 487 U.S. at 1019, 108 S. Ct. at 2802, 101 L. Ed. 2d at
866). Because of its concerns about virtual confrontation of any kind,
the Eighth Circuit chose to apply the Craig standard to two-way as well
as one-way video systems. Id. at 554–55.
The Eleventh Circuit also followed Craig to invalidate the use of
two-way video testimony for witnesses who resided in Australia and
refused to travel to the United States for trial. United States v. Yates,
438 F.3d 1307, 1315–16 (11th Cir. 2006). Like the Eighth Circuit, it
expressed concern that virtual confrontation, even through a two-way
system, fell short of the Confrontation Clause’s promise:
The simple truth is that confrontation through a video
monitor is not the same as physical face-to-face
confrontation. . . . [T]he two are not constitutionally
equivalent. The Sixth Amendment’s guarantee of the right to
confront one’s accuser is most certainly compromised when
the confrontation occurs through an electronic medium.
Id. at 1315 (citation omitted). In applying the first prong of the Craig
test, the court held that the government’s stated interests of
“expeditiously and justly resolving the case” and “providing the fact-
finder with crucial evidence” were not necessary to further an important
public interest. Id. at 1315–16. The court thus ruled that the use of
two-way video testimony violated the defendant’s confrontation right and
ordered a new trial. Id. at 1319.
Several state appellate courts have also utilized Craig as the
standard for assessing the constitutionality of two-way video testimony.
13
In a recent case, the New Mexico Court of Appeals held that allowing a
state-employed scientific analyst to testify by two-way video about the
defendant’s blood alcohol content violated the Confrontation Clause
because the trial court had not determined that such remote testimony
was necessary to further an important public interest. State v. Smith,
308 P.3d 135, 136 (N.M. Ct. App. 2013). The Smith court agreed with the
Eighth Circuit that the “[v]irtual presence created by television falls short
of physical presence in satisfying the elements of confrontation.” Id. at
137. Similarly, the Superior Court of Pennsylvania has applied Craig to
hold that allowing an imprisoned witness to testify via two-way
videoconferencing technology without a finding of necessity violates the
Confrontation Clause. Commonwealth v. Atkinson, 987 A.2d 743, 751–
52 (Pa. Super. Ct. 2009). The court noted the opinions of the Eighth and
Eleventh Circuits that two-way video testimony should be subjected to
the same high standard as one-way testimony. Id. at 750 (citing Yates,
438 F.3d at 1313–14).
The Florida Supreme Court likewise declined to allow two-way
video testimony in lieu of face-to-face confrontation without a showing of
necessity. Harrell v. State, 709 So. 2d 1364, 1368–69 (Fla. 1998). Much
as the State urges us to do in the present case, the State of Florida asked
the court to permit two-way video testimony in lieu of live testimony
whenever the prosecution desired, calling it “the equivalent of physical,
face-to-face confrontation.” Id. at 1368. Declining to adopt such a
blanket rule, the court instead employed Craig’s two-part test. Id. at
1369. It stated,
We are unwilling to develop a per se rule that would allow
the vital fabric of physical presence in the trial process to be
replaced at any time by an image on a screen. . . . [W]e do
not conclude that virtual presence is the equivalent of
14
physical presence for the purposes of the Confrontation
Clause.
Id. at 1368–69. The Harrell court ultimately found adequate state
interests justifying two-way video testimony because the Argentine
witnesses were beyond the court’s subpoena power, they were essential
to the case, and one of the witnesses was too ill to make the trip to the
United States. Id. at 1369–70.
The Michigan Court of Appeals similarly adopted Craig as the test
to determine when two-way video testimony infringes a defendant’s
confrontation right. People v. Buie, 775 N.W.2d 817, 825 (Mich. Ct. App.
2009). Citing the Eighth Circuit’s reasoning in Bordeaux, the court
noted “ ‘the intangible but crucial differences between a face-to-face
confrontation and a ‘confrontation’ that is electronically created by
cameras, cables, and monitors.’ ” Id. (quoting Bordeaux, 400 F.3d at554–55). It concluded that the state had not given a justification for why
its expert witnesses needed to testify remotely and remanded the case for
the trial court to make a necessity determination in line with Craig. Id.
at 826.
