COURT ADOPTS AMENDMENTS TO REMOTE TESTIMONY RULE
MIKE HAGBURG Attorney at Law
The Supreme Court amended Administrative Rule 52 effective March 1 to allow witness testimony by reliable electronic means in criminal cases when this testimony is authorized by rule or law .
The general constitutional principle that permits remote testimony in a criminal case was announced by the United States Supreme Court in Maryland v . Craig , 497 U . S . 836 ( 1990 ). In Craig , the Court held that alternatives to in-person , face-to-face confrontation may be allowed “ only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured .”
The specific law that prompted the March 1 amendment to Rule 52 was N . D . C . C . 31-04-04.2 , which took effect in 2017 . This statute allows the use of audiovisual equipment for the remote testimony of minors or disabled adult witnesses . Before such testimony is permitted , however , the court must find that “ the testimony of the witness in the presence of the defendant would result in the witness suffering serious emotional distress or trauma that would impact the ability of the witness to reasonably communicate .”
Prior to March 1 , Rule 52 would have allowed a defendant to veto remote witness testimony that otherwise could be permitted under 31-04-04.2 . Indeed , language barring remote witness testimony over a defendant ’ s objection in a criminal case was part of the rule since its adoption in 2005 .
Maintaining strict limits on remote witness testimony is consistent with almost 20 years of U . S . Supreme Court decisions . In 2002 , the high court rejected a proposed amendment to Rule 26 of the Federal Rules of Criminal Procedure that would have allowed testimony by two-way video conferencing . Justice Scalia filed a statement explaining the court ’ s action , in which he stated the proposal “[ was ] of dubious validity under the Confrontation Clause .”
In 2004 , the Supreme Court in Crawford v . Washington , 541 U . S . 36 ( 2004 ), raised the bar for admission of hearsay statements in criminal cases , explaining such statements are inherently at odds with the Confrontation Clause . Later , in Melendez-Diaz v . Massachusetts , 557 U . S . 305 ( 2009 ), the Court held it was a violation of the Confrontation Clause to allow submission of a chemical test report without the testimony of the person who performed the test .
The Melendez-Diaz decision had a practical impact on practice in state courts - especially in drug and DUI cases - because it required more live testimony from lab technicians . This led some prosecutors to explore ways to expand the use of witness testimony by remote means . A recent Iowa case , however , shows that legal barriers remain to increased remote testimony .
In State v . Rogerson , 855 N . W . 2d ( Iowa 2014 ), a DUI case , the trial court had granted the state ’ s pretrial motion to allow six witnesses ( including lab technicians ) to testify via a two-way videoconferencing system . On appeal , the Iowa Supreme Court reviewed a wide range of case law on the issue of whether such witness testimony could be allowed . The court ultimately found that , while the state showed in-person testimony was expensive and inconvenient , it did not meet its burden of showing remote testimony was necessary .
The Rogerson case provides a useful resource because of the broad range of case law analyzed by the court . The cases reviewed in the Rogerson opinion show courts across the country generally consider allowing remote testimony over a criminal defendant ’ s objection only when this testimony comes from vulnerable victims , like children . In addition , the nationwide case law establishes that courts consistently deny remote testimony requests justified primarily by convenience and economy .
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