"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Thursday, November 17, 2016

(Tele-prompted) testimony through Skype is now ok'ed by a New York appellate court in criminal cases

I recently watched a 2008 Russian movie called "Setj" ("The Network").  It is about computer geeks who were raised and educated by the government according to a secret program locating young geniuses and raising them as super-computer hackers.

There is an episode in the movie where two such super-hackers oppose one another, one working for a "bad guy", one working for the law enforcement.

The "bad guy" was suspected to have dealings with a terrorist who was recently killed - according to some news reports.

The "good geek" is trying to persuade the "bad geek" that the terrorist is not actually dead, in order to solicit a new communication with the "bad geek's" boss and thus obtain evidence against him about dealing with terrorists.

Once again, that is a 2008 movie.  Maybe, it is science fiction.  Maybe, it is not.

What was shown was how the "good geek" places multiple electrodes all over his body and his face, and a special software then translates his bodily and facial movements into the bodily and facial movements of the already-dead terrorist (the law enforcement had a video of that terrorist on file, and was using it).

In the movie, the, let's say, puppeteering of the dead terrorist's image through software was so real that the "bad guy" and the "bad geek" bought into it.

It is a movie, yes.  But, with the current video editing technology and hacking technology, even video evidence is becomes highly questionable.

And, video testimony should be unacceptable in the courtroom, especially in criminal trials where the defendant has a constitutional right to confront his accuser - and for that, the accuser must be present in the courtroom and his identity confirmed.

Moreover, when a witness testifies in a trial, the witness may not receive help from anybody in giving the testimony - by reading from prepared answers to questions, or by reading from a prompter providing answers on a computer screen placed before the witness.

Of course, all those protections go out the door when a video testimony is involved.  A person testifying by video can have a prompter put in front of him or her and can read testimony off that prompter, making such a testimony inadmissible, and a conviction based on that testimony unconstitutional, being in violation of the Confrontation Clause.

Yet, 2 days ago, a New York State Appellate Court affirmed a conviction of a person made upon testimony by Skype, and from another country (Egypt), where there was no opportunity to verify authenticity of testifying witness, or whether the testifying witness testified without "help" from a prompter.

The court concentrated in its reasoning only on whether the prosecution was at fault in not being able to produce the complaining witness in the courtroom.

The court paid no attention to whether the testimony of such a witness through a video, and from another country, is properly authenticated as to the identity of the witness (whether it was that witness, or a "Network"-like software imposition), and whether the testimony is proper as to verification that the prosecution did not establish an Internet connection with the witness, teleprompting the witness as to the "necessary" testimony and the necessary answers on cross-examination, or can even be considered a testimony in a New York court.

We are in 2016.  Computer and video technology advances at a lightning rate.

Yet, the court relied upon the New York State Court of Appeals case from 2008 that said that video testimony may be allowed, and claimed that "[d]efendant concedes that the two-way video testimony at issue "preserve[d] the essential safeguards of testimonial reliability".

At least, the case gives hope to other defendants who would not concede - as this defendant's counsel stupidly did - that "the two-way video testimony" "preserved the essential safeguards of testimonial reliability".

Because it does not.

And, the case upon which the 1st Department relied, had factual differences that prevented that case from being used as a precedent in the case with an out of the country witness.

First, People v Wrotten, a 2009 New York State Court of Appeals case, incorrectly quoted as a 2008 case in People v Giurdanella, was about an elderly disabled witness for the prosecution who allegedly could not travel from California to New York to attend the trial because of his age and disability.  The witness appeared IN COURT, in California, and testified FROM A COURTROOM, so there were ways to verify the witness's identity, even if the representative of the defendant was to travel to California to do that - or to rely upon authentication by California court officials.

That situation was starkly different from the situation in People v Giurdanella where the witness was located in another country, and the testimony by Skype was given from an unknown location.  Even though communications with a U.S. attache in Egypt were involved to discuss whether the witness did or did not board the plane to New York, there is no indication in the court's decision whether the attache was present during the Skype testimony of the witness from Egypt and authenticated the identity of the witness, or that the witness was not tele-prompted by the prosecution in his testimony on direct and cross-examination.

I would note TWO gross mistakes of the defense counsel - at trial and on appeal.