In addition to the foregoing courts that have expressly considered
the differences between one- and two-way video systems and determined
that the Craig standard should govern both, a number of other courts
have applied Craig to both types of systems without separate analysis.
See, e.g., United States v. Weekley, 130 F.3d 747, 753–54 (6th Cir. 1997)
(applying Craig’s necessity standard to a two-way video system without
discussion of the one-way/two-way distinction); United States v. Garcia,
7 F.3d 885, 887–88 (9th Cir. 1993) (same); United States v. Farley, 992
F.2d 1122, 1124–25 (10th Cir. 1993) (same); State v. Stock, 256 P.3d
899, 905 (Mont. 2011) (same); People v. Beltran, 970 N.Y.S.2d 289, 296
15
(App. Div. 2013) (same); State v. Seelig, 738 S.E.2d 427, 434 (N.C. Ct.
App. 2013) (same); Gonzales v. State, 818 S.W.2d 756, 764 (Tex. Crim.
App. 1991) (same); Johnson v. Commonwealth, 580 S.E.2d 486, 491 (Va.
Ct. App. 2003) (same); Bush v. State, 193 P.3d 203, 215–16 (Wyo. 2008)
(same). A federal trial court in Washington was asked to assess the
constitutionality of allowing a foreign witness in a drug smuggling case to
testify by two-way videoconference. United States v. Rosenau, 870 F.
Supp. 2d 1109, 1112 (W.D. Wash. 2012). The court applied Craig
without specifically discussing whether it should govern two-way as
opposed to one-way video testimony. Id. at 1112–13. The court noted
that the two-way nature of the video system was an added assurance of
adequate confrontation, but nevertheless required the state to
demonstrate video testimony was necessary to further an important
public interest in accordance with the Craig test. Id. at 1113.
In contrast to the numerous courts that have applied the Craig test
to two-way as well as one-way videoconferencing technology, the Second
Circuit alone has declined to require a finding of Craig-based necessity
before allowing witnesses to testify via two-way video. United States v.
Gigante, 166 F.3d 75, 81 (2d. Cir. 1999). 4 In Gigante, the Second Circuit
upheld the trial court’s decision to allow an ill witness to testify remotely
via two-way videoconference. Id. Rather than assessing the need for
remote technology under Craig, the Second Circuit formulated a test
based upon the federal standard for when depositions may be used to
4A Minnesota case appeared to read Craig and Gigante as consistent with one
another. State v. Sewell, 595 N.W.2d 207, 212 (Minn. Ct. App. 1999). The court stated
that to allow a witness to testify via video technology, a court must first determine the
witness cannot appear in person and show the necessity of his testimony, id. (citing
Craig, 497 U.S. at 850, 110 S. Ct. at 3166, 111 L. Ed. 2d at 681–82), and then assess
the reliability of the testimony using the factors set forth in Gigante, 166 F.3d at 80, id.at 212–13.
16
perpetuate testimony for trial purposes. Id. (citing Fed. R. Crim. P.
15(a)). 5 The court reasoned that two-way closed circuit television
“afforded greater protection of Gigante’s confrontation rights than would
have been provided by a Rule 15 deposition,” since the witness actually
had to testify live before the jury (although not in their actual presence).
Id. Therefore, the Second Circuit held that “[u]pon a finding of
exceptional circumstances, . . . a trial court may allow a witness to testify
via two-way closed-circuit television when this furthers the interest of
justice.” Id. The court determined that witness’s terminal illness and his
status in the witness protection program satisfied the “exceptional
circumstances” requirement and therefore upheld the trial court’s use of
two-way video testimony. Id. at 81–82.
The Gigante court listed what it saw as the four primary benefits of
face-to-face confrontation: “1) the giving of testimony under oath; 2) the
5Federal Rule of Criminal Procedure 15(a)(1) provides in part:
A party may move that a prospective witness be deposed in order to
preserve testimony for trial. The court may grant the motion because of
exceptional circumstances and in the interest of justice.
We have a similar rule in Iowa:
Whenever the interests of justice and the special circumstances of a case
make necessary the taking of the testimony of a prospective witness not
included in rule 2.13(1) or 2.13(3), for use at trial, the court may upon
motion of a party and notice to the other parties order that the testimony
of the witness be taken by deposition . . . . For purposes of this
subsection, special circumstances shall be deemed to exist and the court
shall order that depositions be taken only upon a showing of necessity
arising from either of the following:
....
