June 25, 2020
The Sixth Amendment guarantees criminal defendants the right to confront their accusers at trial. A long line of cases has established that, with some very, very narrow exceptions, this right requires that the witness be physically in the courtroom when he or she is testifying.
So, can an expert witness testify via Skype at a criminal trial? In a decision issued earlier this week, a unanimous Michigan Supreme Court said no.
The appeal involved the trial of Arthur Jemison, who was convicted of first-degree sexual conduct. One of the State’s witnesses was a DNA analyst who, over the defendant’s objection, testified via a two-way video link-up. Jemison appealed to the state’s Court of Appeals, which upheld his conviction, but the Supreme Court was not as accommodating to the State.
Holding that the opportunity for direct, face-to-face confrontation is an essential aspect of the confrontation right, the court reversed the conviction. It didn’t matter to the court that the witness was an expert, nor that it would have been expensive to bring him to Michigan to testify; in fact, the court noted that a perverse incentive would be created if trial courts allowed the state to select an out-of-state expert, and then argue that the cost of bringing the expert to the courthouse justified the Sixth Amendment violation.
Though oral argument in the case was held before the coronavirus pandemic, it would not seem that even COVID-19 can trump the right to confrontation. If that right is to mean anything, it means that the defendant and the witness must physically be in the same room, even if socially distanced.