At trial, the defense counsel stated (and the appellate court used in affirming the conviction): "I have the highest respect for [the prosecutor], I am sure he has made good faith efforts here".  The expression of defense counsel's "respect" for the prosecutor, which worked only not to alienate the prosecutor in other cases that the defense counsel may have handled with that prosecutor, was completely inappropriate - because the defense counsel actually CONCEDED what he had no way of knowing, whether the prosecution was lying to the court or not as to their "good faith efforts" to present the witness at trial.

Once the defense counsel claimed he believes that the prosecution was acting in good faith, the defense counsel blocked himself from expressing any suspicions as to possible foul play of the prosecution with video testimony and possible use of tele-prompters.

The second mistake, as I stated above, was by the appellate defense counsel who, not being an expert in computer technology, nevertheless conceded that the two-way video on Skype from another country allegedly "preserved the essential safeguards of testimonial reliability".

In 2009, the New York State Court of Appeals, in People v Wrotten, relied upon a statute in allowing the court to introduce "innovative technology" such as two-way video testimony, Judiciary Law 2-b(3), stating:

"by enacting Judiciary Law § 2-b (3), the Legislature has explicitly authorized the courts' use of innovative procedures where "necessary to carry into effect the powers and jurisdiction possessed by [the court]."

Yet, New York State Court of Appeals did bow to the U.S. Constitution by stating, in the next phrase in People v Wrotten, that:

"Thus, as we have acknowledged, courts may fashion necessary procedures consistent with constitutional, statutory, and decisional law".

In People v Wrotten the New York State Court of Appeals also relied on a U.S. Supreme Court decision, Maryland v Craig, 497 U.S. 836, 850 (1990), that stated that live testimony via one-way closed-circuit television is permissible under the Federal Constitution, provided that there is:

  • an individualized determination that denial of "physical, face-to-face confrontation is necessary to further an important public policy"; and that
  • the reliability of the testimony is otherwise assured.

Yet, in People v Giurdanella there was no closed-circuit television, but a Skype Internet connection, open to hackers and to teleprompting by the prosecution, nor did the court in People v Giurdanella make a determination that "denial of physical, face-to-face confrontation is necessary to further an important public policy".

By the way, in Maryland v Craig the U.S. Supreme Court amendment the Confrontation Clause by putting into it this "public policy" exception that was (1) not contained in the text of that Amendment, and while (2) the U.S. Supreme Court cannot make public policy determinations - that is the exclusive prerogative of the U.S. Congress under Article I of the U.S. Constitution.

Yet, People v Giurdanella did not comply with either progns of Maryland v Craig test, and the circumstances of People v Giurdanella did not assure authentication of the witness, as it happened in People v Wrotten, and thus, the 1st Department had to reverse the conviction as being in violation of Confrontation Clause.

Let's also not forget that Maryland v Craig, talking about reliability of video testimony, was decided 26 years ago, which is the same as 26 light years in terms of development of Internet technology.

Social media and Skype were unheard of in 1990, and the possibilities of tele-prompting through text messages during Skype testimony were also unheard of.

But, in 2016, the 1st Department judges could not feign lack of knowledge of such tele-prompting possibilities for Skype testimony, or for testimony through Internet - because the witness could simultaneously receive tele-prompting messages from prosecution not necessarily on Skype, but on a number private chatting devices, where chatrooms are created for just one session and instantly disappear when the session ends, making it practically impossible to catch the prosecution in such tele-prompting.

This conviction should have and would have been overturned.

But for.

But for the concessions of the defense counsel -

I do not know the name of the "hero" criminal defense attorney at trial.

The "hero" defense attorney on appeal was, according to the court decision, Ernest H. Hammer, an attorney who was already disciplined for neglect of clients.

Attorney Ernest H. Hammer was admitted to practice law in 1959.

Assuming he was admitted at the age of 25-26, as attorneys usually are, his date of birth is 1933-1934, making Attorney Hammer 82 or 83 years old.

Hammer was admitted before the CPLR and many of Penal Law and Criminal Procedure Law statutes were enacted.  Based on his discipline for client neglect, there is a question, whether he took his time to learn the new law, and whether he conceded his clients' issues as a matter of neglect - because he just did not take the time to put the necessary effort into the appeal.

I do not know whether attorney Hammer was a retained counsel (a bad mistake), or an assigned counsel (possibly, an act of bad faith on behalf of the 1st Department), but an 82-83-year-old attorney who was already disciplined for neglecting his clients, was a bad choice in a case dealing with "innovative technologies" in the courtroom.