(2) Other just cause necessitating the taking of the deposition.
Iowa R. Crim. P. 2.13(2)(a); see generally State v. Rainsong, 807 N.W.2d 283 (Iowa 2011)
(discussing this provision).
It should be noted, of course, that when such a deposition is taken, the
defendant normally is present. See Fed. R. Crim. P. 15(c); State v. Turner, 345 N.W.2d
552, 559 (Iowa Ct. App. 1983).
17
opportunity for cross-examination; 3) the ability of the fact-finder to
observe demeanor evidence; and 4) the reduced risk that a witness will
wrongfully implicate an innocent defendant when testifying in his
presence.” Id. at 80. The court found these four components satisfied by
the two-way system because the witness was sworn, he was subject to
cross-examination, he testified in full video-view of the jury and judge,
and he testified with the defendant watching. Id.
Upon our review, we agree with the vast majority of courts that
have considered the issue and determined that Craig’s test should apply
to two-way as well as one-way video testimony. Concededly, two-way
videoconferencing technology available today more closely approximates
face-to-face confrontation than one-way video. But despite its
preferability over one-way transmission, we do not believe two-way
videoconferencing is constitutionally equivalent to the face-to-face
confrontation envisioned by the Sixth Amendment. In Craig, the Court
stated that it is
[t]he combined effect of these elements of confrontation—
physical presence, oath, cross-examination, and observation
of demeanor by the trier of fact—[that] serves the purposes of
the Confrontation Clause by ensuring that evidence admitted
against an accused is reliable and subject to the rigorous
adversarial testing that is the norm of Anglo-American
criminal proceedings.
497 U.S. at 846, 110 S. Ct. at 3163, 111 L. Ed. 2d at 678–79 (emphasis
added). Only the combination of all of these elements of confrontation—
including face-to-face testimony—fully protects a defendant’s Sixth
Amendment rights.
Our founders presumably believed that accusers would be more
reluctant to make false accusations when they were in the personal
presence of the accused. “A witness ‘may feel quite differently when he
18
has to repeat his story looking at the man whom he will harm greatly by
distorting or mistaking the facts.’ ” Coy, 487 U.S. at 1019, 108 S. Ct. at
2802, 101 L. Ed. 2d at 866 (quoting Zechariah Chafee, Jr., The Blessings
of Liberty 35 (1956)). Technology has changed since the late eighteenth
century, but human nature has not. This social pressure to tell the
truth can be diminished when the witness is far away rather than
physically present with the defendant in the courtroom. The Supreme
Court has expressed a strong preference for in-person encounters
between witnesses and defendants that no form of virtual testimony can
fully satisfy. Two-way video technology may permit the witness and
defendant to see one another, but the screen and the physical distance
between the two tend to reduce the truth-inducing effect of the
confrontation. The Supreme Court has recognized “that face-to-face
confrontation enhances the accuracy of factfinding by reducing the risk
that a witness will wrongfully implicate an innocent person.” Craig, 497
U.S. at 846, 110 S. Ct. at 3164, 111 L. Ed. 2d at 679. Remote testimony
of any kind should not be lightly substituted in its place.
In addition to having the right to be confronted by witnesses
against him, the criminal defendant is also entitled to be present for all
critical phases of the proceedings. United States v. Gagnon, 470 U.S.
522, 526, 105 S. Ct. 1482, 1484, 84 L. Ed. 2d 486, 490 (1985); see also
Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 1058, 25 L. Ed. 2d
353, 356 (1970) (“One of the most basic of the rights guaranteed by the
Confrontation Clause is the accused’s right to be present in the
courtroom . . . .”). The Supreme Court has explained that the right to be
present is grounded in both the Confrontation Clause and the Due
Process Clause:
19
[W]e have recognized that [the right to presence] is protected
by the Due Process Clause in some situations where the
defendant is not actually confronting witnesses or evidence
against him. . . . [A] defendant has a due process right to be
present at a proceeding “whenever his presence has a
relation, reasonably substantial, to the fulness of his
opportunity to defend against the charge. . . . [T]he presence
of a defendant is a condition of due process to the extent
that a fair and just hearing would be thwarted by his
absence . . . .”
