Missouri Supreme Court docket To Determine If Distant Testimony Protects Constitutional Rights

One of the most cherished rights Americans are guaranteed is the right to look accusers in the eyes and testify publicly.

The Sixth Amendment describes it as the right of a defendant “to be confronted with the witnesses against him”. The Missouri Constitution has the right to “meet the witnesses against him face to face.”

Two cases before the Missouri Supreme Court will review these rights as technology advances and court operations are disrupted by the COVID-19 pandemic. The High Court’s decision could resolve conflicting views from two state appeals courts.

In a case brought before the pandemic, Rodney Smith, of St. Louis, was convicted of double rape in a trial that included a two-way video testimony from a police laboratory worker. The Eastern District Court of Appeals concluded that Smith’s rights had not been violated, but referred the case to the Supreme Court in April “because the use of two-way video testimony in a criminal case raises important questions of general interest …”

In the other, Jackson County, a 12-year-old youth accused of sexually molesting another child was detained at a family court hearing on June 19, 2020. As access was restricted due to COVID-19 restrictions, only the judge, judge staff, juvenile and juvenile attorney were present in the courtroom.

On Tuesday, the Western District Court of Appeals concluded that allowing the victim, the victim’s mother and a juvenile officer to testify remotely violated the juvenile’s right to confront witnesses.

In most cases, wrote Judge Alok Ahuja, the court would “normally overturn the district court’s judgment and remit it for further trial.”

The COVID-19 pandemic and restrictions on public activity “relate to circumstances that have not existed in the United States for more than a century,” Ahuja wrote. “The way to reconcile this unique circumstance with the rights of the confrontation clause of an accused juvenile or criminal defendant raises a new question that needs a unified nationwide solution.”

In addition, he wrote, “There are likely several cases where similar problems can arise.”

A decision in both cases is likely months away due to court plans for filing written pleadings and planning oral arguments.

The number of cases that could be affected is unknown. Both cases are being handled by the Missouri Attorney’s Office. Mary Fox, director of the agency, said she couldn’t comment on the details.

Fox also said she doesn’t know how many cases assigned to her office have similar issues from studies conducted during the pandemic.

A group of 14 law professors who teach and write on criminal proceedings, including former Missouri Supreme Court Justice Mike Wolff, filed a brief in Smith’s case arguing that the court should require testimony in court trials. Person.

“This court should make it clear that, despite their good intentions, emergency measures cannot and must not circumvent constitutional protection,” states Chad Flanders of St. Louis University and Michael Durham of Dowd & Dowd law firm.

There are situations where essential statements are not possible in court and where procedural rules, laws and previous court cases define them, Flanders said in an interview with The Independent. When a witness is being treated for illness and cannot be moved, or when a child is allowed to testify on video about abuse so as not to be in the same room with their tormentor, that includes, he said.

“Our point is that courts should be very careful and not automatically assume that virtual testimony is as good as an actual confrontation,” said Flanders.

The falls

Whether the Supreme Court resolves both cases in the same way likely depends on whether it thinks they are similar enough.

In Smith’s case, only one witness testified from afar.

A police lab employee who took a DNA sample from Smith was unable to go to court for the August 2019 trial because, according to the factual description in the Eastern District statement, he was on paternity leave under the Family and Medical Leave Act. St. Louis Police Department forbids any work during this vacation, so he could not get to the courthouse without breaking this rule.

Smith’s attorneys objected to the report, which linked his DNA results to the DNA analysis of the victim’s forensic examination. Only the lab worker could testify about the collection and handling of Smith’s sample.

To circumvent the restrictions imposed by departmental rules, District Judge Clinton Wright allowed the lab worker to testify remotely because he was “unavailable” to testify in person.

The testimony that was crucial to the conviction was the only testimony offered remotely.

“(B) Because Hall was ‘unavailable’ and the live two-way video trial used by the court preserved all elements of the defendant’s rights of confrontation, the court did not misuse its discretion, nor was there any apparent injustice in admitting his virtual testimony” wrote Judge Mary Hoff in the Eastern District Opinion.

In the case of adolescents, all testimonies were made remotely. Judge Jalilah Otto allowed this because of the COVID-19 pandemic, citing the rules of the Supreme Court, which allow online hearings and the operational rules of the 16th district, “restrict personal proceedings as much as possible”.

That was not good enough, wrote Ahuja.

The Supreme Court order pending during the pandemic has expressly exempted juvenile delinquency proceedings. It also recognized that online procedures may only be used “insofar as this is not prohibited by constitutional or statutory provisions”.

“We acknowledge the devastating toll the COVID-19 pandemic has taken in the United States and the significant impact the pandemic has had on all aspects of American society,” Ahuja wrote.

However, unless the court makes specific determinations to substantiate the need for a virtual hearing, “general concerns about the virus may not trump a person’s constitutional right to stand against opposing witnesses in juvenile detention,” he wrote.

Confrontation clause

The right to confrontation in the Sixth Amendment arose from court practice in England and the American colonies that made unilateral statements such as affidavits unacceptable as evidence in non-cross-examining criminal trials.

According to the Cornell Law School’s online legal intelligence institute, the US Supreme Court in an 1895 ruling outlined three purposes of the confrontation clause. The first is to guarantee the testimony and understand the seriousness of the trial. The second option is to allow cross-examination.

The third is to “allow the jury to assess a witness’s credibility by observing that witness’s conduct”.

On video, Flanders said, the jury was only allowed to see the witness’s head. That is, they miss if the witness’s leg is trembling or the witness is drumming his fingers, he said.

“They’re picking up on these things,” he said. “I think this is just human psychology 101, you take in non-verbal cues from what they tell you.”

Remote statements are more susceptible to manipulation, said Flanders.

That was demonstrated at a hearing in Michigan in March when a defendant on a domestic assault case was in the same room as his alleged victim while testifying in a hearing. He was under a contactless order and lied about his location. The police arrested him after the hearing was over.

In the state’s letter in the Smith case, Assistant Attorney General Kristen Johnson wrote that the Missouri Supreme Court should not be swayed by arguments that video testimony lends itself to problems like the Michigan case.

“(D) the question is not whether virtual testimony perfectly simulates a physical appearance: it is rather whether it provides sufficient ‘confrontation’ under the Sixth Amendment under the circumstances of a particular case,” wrote Johnson.

Rudi Keller is a reporter for The Missouri Independent, a news partner of St. Louis Public Radio.

The Missouri Independent is part of States Newsroom, a network of news agencies supported by grants and a coalition of donors as a 501c (3) public charity. Missouri Independent retains editorial independence. If you have any questions, please contact the editor, Jason Hancock: [email protected].