The Confrontation Clause of the Sixth Amendment ensures that a criminal defendant has the right “to be confronted with the witnesses against him.”1×1. U.S. Const. amend. VI. The Clause was traditionally understood to “guarantee the defendant a face-to-face meeting with witnesses” during trial.2×2. Coy v. Iowa, 487 U.S. 1012, 1016 (1988). Maryland v. Craig3×3. 497 U.S. 836 (1990). clarified that the right to physical confrontation was not absolute and laid out circumstances when it could be relaxed.4×4. Id. at 844, 850. As videoconferencing technology improves, and its use in courtrooms promises greater efficiency, cost savings, and information available to the factfinder,5×5. See Nancy Gertner, Videoconferencing: Learning Through Screens, 12 Wm. & Mary Bill Rts. J. 769, 773, 786 (2004). courts have considered whether allowing a prosecution witness to testify by two-way video satisfies the Confrontation Clause. Recently, in State v. Thomas,6×6. 376 P.3d 184 (N.M. 2016). the New Mexico Supreme Court held that the two-way video testimony of a forensic analyst violated the defendant’s Sixth Amendment right to confrontation.7×7. See id. at 187. The court’s discussion of the Confrontation Clause illustrates how current U.S. Supreme Court precedent leaves courts struggling to apply established tests to two-way video testimony.
Truett Thomas was charged with kidnapping and murdering Guadalupe Ashford.8×8. Id. at 187–88. Drag marks led to the location of her body at the edge of a parking lot with a bloodied paver stone nearby, blood sprinkling the area.9×9. Id. at 188. She died from a series of blows and lacerations to her head.10×10. Id. DNA samples collected from her body and the paver stone matched Ashford’s and Thomas’s DNA; the latter’s genetic material had been archived in the FBI’s Combined DNA Index System database.11×11. Id. The database compiles DNA profiles collected by law enforcement agencies across the country. Id. Thomas denied that he had ever met Ashford, and no one saw him near the parking lot.12×12. Id. The DNA evidence alone provided the basis for Thomas’s arrest and indictment.13×13. See id.
The trial began approximately twenty-six months after Thomas’s arrest.14×14. Id. Thomas moved to dismiss the charges for violation of his right to a speedy trial after twenty-two months of pretrial custody. Id. The district court denied the motion. Id. The forensic analyst who had worked on the DNA samples had moved out of state by that time.15×15. Id. Two weeks before trial, the prosecutor informed the court that the analyst might not be able to appear in person for trial and requested that she be permitted to testify by Skype, a “two-way audio-video communications application,” and defense counsel consented so long as there were no “technical issues.”16×16. Id. One week later, defense counsel raised the possibility that the two-way video testimony could violate the Confrontation Clause.17×17. Id. The district court ruled that the defendant “had waived any objection” to the use of two-way video by his prior consent, and the analyst appeared by two-way video at trial.18×18. Id. at 189. The video feed of the analyst was displayed to the jury, and the analyst saw only “the attorney questioning her.”19×19. Id. Thomas was found guilty of both charges and sentenced consecutively to life imprisonment for the murder and eighteen years for the kidnapping.20×20. Id. He moved for a new trial based on newly available DNA evidence and raised the issue of the trial judge’s conduct on social media during and after trial.21×21. Id. In particular, before sentencing the judge posted on a Facebook page connected with his election campaign: “In the trial I presided over, the jury returned guilty verdicts for first-degree murder and kidnapping just after lunch. Justice was served. Thank you for your prayers.” Id. The district court denied his motion, and Thomas appealed directly to the New Mexico Supreme Court.22×22. Id.
The New Mexico Supreme Court reversed and remanded to the lower court to enter a judgment of acquittal on the kidnapping charge and to retry the murder charge.23×23. Id. at 199. Writing for the court, Chief Justice Daniels24×24. Chief Justice Daniels was joined by Justices Maes, Chávez, and Vigil. Justice Nakamura did not participate. first held that the defendant’s right to a speedy trial was not violated by the twenty-six months of pretrial custody.25×25. Thomas, 376 P.3d at 189–91 (applying Barker v. Wingo, 407 U.S. 514, 530 (1972)); see also U.S. Const. amend. VI; N.M. Const. art. II, § 14. While the twenty-six month delay was long enough to prompt a speedy trial inquiry,26×26. Thomas, 376 P.3d at 190. Thomas had not shown that the length and causes of the delay weighed heavily in his favor and had not presented sufficient evidence that the delay caused him particularized prejudice or anxiety worse than that of other defendants jailed before their trials.27×27. See id. at 191.