Gagnon, 470 U.S. at 526, 105 S. Ct. at 1484, 84 L. Ed. 2d at 490.
(quoting Snyder v. Massachusetts, 291 U.S. 97, 105–06, 107–08, 54 S.
Ct. 330, 332, 333, 78 L. Ed. 674, 678, 679 (1934)).
Like the confrontation right, the related right to be present ensures
the integrity of criminal proceedings because the defendant’s presence
impresses the gravity of the proceedings upon the participants. See
Crosby v. United States, 506 U.S. 255, 259, 113 S. Ct. 748, 751, 122 L.
Ed. 2d 25, 31 (1993) (“This [common law right to be present] was
premised on the notion that a fair trial could take place only if the jurors
met the defendant face-to-face and only if those testifying against the
defendant did so in his presence.”). Yet this right to be present loses
some meaning if witnesses are permitted to appear on a video monitor.
We therefore find that in-person testimony should be excused only in the
rare situations recognized in Craig.
Hence, before permitting a witness to testify via two-way
videoconference, the court must make a case-specific determination that
the denial of the defendant’s confrontation right is necessary to further
an important public interest. If the court finds such an interest, it must
assure the reliability of the remote testimony. See Craig, 497 U.S. at
851, 110 S. Ct. at 3166, 111 L. Ed. 2d at 682.
Here, the State not only would have us depart from Craig, it wants
to go beyond Gigante. It contends that two-way video is constitutionally
20
equivalent to live, in-person confrontation and asks us to declare the two
interchangeable. No court to our knowledge has gone so far as to adopt
a rule permitting two-way videoconferencing testimony simply upon the
government’s request. Even the Gigante court, which rejected the
application of Craig to two-way video testimony, still required a finding of
“exceptional circumstances” before excusing face-to-face confrontation.
Gigante, 166 F.3d at 81. While permitting two-way video testimony
under the facts of that case, the court cautioned that “the use of remote,
closed-circuit television testimony must be carefully circumscribed.” Id.
at 80.
The State’s proposal also presents logistical problems. Although a
witness can be placed under oath when testifying remotely, the State
does not explain how a court in one state could hold a recalcitrant
witness in contempt when he or she is located hundreds of miles away in
another jurisdiction. See, e.g., United States v. Sanford, Ltd., 860 F.
Supp. 2d 1, 10 (D.D.C. 2012) (“[F]oreign depositions are suspect and,
consequently, not favored, due, in significant part, to the fact that the
witness is not subject to the imposition of sanctions of perjury or
contempt for testifying falsely or evasively.” (Internal quotation marks
and citations omitted.)). Impeachment of a witness with documents or
prior statements also becomes more cumbersome and less attention-
grabbing when performed through a video connection. Furthermore,
technological limitations could prevent the jury from adequately
observing the witness’s demeanor.
We are aware that technology evolves and improves all the time.
Some day virtual electronic presence in the courtroom may become an
adequate constitutional substitute for actual physical presence. But we
are not there yet. Because face-to-face confrontation is constitutionally
21
preferable to remote testimony of any kind, we believe Craig applies to
two-way video testimony, which should be acceptable only upon a
showing of necessity to further an important public interest and only
when the testimony’s reliability can be otherwise assured.
B. Applying the Craig Standard Here. Guided by Craig, we turn
now to whether the justifications shown by the record in this case qualify
as sufficiently important to allow the State to present remote video
testimony. This is the necessity prong of the Craig test, and we believe it
is sufficient to resolve the present dispute. As recognized in Craig,
protecting child victims from the trauma of testifying in front of their
alleged abusers can justify remote testimony in certain cases. Craig, 497
U.S. at 853, 110 S. Ct. at 3167, 111 L. Ed. 2d at 683; see also Rupe, 534
N.W.2d at 444.
Illness has been another justification that courts have found
sufficient to satisfy the Craig “necessity” prong. For example, in Bush,
the witness in question lived out of the state and had suffered congestive
heart failure, rendering him unable to appear personally at trial. 193
P.3d at 214. The court concluded that permitting the seriously ill
witness’s “testimony via video conference was necessary to further the
important public policy of preventing further harm to his already serious
medical condition.” Id. at 215–16. Additionally, the North Carolina
Court of Appeals approved remote testimony of a witness who suffered
such a severe panic attack before the trial that he was consequently
unable to travel. Seelig, 738 S.E.2d at 435. Similarly, the witness in
United States v. Benson was “elderly and infirm” and the Sixth Circuit
allowed her to testify via videoconferencing technology. 79 F. App’x 813,
820–21 (6th Cir. 2003).