It is possible that attorney Hammer conceded reliability of a two-way video by Skype from another country because of his age, awe, fear of enthrallment of the present computer technology.

Possibly, attorney Hammer, due to his age, has no clue what Skype is and what possibilities of tele-prompting it offers, or that a video interview, at least theoretically, can be puppeteer from one person to the image of another through software.

Anyway, the problem with "precedents" is that prosecution will now start aggressively using Skype testimony - possibly, with tele-prompting - from far and wide, from other states and other countries, relying on this "precedent", and completely forgetting the concessions made in this case and the failure to comply with the prior precedents the court relied upon in that same "precedents".

Here is also the panel of judges that made the decision in People v Giurdanella:  Acosta, J.P., Renwick, Saxe, Feinman, Kahn, JJ.

Presiding judge: Rolando T. Acosta

According to his official biography, Judge Acosta was appointed to the Appellate Division 1st Department in 2008.  As a lawyer, he had to re-register showing his new place of employment, within 30 days of appointment.  Yet, 8 years was not enough for Judge Acosta to comply with attorney disciplinary rules.  By the way, this is the judge who presides over attorney disciplinary cases.

Such an "inattention to detail" - or, rather, disdain to the rule of law pertaining to himself - is an obvious disqualification for a judge presiding over attorney disciplinary cases, and presiding over appeals.

Judge Acosta is, also according to his official biography, a former legal aid society attorney - but also is a former prosecutor.  Given in how many time-consuming capacities Judge Acosta "serves" outside of the courtroom:

  1. a Trustee of Columbia University;
  2. a member of The Dean's Council of Columbia Law School;
  3. a member of the New York State Commission on Judicial Conduct;
  4. a member of the Chief Judge's Task Force to Expand Access to Civil Legal Services in New york,
  5. a member of the New york City Bar's Council on the Profession, and
  6. a Fellow of the New York Bar Foundation

it is unlikely Judge Acosta paid any attention to this case or authored the decision, and it is likely that the decision was instead written by a student intern or a law clerk.

Judge Acosta is, counting on the date of his admission, 1983, at least 58 years of age and may have no clue about possibilities of Skype and Internet instant messaging and private chatrooms for tele-prompting a witness, as well as about the possibilities of puppeteering software, super-imposing movements, including facial movements of one person upon the picture of the other.

Panel judge: Dianne T. Renwick

Dianne Renwick is at least 54 years of age, according to her attorney registration.

Dianne Renwick was also likely disqualified from presiding over this particular case, but obviously did not recuse herself. 

According to her official biography, "[s]he has appeared as a guest commentator on the Courtroom Television Network (Court TV)", where CTV is a private company promoting televised testimony of experts.  Thus, Judge Renwick may have a financial interest in approving courtroom testimony by Skype, because such testimony significantly reduces costs of either producing the witness in the courtroom, or assuring reliability of video testimony.

Judge Renwick also "serves" in multiple capacities outside of the courtroom (I wonder if Judge Renwick did that on her taxpayer-paid time as a judge):

  1. Member of the Board of Benjamin N. Cardozo School of Law;
  2. Member of the Board of the New York Botanical Garden;
  3. Member of the Advisory Board of the President's Council of Cornell Women;
  4. Member of The Picture House Regional Film Center, and
  5. Member of the New York American Inn of Court - while the American Inns of Court is a non-profit corporation and a secret-membership attorney-sponsored organization that regularly wines and dines judges and takes judges on national and international trips, for free.  As to "secret" membership, click on "members" or "meetings" on the site of that organization, and you will see that you will not be allowed to see who is the member of the organization, or when such members meet, or what is the agenda.
As with every judge-member of American Inns of Court, a litigant may not be assured that the judge was not wined and dined or taken on travels by his opponent in litigation, and that the judge's decisions are not tainted.

That's what Judge Renwick does at present, in addition to being a supposedly overwhelmed and overloaded state appellate court judge (that's why she received a salary raise recently - because she was overwhelmed).

A person overwhelmed by her caseload will not be able to "serve" on so many "boards" outside of her job, will she?