The court then turned to whether the use of the two-way video testimony violated Thomas’s right to confrontation.28×28. Id. (citing U.S. Const. amend. VI; N.M. Const. art. II, § 14). The court considered whether Thomas’s right had been violated under the United States Constitution; only if the U.S. Constitution did not provide relief would the court consider Thomas’s claim under the New Mexico Constitution. Id. As a preliminary matter, the court concluded that Thomas had not waived his right to confrontation29×29. Id. at 191–92. A valid waiver of a constitutional right must be voluntary, knowing, intelligent, and made with awareness of the potential consequences. Id. at 191. The record did not show that the district court had discussed with the defendant his confrontation rights. Id. at 191–92. There was no evidence that the defendant waived his rights knowingly and voluntarily, and so no valid waiver occurred. Id. at 192. and that his objection had been preserved for appellate review.30×30. Id. at 192–93. The court then held that the use of two-way video in this case violated Thomas’s confrontation right,31×31. Id. at 193–95. ostensibly adopting the U.S. Supreme Court’s test in Maryland v. Craig.32×32. Id. at 194. Craig observed that the Confrontation Clause “ensure[s] the reliability of the evidence against a criminal defendant”33×33. Maryland v. Craig, 497 U.S. 836, 845 (1990). through “[t]he combined effect of [the four] elements of confrontation — physical presence, oath, cross-examination, and observation of demeanor by the trier of fact.”34×34. Id. at 846. Under Craig, the right to physical confrontation can be denied only where necessary for public policy and where the testimony’s reliability is “otherwise assured.”35×35. Id. at 850. In Craig, a child abuse victim was questioned by the prosecutor and defense counsel out of the courtroom as one-way closed circuit television played video of the testimony in court for the defendant, judge, and jury.36×36. Id. at 840–42. The Court held that the defendant’s confrontation rights did not guarantee an absolute right to face-to-face confrontation at trial since the presence of three of the four confrontation elements in the one-way video procedure adequately assured reliability37×37. Id. at 851. and since the trial court must find the procedure necessary to protect the child victim from trauma.38×38. Id. at 855.
In evaluating the applicability of Craig, Chief Justice Daniels considered the influence of Crawford v. Washington,39×39. 541 U.S. 36 (2004). a later Supreme Court decision.40×40. Thomas, 376 P.3d at 193. Crawford held that the Confrontation Clause prohibits out-of-court testimonial statements unless the witness is unavailable and the defendant has had an opportunity to cross-examine her.41×41. Crawford, 541 U.S. at 68. The Thomas court observed that while Crawford potentially “call[ed] into question” Craig’s focus on reliability, it nonetheless “reaffirmed” that the Confrontation Clause aims to ensure reliability through cross-examination.42×42. Thomas, 376 P.3d at 193. Since, the Thomas court concluded, the “face-to-face aspect of confrontation was not at issue in Crawford, and Crawford did not overrule Craig,”43×43. Id. Craig controlled here.44×44. Id. at 193–94. Chief Justice Daniels did not categorically rule out the use of video and noted that the U.S. Supreme Court had not articulated a standard for two-way video testimony. See id. at 194. The court held that a defendant “may not be denied a physical, face-to-face confrontation”45×45. Id. at 194–95. without a finding that the denial furthers an important public policy and without the “presence of other confrontation element . . . including administration of the oath, the opportunity for cross-examination, and the allowance for observation of witness demeanor by the trier of fact.”46×46. Id. at 195.