22
Courts vary on whether the fact that a witness resides in a foreign
country beyond the state’s subpoena power is an adequate justification
for remote testimony. Most seem to require some impediment to
testifying beyond mere unwillingness to travel. In Yates, the witnesses
lived in Australia and refused to come to the United States to testify. See
438 F.3d at 1310. The Eleventh Circuit did not find the state’s interests
in “expeditiously and justly resolving the case” and “providing the fact-
finder with crucial evidence” enough to meet Craig’s necessity
requirement. Id. at 1315–16. In contrast, the Harrell court did find
adequate justification for remote testimony when the foreign witnesses
were beyond the court’s subpoena power and one was also ill. See 709
So. 2d at 1369–70. Similarly, in Rosenau, a Canadian court order had
prevented the witness from entering the United States, and the federal
district court approved of his testimony via videoconference. See 870 F.
Supp. 2d at 1113.
There is also a general consensus among courts that mere
convenience, efficiency, and cost-saving are not sufficiently important
public necessities to justify depriving a defendant of face-to-face
confrontation. In Smith, the trial court had permitted a state-employed
lab analyst to testify via two-way video about the defendant’s blood
alcohol content at the time of his arrest. 308 P.3d at 136. The New
Mexico Court of Appeals reversed, stating “that the witness’s convenience
or the convenience of his employer are not situations that demonstrate
necessity” sufficient to overcome the Confrontation Clause’s preference
for face-to-face testimony. Id. at 138. Similarly, the Pennsylvania
Superior Court held that an incarcerated witness could not be permitted
to testify via two-way video merely because the state would have to
arrange and pay for prisoner transport. Atkinson, 987 A.2d at 751. That
23
court stated that although video testimony might be logistically easier,
“convenience and cost-saving are not sufficient reasons to deny
constitutional rights.” Id.In this case, the State represented at the hearing on its motion
that the witnesses who were involved in the car crash resided a
significant distance from Iowa and had suffered serious injuries. 6 The
State did not present evidence that the witnesses were beyond the court’s
subpoena power or that they were unable to travel because of their
injuries. Under Craig and the other precedents discussed above, this is
insufficient. The State has not shown that the witnesses cannot appear
in person or even that personal appearance would cause severe stress.
Concerning the DCI lab employees, the State did not even argue
that they resided out of state or had suffered injuries. Rather, the State’s
justification below was that their testimony was not “accusatory.” On
appeal, the State no longer advances that argument. 7 In effect, it simply
maintains it would save time and money if these witnesses did not have
to attend trial in person. The present situation is analogous to Smith,
where the New Mexico Court of Appeals held a state lab analyst could not
testify via two-way video simply because it was more convenient. In
sum, the State’s justifications of mere distance, cost, and efficiency are
insufficient to overcome Rogerson’s Sixth Amendment rights, and there is
6According to the State, one lived in New Orleans, Louisiana, one lived in Key
West, Florida, and a third previously resided in West Virginia. They were visiting Iowa
when the accident occurred.
7The United States Supreme Court has dispensed with the notion that some
witnesses for the prosecution are exempt from the Confrontation Clause. See Melendez-
Diaz v. Massachusetts, 557 U.S. 305, 313–14, 129 S. Ct. 2527, 2533–34, 174 L. Ed. 2d
314, 323 (2009) (“Contrary to respondent’s assertion, there is not a third category of
witnesses, helpful to the prosecution, but somehow immune from confrontation.”). The
DCI employees in the present case are witnesses for the prosecution and are, therefore,
subject to the Confrontation Clause.
24
no evidence the witnesses are unable to travel. We therefore agree with
Rogerson that the district court’s order allowing the witnesses to testify
by two-way teleconferencing should be reversed.
IV. Conclusion.
For the foregoing reasons, we hold the standard set forth in
Maryland v. Craig governs the constitutionality under the Sixth
Amendment of two-way videoconferencing as a substitute for in-person
testimony. We further hold the State failed to meet the necessity prong
of that standard. Accordingly, we reverse the district court’s order
granting the State’s motion for distance testimony and remand the case
for further proceedings.