In addition to the present additional "jobs" where Judge Renwick "serves", in the past, she "served" also in these capacities:
  1. as a guest commentator (very likely, paid), on Courtroom Television Network;
  2. as a teacher of advocacy programs sponsored by law schools and bar associations, including at:
    1. Harvard Law School;
    2. Cardozo Law School;
    3. Hofstra Law School, and
    4. The New York County Lawyers Association;
  3. Chair of City Marshal's Committee;
  4. Chair of New York State Continuing Legal Education Board;
  5. Committee/board member, Governor's Task Force on Judicial Diversity;
  6. Committee/board member, Chess in the Schools;
  7. Committee/board member, Board of Directors of Academy of Mt. St. Ursula;
  8. Committee/board member, the Black Bar Association of Bronx County;
  9. Committee/board member, the Lehman College Art Gallery;
  10. Committee/board member, the Pelham Art Center.

Tell me, where will this busy judge get the time to review and decide her "overwhelming" case load?  Looks like it is interns and law clerks who are making decisions for this judge, too - it is impossible to handle such a number of "services" outside the courtroom and still do the job of an appellate judge properly.

Panel Judge: David B. Saxe, age 74 (mandatory retirement age for judges in New York is 70, appellate judges are allowed 3 2-year extensions if they certify their health is good and they can handle the caseload).

At this time, Judge Saxe self-reports "serving" out of court as:

1) a member of the New York Regional Board of Directors of the Anti-Defamation League, and
2) being a member of New York State Bar Association,

less out of court "jobs" than for the previous two judges, but still, serving on any Board of Directors may take a judge from discharging his duties as a judge, especially in appellate courts claiming to be overwhelmed by cases.

I also highly doubt that a 74-old judge knows a lot about social media, Internet or Skype.  I doubt that this judge knows about reliability of Skype technologies for purposes of courtroom testimony in a criminal case, through Internet, from another country.

And, there is no indication that prosecution provided to the judge expert testimony or expert evidence confirming such reliability - so the case was supposed to be a slam-dunk of a reversal, but for, of course, the stupid, neglectful or corrupt concession by the defense counsel that two-way testimony over the Internet from another country had "safeguards" for testimonial reliability.

Panel Judge: Paul G. Feinman

According to his attorney registration, Judge Feinman is at least 56 years of age.

Judge Feinman was appointed as the first gay man to serve on New York appellate court - and, being gay or straight, man or woman, black, white, Asian or Native American should not serve as ANY qualification for ANY public office.  Apparently, Judge Feinman is a political appointment and his competency, thus, is questionable.

Judge Feinman reports participating in the following out of court associations:

American Judges Association
• Formerly New York representative to Board of Governors
Association of Justices of the Supreme Court of the State of New York
• President, 2015
Board of Justices, First Judicial District
• Treasurer, 2010-13
Citywide Association of Supreme Court Justices
• 2nd Vice President, 2015-2016
International Association of Lesbian and Gay Judges
• Past President, 2008-11
New York State and City Association of Lesbian and Gay Judges


American Bar Association
American Constitution Society
Jewish Lawyers’ Guild
Lesbian, Gay, Bisexual and Transgender Bar Association of Greater New York ["LeGaL"]
• Past President, 1996
National LGBT Bar Association
New York City Bar Association
New York County Lawyers’ Association
New York State Bar Association
• Judicial Section, Presiding Member, 2012-13
Women’s Bar Association of the State of New York, New York County Chapter

With such a great array of out-of-court "services", there is not much doubt that Judge Feinman hardly reviews any cases, and that, instead, his student interns and law clerks do that for him - especially that in New York, appellate judges do not even sign their decisions, the court clerks instead rubber-stamp their facsimile signatures instead.

Panel Judge: Marcy L. Kahn

Judge Marcy Kahn is at least 66 years of age, according to her attorney registration (attorneys are admitted in New York after a high school, a 4-year college and a 3-year law school, at the age of 25-26 at least).

Judge Marcy Kahn is currently the Chair of New York Tribal Courts Committee in the New York State Unified Court System, a "service" which necessarily must take a lot of Judge Kahn's time, time away from her duties as a judge that taxpayers pay her to do.

* * *

The case involved a 30-day jail sentence.

Not a lot, some would say.  Of course, unless that would concern the individual directly, 30 days do not seem like a lot of time.

Yet, this case may become a nightmare for criminal defense attorneys.