Applying this test, Chief Justice Daniels noted that the district court had not made any findings that allowing the analyst to testify by two-way video was required to advance an important public policy.47×47. Id. Thus, the video testimony violated the defendant’s right to confrontation.48×48. Id. The court noted that, in the alternative, the testimony was not admissible under Crawford because the state had not complied with the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, N.M. Stat. Ann. §§ 31-8-1 to -6 (2016), and so did not show that the witness was unavailable. Thomas, 376 P.3d at 192, 195. Concluding that the error was not harmless,49×49. Thomas, 376 P.3d at 195–96. A constitutional error is harmless only if “there is no reasonable possibility that the error affected the verdict,” and a conviction must be reversed if the improperly admitted evidence might have contributed to the conviction. Id. at 195. Only DNA evidence implicated Thomas, and the analyst who testified over two-way video was the only scientist to perform measurements on the DNA. Id. at 196. the court ordered a new trial on the murder charge, finding that there was sufficient evidence to support the conviction and thus no double jeopardy concern.50×50. Id. However, the court refused to allow Thomas to be retried on the kidnapping charge.51×51. Id. at 198. The state had not put forth sufficient evidence showing that the kidnapping — moving the victim approximately ten feet — was “separate from”52×52. Id. at 197. the murder “already in progress.”53×53. Id. at 198. The court was concerned that “allow[ing] a kidnapping conviction to be based upon this incidental conduct can give rise to serious injustice by increasing punishment so as to render it disproportionate to culpability.” Id. at 197. Since Thomas’s convictions had been reversed on other grounds, the court did not rule on whether the trial judge’s conduct on social media showed a lack of impartiality.54×54. Id. at 198. Chief Justice Daniels emphasized a judge’s responsibility to maintain propriety in online settings, as in other public places.55×55. Id. at 198–99.
Relying on Craig, the Thomas court justifiably held that the two-way video testimony violated the Confrontation Clause. However, Crawford questioned the constitutionality of two-way video testimony by suggesting that confrontation must be face-to-face and by looking unfavorably on judicial discretion over a constitutional right. The Thomas court demonstrates courts’ trouble with two-way video testimony because it is one of few courts to consider Crawford and Craig together and because it ultimately fashioned a new test based on Craig. Considering the treatment of two-way video by the Supreme Court and scholars, there are arguments for and against applying Craig. Thomas exemplifies the uncertain constitutionality of two-way video testimony in the criminal context. The shortcomings of its analysis could lead to increased judicial discretion over a defendant’s confrontation right.
In 2002, the U.S. Supreme Court rejected an amendment to Rule 26(b) of the Federal Rules of Criminal Procedure that would have provided a procedure for unavailable witnesses to testify by two-way video.56×56. Id. at 194. Justice Scalia wrote in support of this rejection.57×57. See id. The Court subsequently decided Crawford, with Justice Scalia writing for the majority, expressing a preference for face-to-face confrontation.58×58. See Crawford v. Washington, 541 U.S. 36, 44 (2004) (citing seventeenth-century English treason statutes highlighting the importance of physical, face-to-face confrontation in criminal proceedings). In this open space, most, but not all, courts have applied Craig.59×59. See State v. Rogerson, 855 N.W.2d 495, 501–04 (Iowa 2014) (summarizing cases). Yet, as Professor Marc McAllister has argued, Craig and Crawford created an ambiguity in the law with respect to the constitutionality of two-way video testimony, an area “in need of clearer guidelines.”60×60. 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, 835 (2007). As commentators have discussed, Crawford complicates and even undermines Craig by calling into question its holding that physical presence is not indispensable to the confrontation right.61×61. See G. Michael Fenner, Today’s Confrontation Clause (After Crawford and Melendez-Diaz), 43 Creighton L. Rev. 35, 84 n.222 (2009); David M. Wagner, The End of the “Virtually Constitutional”? The Confrontation Right and Crawford v. Washington as a Prelude to Reversal of Maryland v. Craig, 19 Regent U. L. Rev. 469, 475 (2007). Others have noted that by functioning as a public policy exception, the Craig test permits significant judicial discretion, which may be problematic in light of Crawford’s categorical demand.62×62. See Marc C. McAllister, The Disguised Witness and Crawford’s Uneasy Tension with Craig: Bringing Uniformity to the Supreme Court’s Confrontation Jurisprudence, 58 Drake L. Rev. 481, 510 (2010) (arguing that Craig permits the type of “open-ended exceptions from the confrontation requirement,” id. (quoting Crawford, 541 U.S. at 54), that Crawford found “constitutionally suspect,” id.). The Crawford Court forsook Ohio v. Roberts’s63×63. 448 U.S. 56 (1980). standard of substantive reliability in part because determining reliability was “unpredictable” and left too much discretion to judges.64×64. Crawford, 541 U.S. at 63 (criticizing the various indicia of reliability used by courts).