REVERSED AND REMANDED.
All justices concur except Hecht, J., who concurs specially.
25
#13–1329, State v. Rogerson
HECHT, Justice (concurring specially).
This appeal presents two essential questions. First, did the State
show exceptional circumstances supporting the district court’s ruling
that four of the State’s witnesses could testify without being physically
present in the courtroom (the “necessity question”)? Second, if
exceptional circumstances have been shown, did the State establish the
technology it proposed to use would adequately protect Rogerson’s right
of confrontation (the “reliability question”)? Although my colleagues
suggest they decide only the necessity question in this case, their opinion
expresses views about reliability with which I am not prepared to concur.
I agree the State made no attempt to show necessity, and I agree the
district court’s order should be reversed for that reason. I write
separately, however, because I do not share my colleagues’ conclusion
that current two-way video technology is inadequate and cannot
accomplish the constitutional objectives of confrontation.
The text of the Sixth Amendment does not expressly require
confrontation be achieved with testimony by witnesses who are
physically present in the courtroom. U.S. Const. amend. VI. The
drafters of the Sixth Amendment likely did not contemplate the
possibilities presented by present-day technology; they were concerned
principally with convictions by affidavit. Mattox v. United States, 156
U.S. 237, 242, 15 S. Ct. 337, 339, 39 L. Ed. 409, 411 (1895) (“The
primary object of the [Confrontation Clause] was to prevent depositions
or ex parte affidavits . . . being used against the prisoner in lieu of
personal examination and cross-examination of the witness . . . .”). The
notion witnesses should be physically present in the courtroom springs
at least in part from courts’ linguistic analysis of the word “confront.”
26
Maryland v. Craig, 497 U.S. 836, 845, 110 S. Ct. 3157, 3163, 111 L. Ed.
2d 666, 678 (1990) (“The word ‘confront,’ after all, also means a clashing
of forces or ideas, thus carrying with it the notion of adversariness.”);
Coy v. Iowa, 487 U.S. 1012, 1016, 108 S. Ct. 2798, 2800, 101 L. Ed. 2d
857, 864 (1988) (“[T]he word ‘confront’ ultimately derives from the [Latin]
prefix ‘con-’ (from ‘contra’ meaning ‘against’ or ‘opposed’) and the noun
‘frons’ (forehead).”); California v. Green, 399 U.S. 149, 175, 90 S. Ct.
1930, 1944, 26 L. Ed. 2d 489, 506 (1970) (Harlan, J., concurring)
(“Simply as a matter of English the clause may be read to confer . . . a
right to meet face to face all those who appear and give evidence at
trial.”).
Going beyond linguistics, the Supreme Court has concluded a
defendant’s Sixth Amendment right of confrontation does not establish
an absolute requirement the accuser be physically present in the
courtroom when testimony is presented in a criminal case. Craig, 497
U.S. at 853, 110 S. Ct. at 3167, 111 L. Ed. 2d at 683. The goal of
confrontation—assuring “the reliability of evidence”—can be achieved
without an accuser’s physical presence in the courtroom if four
conditions are met: (1) the accuser must testify under oath, (2) the
defendant must have the opportunity to cross-examine the accuser,
(3) the jury must be able to observe the demeanor of the accuser while
testimony is given, and (4) the accuser must testify in the presence of the
accused. Id. at 845–46, 110 S. Ct. at 3163, 111 L. Ed. 2d at 678. Craig
established that a youthful accuser’s presence can be accomplished
under exceptional circumstances consistent with the Confrontation
Clause through the use of closed-circuit technology permitting the
defendant and fact finder(s) to observe the accuser during her testimony,
but not permitting the accuser to see the defendant. Id. at 857, 110
27
S. Ct. at 3170, 111 L. Ed. 2d at 686. As my colleagues recognize, two-
way video technology allows the witness and the defendant to see one
another. Accordingly, the form of transmission the State proposed to use
in this case is “very different from th[e closed-circuit system] used in . . .
Craig.” See Order of the Supreme Court, 207 F.R.D. 89, 101 (2002)
(advisory committee’s note to proposed Fed. R. Crim. P. 26(b), reprinted
as an appendix to the statement of Breyer, J.).