In Maryland v Craig in 1990 the U.S. Supreme Court mentioned only "closed circuit television" where the witness was a 6-year-old child.  By the way, in Maryland v Craig, there was a vigorous dissent by 4 judges: Scalia, Brennan, Marshall and Stevens.


Justice SCALIA, with whom Justice BRENNAN, Justice MARSHALL, and Justice STEVENS join, dissenting.

Seldom has this Court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion.

The Sixth Amendment provides, with unmistakable clarity, that "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."

The purpose of enshrining this protection in the Constitution was to assure that none of the many policy interests from time to time pursued by statutory law could overcome a defendant's right to face his or her accusers in court.

The Court, however, says: "We . . . conclude today that a State's interest in the physical and psychological wellbeing of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court.

That a significant majority of States has enacted statutes to protect child witnesses from the trauma of giving testimony in child abuse cases attests to the wide-spread belief in the importance of such a public policy."
Ante at 497 U. S. 853.

Because of this subordination of explicit constitutional text to currently favored public policy, the following scene can be played out in an American courtroom for the first time in two centuries:

A father whose young daughter has been given over to the exclusive custody of his estranged wife, or a mother whose young son has been taken into custody by the State's child welfare department, is sentenced to prison for sexual abuse on the basis of testimony by a child the parent has not seen or spoken to for many months, and the guilty verdict is rendered without giving the parent so much as the opportunity to sit in the presence of the child, and to ask, personally or through counsel, "it is really not true, is it, that I -- your father (or mother) whom you see before you -- did these terrible things?"

Perhaps that is a procedure today's society desires; perhaps (though I doubt it) it is even a fair procedure; but it is assuredly not a procedure permitted by the Constitution.

Because the text of the Sixth Amendment is clear, and because the Constitution is meant to protect against, rather than conform to, current "widespread belief," I respectfully dissent.
Page 497 U. S. 862


According to the Court, "we cannot say that [face-to-face] confrontation [with witnesses appearing at trial] is an indispensable element of the Sixth Amendment's guarantee of the right to confront one's accusers."
Ante at 497 U. S. 849-850.

That is rather like saying "we cannot say that being tried before a jury is an indispensable element of the Sixth Amendment's guarantee of the right to jury trial."

The Court makes the impossible plausible by recharacterizing the Confrontation Clause, so that confrontation (redesignated "face-to-face confrontation") becomes only one of many "elements of confrontation." Ante at 497 U. S. 846.

The reasoning is as follows: The Confrontation Clause guarantees not only what it explicitly provides for --

"face-to-face" confrontation -- but also implied and collateral rights such as

cross-examination, oath, and observation of demeanor (TRUE);

the purpose of this entire cluster of rights is to ensure the reliability of evidence (TRUE);

the Maryland procedure preserves the implied and collateral rights (TRUE),

which adequately ensure the reliability of evidence (perhaps TRUE);

therefore the Confrontation Clause is not violated by denying what it explicitly provides for -- "face-to-face" confrontation (unquestionably FALSE).

This reasoning abstracts from the right to its purposes, and then eliminates the right.

It is wrong because the Confrontation Clause does not guarantee reliable evidence; it guarantees specific trial procedures that were thought to assure reliable evidence, undeniably among which was "face-to-face" confrontation.

Whatever else it may mean in addition, the defendant's constitutional right "to be confronted with the witnesses against him" means, always and everywhere, at least what it explicitly says: the "right to meet face to face all those who appear and give evidence at trial.'" Coy v. Iowa, 487 U. S. 1012, 487 U. S. 1016 (1988), quoting California v. Green, 399 U. S. 149, 399 U. S. 175 (1970) (Harlan, J. concurring).
Page 497 U. S. 863

The Court supports its antitextual conclusion by cobbling together scraps of dicta from various cases that have no bearing here. It will suffice to discuss one of them, since they are all of a kind: Quoting Ohio v. Roberts, 448 U. S. 56, 448 U. S. 63 (1980), the Court says that "[i]n sum, our precedents establish that 'the Confrontation Clause reflects a preference for face-to-face confrontation at trial,'"
ante at 497 U. S. 853. (emphasis added by the Court).

But Roberts, and all the other "precedents" the Court enlists to prove the implausible, dealt with the implications of the Confrontation Clause, and not its literal, unavoidable text.