Two-way video testimony both differs from and is analogous to one-way video testimony. On the one hand, two-way video testimony is factually distinct from Craig’s one-way video procedure. Witnesses called by two-way video may otherwise be unavailable and unable to testify;65×65. See United States v. Yates, 438 F.3d 1307, 1331 (11th Cir. 2006) (Marcus, J., dissenting) (“[W]hen a witness is truly unavailable, the requirement of face-to-face confrontation does not apply in the first place . . . .”). the witness’s availability was not at issue in Craig.66×66. While the child witness in Craig was physically accessible, the judge found that she would have suffered extreme emotional distress and could not testify in the defendant’s presence. See Maryland v. Craig, 497 U.S. 836, 842 (1990). Further, the use of two-way video can be intended “to allow a confrontation;”67×67. Yates, 438 F.3d at 1332 (Marcus, J., dissenting); cf. United States v. Gigante, 166 F.3d 75, 81 (2d Cir. 1999) (declining to apply Craig to two-way video testimony that permitted the defendant and the witness to see one another face-to-face). Craig’s procedure aimed to prevent confrontation and the trauma it may cause to the victim.68×68. See Craig, 497 U.S. at 853. In addition, two-way video can further dilute the “adversarial impact” of cross-examination69×69. Anthony Garofano, Comment, Avoiding Virtual Justice: Video-Teleconference Testimony in Federal Criminal Trials, 56 Cath. U. L. Rev. 683, 701 (2007) (noting a decrease in adversarial impact when “the witness is separated from the cross-examining lawyer by distance and technology”). because, unlike in Craig, a witness appearing by two-way video is not in the same place as the attorneys.70×70. Compare United States v. Abu Ali, 528 F.3d 210, 239 (4th Cir. 2008), and Thomas, 376 P.3d at 189, with Craig, 497 U.S. at 841. On the other hand, as Thomas observed, Craig seemingly addresses two-way video testimony under the Confrontation Clause more directly than Crawford. Craig allowed video testimony in the courtroom.71×71. See Craig, 497 U.S. at 841. The defense cross-examined the witnesses in both Craig and Thomas concurrently with their testimony; in Crawford, however, there was no cross-examination.72×72. Compare id., and Thomas, 376 P.3d at 195, with Crawford v. Washington, 541 U.S. 36, 38 (2004). Crawford may apply “only to testimonial statements made prior to trial” while Craig itself involved live video trial testimony.73×73. United States v. Yates, 438 F.3d 1307, 1314 n.4 (11th Cir. 2006). Compare Craig, 497 U.S at 851, and Thomas, 376 P.3d at 189, with Crawford, 541 U.S. at 38. As such, Crawford does not speak specifically to physical confrontation.74×74. See Crawford, 541 U.S. at 68. One interpretation follows that Crawford governs the type of statements introduced, and Craig the manner in which they are presented.75×75. See McAllister, supra note 62, at 512–13. Thus, Craig more easily maps onto two-way video.