Whether a defendant’s right of confrontation is adequately
protected when witnesses testify via two-way video technology turns
largely, in my view, on fact determinations. I believe that in this case,
the question whether the sufficiency of the technology could have been
shown should be left completely open. The answer to this question in a
future case should be informed in part by the latest social science
addressing the extent, if any, to which the actual physical presence of a
witness in a courtroom produces a sufficiently enhanced opportunity for
confrontation when compared to presence achieved through two-way
video technology. Indeed, the answer to this fact question is essential, in
my view, to a determination of whether the difference between actual and
virtual presence supports the continued maintenance of a strict
constitutional distinction.
I, of course, concede my colleagues’ observation that virtual
presence is not “the same” as physical presence. However, I believe
social science should inform our answer to the question whether existing
state-of-the-art technology can achieve the goal of confrontation through
an accuser’s virtual presence. If technology has evolved to the point
where real-time video testimony neither significantly diminishes the fact
finders’ ability to assess credibility nor lessens accusers’ motivation to
tell the truth, courts should not cling to old forms for consistency’s sake.
28
I acknowledge some scholars have suggested we simply do not know the
answers to these questions. See Richard D. Friedman, Remote
Testimony, 35 U. Mich. J.L. Reform 695, 702–03 (2002) (“I do not know of
any extant studies that can give substantial comfort on [the effect of
remote testimony].”); Nancy Gertner, Videoconferencing: Learning Through
Screens, 12 Wm. & Mary Bill Rts. J. 769, 787 (2004) [hereinafter Gertner]
(calling “for more studies of [videoconferencing’s] significance in enabling
jurors to evaluate testimony”); Fredric I. Lederer, The Road to the Virtual
Courtroom? A Consideration of Today’s—and Tomorrow’s—High-
Technology Courtrooms, 50 S.C. L. Rev. 799, 820 (1999) [hereinafter
Lederer] (“[W]e lack any experimental evidence that might indicate
whether remote witnesses are more or less likely to tell the truth than in-
court witnesses.”); Marc Chase McAllister, Two-Way Video Trial
Testimony and the Confrontation Clause: Fashioning a Better Craig Test in
Light of Crawford, 34 Fla. St. U. L. Rev. 835, 875 (2007) [hereinafter
McAllister] (“[T]he precise effects of virtual confrontation are still
unknown.”). Yet, years have passed since those scholars weighed in.
The advance of technology continues. More recent social science
scholarship bearing on the subject could inform a future decision on
these important questions.
My colleagues posit that the “social pressure to tell the truth can
be diminished when the witness is far away rather than physically
present with the defendant in the courtroom,” and assert “the screen and
the physical distance between the [witness and the defendant] tend to
reduce the truth-inducing effect of the confrontation.” These intuitive
assumptions bearing on the assessment of reliability may be true, but
maybe not. Jeremy A. Blumenthal, A Wipe of the Hands, a Lick of the
Lips: The Validity of Demeanor Evidence in Assessing Witness Credibility,
29
72 Neb. L. Rev. 1157, 1173–74 (1993) (asserting the profound effect of
confrontation and the difficulty of lying to someone’s face are “accepted,
but unfounded” premises). More importantly, however, the majority’s
statement of these assumptions suggests—at least implicitly—that my
colleagues are addressing more than the necessity question in this case.
I do not presume my colleagues’ assumptions are true or false. I
would prefer instead to determine such matters based upon a record
revealing the fullness of witnesses’, defendants’, and fact finders’
perceptions permitted by two-way technology utilized or proposed for use
in a particular case. Assumptions supporting the requirement of
witnesses’ physical presence in the courtroom—and eschewing evidence
presented via two-way video technology—should be tested against expert
opinions from the social sciences on the question whether the purposes
of confrontation are in fact significantly advanced by physical presence. 8
Courts have persisted in viewing witnesses’ physical presence as a
core feature of confrontation, but they have offered little more than
intuition in support. See, e.g., Craig, 497 U.S. at 846, 110 S. Ct. at
3164, 111 L. Ed. 2d at 679 (“[F]ace-to-face confrontation . . . reduc[es]
the risk that a witness will wrongfully implicate an innocent person.”);
Coy, 487 U.S. at 1019, 108 S. Ct. at 2802, 101 L. Ed. 2d at 866 (“It is
always more difficult to tell a lie about a person ‘to his face’ than ‘behind
his back.’ ”); United States v. Bordeaux, 400 F.3d 548, 554 (8th Cir.
2005) (relying on “intangible elements” in concluding both that two-way
confrontation “is not constitutionally equivalent to a face-to-face
8Some studies suggest that, “as a general rule, people are poor human lie
detectors”—perhaps no matter the medium. Gertner, 12 Wm. & Mary Bill Rts. J. at 785
n.93 (collecting studies); see also Lederer, 50 S.C. L. Rev. at 820 (“Four experiments
have indicated that jurors perceive remote witnesses just as they perceive in-court
witnesses, neither better nor worse.”).
30
confrontation” and that two-way systems “fall short”). I would prefer to
have evidence bearing upon several questions before deciding whether
virtual presence can satisfy—beyond the limited circumstances present
in Craig—the essential purposes of the confrontation right. Does
available technology permit the witness and the defendant a sufficient
view of each other to achieve the purposes of face-to-face confrontation?
Does available technology allow fact finders a sufficient opportunity to
hear and see the witness in assessing credibility? 9 Do witnesses sworn
to tell the truth really tend to feel a greater motivation for honesty when
they are physically present in the courtroom with the defendant than
when they are able to see and experience the defendant’s presence on a
monitor as they testify via two-way video technology? To what extent do
the “trappings” or symbols of the courtroom tend to emphasize the
solemnity of judicial proceedings and increase the likelihood that
witnesses will tell the truth when they testify in person? If—as we
sometimes assume—there is a correlation between the factors
emphasizing the solemnity of the proceedings and witnesses’ motivation
toward honesty, should we really believe those factors cannot be
effectively communicated to witnesses through currently available two-
way video technology?
The State provided no evidence in this case illuminating the court’s
answers to these questions. Accordingly, I associate myself—for now—
with my colleagues’ conclusion that “[r]emote testimony of any kind
9Some have posited that a monitor “necessarily limits the jurors’ ability to see
the witness’s body.” Gertner, 12 Wm. & Mary Bill Rts. J. at 786. While this ability is
an important aspect of determining credibility because body language may be less
controllable than facial expressions and therefore deemed an indicator of possible
deception, see id., I leave room for the possibility the court could consider camera
angles and capacity in deciding the adequacy of confrontation permitted by two-way
video technology.
31
should not be lightly substituted” in place of live testimony by witnesses
physically present in the courtroom. However, I would not assume or
decide without more evidence that effective confrontation cannot be
provided in criminal cases through currently available two-way video
technology. 10
Courts must maintain their relevance over time by utilizing
emerging technologies consistent with constitutional purposes, rather
than steadfastly adhering to the way it used to be. See Harrell v. State,
709 So. 2d 1364, 1372 (Fla. 1998) (“[C]ourtrooms . . . cannot sit idly by,
in a cocoon of yesteryear, while society and technology race [forward].”).
Although courts have interpreted the Confrontation Clause as requiring
in-person testimony except in exceptional circumstances, this
interpretation was developed long before technology allowed excellent
two-way video transmission. Similarly, although my colleagues allow for
the possibility that virtual presence will someday be sufficient for
purposes of the Confrontation Clause, they conclude “we are not there
yet.” Lacking sufficient information, I am not prepared to join in that
conclusion today.
I agree the State did not prove necessity, so the district court’s
order must be reversed. However, I would allow for the possibility that,
with current technology and reasonable precautions employed by
counsel and carefully enforced by courts, virtual presence might permit
constitutionally sufficient confrontation.
10Ibelieve the proposed (but rejected) Federal Rule of Criminal Procedure 26(b)
had attractive features. See Order of the Supreme Court, 207 F.R.D. at 99–104. It
would have required a showing of necessity as a condition of presenting testimony
through two-way video. See id. at 99 (allowing video testimony only if “the requesting
party establishes exceptional circumstances”). Upon a showing of necessity, the court
would assess the adequacy of the proposed technology and impose any procedural
precautions it deems appropriate. Id. (requiring “appropriate safeguards”); see also
McAllister, 34 Fla. St. U. L. Rev. at 870–71 (proposing a test for permitting two-way
video testimony that includes safeguards and technical requirements).