The New Mexico Supreme Court’s opinion in Thomas exemplifies courts’ struggle to determine the scope of the right the Confrontation Clause affords defendants. The Thomas court did not ignore precedent; it engaged with Crawford and Craig thoroughly.76×76. See Thomas, 376 P.3d at 193–95. In fact, many courts have not discussed Crawford to this degree when ruling on two-way video testimony.77×77. See, e.g., United States v. Abu Ali, 528 F.3d 210, 239 (4th Cir. 2008) (no discussion); Horn v. Quarterman, 508 F.3d 306, 319 (5th Cir. 2007) (noting that Crawford does not apply retroactively); Yates, 438 F.3d at 1314 n.4 (disposing of Crawford in a footnote); State v. Rogerson, 855 N.W.2d 495, 499 (Iowa 2014) (no discussion). But see State v. Jackson, 717 S.E.2d 35, 39–40 (N.C. Ct. App. 2011) (discussing Crawford and Craig). Thomas may illustrate why. It reported Crawford in a confused manner and then skirted the question of its import. According to Thomas, Crawford “abandoned” and “reaffirmed” reliability as the primary aim of the Confrontation Clause,78×78. Thomas, 376 P.3d at 193. but Thomas did not consider that reliability may be defined differently in different contexts.79×79. See McAllister, supra note 62, at 513 (distinguishing reliability for out-of-court statements, defined by judicial determination before Crawford, id., from reliability for in-court statements, defined procedurally in Craig, id. at 514). The court in Thomas acknowledged that Crawford outlined a procedural guarantee — cross-examination — and dismissed “particular substitutes for confrontation.”80×80. Thomas, 376 P.3d at 193. Yet Thomas overlooked the procedural nature of the “confrontation elements” and left open the question whether those are substitutes for confrontation.81×81. Id. at 195. The court then concluded that Crawford did not influence Craig’s holding, disregarding the weight of Crawford’s dicta.82×82. See id. at 193–95; cf. Wagner, supra note 61, at 474 (arguing that “to dismiss [certain explanatory phrases in Crawford] as dicta will be to sail against the wind of the opinion”). Thomas’s muddled treatment of Crawford illustrates that more clarity is needed regarding two-way video testimony from Congress or the U.S. Supreme Court.
The Thomas court articulated a unique test for physical confrontation. Unlike other courts,83×83. See, e.g., United States v. Abu Ali, 528 F.3d 210, 240 (4th Cir. 2008); Horn v. Quarterman, 508 F.3d 306, 317 (5th Cir. 2007); United States v. Yates, 438 F.3d 1307, 1314 (11th Cir. 2006); State v. Rogerson, 855 N.W.2d 495, 505 (Iowa 2014). Thomas did not restate Craig’s test, though it purported to do so.84×84. Thomas, 376 P.3d at 194 (“We adopt the Craig standard . . . .”). Instead, it modified the second prong — assurance of the testimony’s reliability — to include three of the four confrontation elements: oath, cross-examination, and observation of witness demeanor.85×85. Id. at 195 (omitting physical presence). This change might be felt in other areas that implicate physical confrontation concerns, such as witness disguises.86×86. See McAllister, supra note 62, at 499–500, 504. Additionally, two-way video testimony will generally satisfy Thomas’s second prong, as the three elements will typically be met remotely.87×87. See Thomas, 376 P.3d at 189. Consequently, the admissibility of the testimony will hinge on the judge’s determination of public policy, a standard potentially as vague as the “reliability” standard Crawford criticized.88×88. See McAllister, supra note 60, at 868. In Craig, the Court identified the important state interest in relevant statutes. See Maryland v. Craig, 497 U.S. 836, 853–54 (1990). Outside of the child abuse context, however, public policy is not always found in legislation, and the standard can be quite vague. See, e.g., Abu Ali, 528 F.3d at 240–41 (government’s interest in combating terrorism sufficient); United States v. Rosenau, 870 F. Supp. 2d 1109, 1113 (W.D. Wash. 2012) (government’s interest in efficient disposition of international drug smuggling cases sufficient); Harrell v. State, 709 So. 2d 1364, 1369–70 (Fla. 1998) (government’s interest in resolving criminal cases expeditiously sufficient). But see, e.g., Yates, 438 F.3d at 1316 (government’s interest in presenting evidence efficiently insufficient). Thomas’s test may allow the right to confrontation to be “easily . . . dispensed with.”89×89. Craig, 497 U.S. at 850.
The New Mexico Supreme Court’s decision in Thomas illustrates how courts address the absence of face-to-face confrontation as technology offers greater efficiency in trials. The Thomas opinion demonstrates the need for guidance defining the constitutional limits of two-way video testimony so that lower courts are not forced to draw the lines for themselves. Determining the permissibility of two-way video testimony will grow in importance as the world continues to globalize and as more witnesses lie outside the reach of the criminal justice system.90×90. Cf. McAllister, supra note 60, at 838. The stakes of this question are especially high for a defendant whose liberty is at stake. While a bright-line rule excluding all two-way video testimony for prosecution witnesses may not be necessary or appropriate, a clearer definition of confrontation or reliability would guide counsel and judges alike and better delineate the confrontation right the Constitution guarantees.