When Roberts said that the Clause merely "reflects a preference for face-to-face confrontation at trial," what it had in mind as the nonpreferred alternative was not (as the Court implies) the appearance of a witness at trial without confronting the defendant. That has been, until today, not merely "nonpreferred" but utterly unheard-of. What Roberts had in mind was the receipt of other-than-first-hand testimony from witnesses at trial -- that is, witnesses' recounting of hearsay statements by absent parties who, since they did not appear at trial, did not have to endure face-to-face confrontation.

Rejecting that, I agree, was merely giving effect to an evident constitutional preference; there are, after all, many exceptions to the Confrontation Clause's hearsay rule.

But that the defendant should be confronted by the witnesses who appear at trial is not a preference "reflected" by the Confrontation Clause; it is a constitutional right unqualifiedly guaranteed.

The Court claims that its interpretation of the Confrontation Clause
"is consistent with our cases holding that other Sixth Amendment rights must also be interpreted in the context of the necessities of trial and the adversary process."

Ante at 497 U. S. 850. I disagree. It is true enough that the "necessities of trial and the adversary process" limit the manner in which Sixth Amendment rights may be exercised, and limit the scope of Sixth Amendment guarantees to the extent that scope is textually indeterminate. Thus (to describe the cases the Court cites):

The right to confront is not the right to confront in a manner that disrupts the trial. Illinois v. Allen, 397 U. S. 337 (1970).

The right "to have compulsory process for obtaining witnesses" is not the right to call witnesses in a manner that violates fair and orderly procedures. Taylor v. Illinois, 484 U. S. 400 (1988).

The scope of the right "to have the assistance of counsel" does not include consultation with counsel at all times during the trial. Perry v. Leeke, 488 U. S. 272 (1989).

The scope of the right to cross-examine does not include access to the State's investigative files. Pennsylvania v. Ritchie, 480 U. S. 39 (1987).

But we are not talking here about denying expansive scope to a Sixth Amendment provision whose scope for the purpose at issue is textually unclear; "to confront" plainly means to encounter face-to-face, whatever else it may mean in addition. And we are not talking about the manner of arranging that face-to-face encounter, but about whether it shall occur at all. The "necessities of trial and the adversary process" are irrelevant here, since they cannot alter the constitutional text.


Much of the Court's opinion consists of applying to this case the mode of analysis we have used in the admission of hearsay evidence. The Sixth Amendment does not literally contain a prohibition upon such evidence, since it guarantees the defendant only the right to confront "the witnesses against him."

As applied in the Sixth Amendment's context of a prosecution, the noun "witness" -- in 1791 as today -- could mean either (a) one "who knows or sees any thing; one personally present" or (b) "one who gives testimony" or who "testifies," i.e.,
"[i]n judicial proceedings, [one who] make[s] a solemn declaration under oath, for the purpose of establishing or making proof of some fact to a court."
2 N. Webster, An American Dictionary of the English Language (1828) (emphasis added). See also J. Buchanan, Linguae Britannicae Vera Pronunciatio (1757). The former meaning (one "who knows or sees") would cover hearsay evidence, but is excluded in the Sixth Amendment by the words following the noun: "witnesses against him."

The phrase obviously refers to those who give testimony against the defendant at trial. We have nonetheless found implicit in the Confrontation Clause some limitation upon hearsay evidence, since otherwise the Government could subvert the confrontation right by putting on witnesses who know nothing except what an absent declarant said.

And in determining the scope of that implicit limitation, we have focused upon whether the reliability of the hearsay statements (which are not expressly excluded by the Confrontation Clause) "is otherwise assured." Ante at 497 U. S. 850. The same test cannot be applied, however, to permit what is explicitly forbidden by the constitutional text; there is simply no room for interpretation with regard to "the irreducible literal meaning of the Clause." Coy, supra, 487 U.S. at 487 U. S. 1020-1021.

Some of the Court's analysis seems to suggest that the children's testimony here was itself hearsay of the sort permissible under our Confrontation Clause cases. See ante at 497 U. S. 851. That cannot be. Our Confrontation Clause conditions for the admission of hearsay have long included a "general requirement of unavailability" of the declarant. Idaho v. Wright, ante, at 497 U. S. 815.

"In the usual case . . . , the prosecution must either produce or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant." Ohio v. Roberts, 448 U.S. at 448 U. S. 65.

We have permitted a few exceptions to this general rule -- e.g., for co-conspirators' statements, whose effect cannot be replicated by live testimony because they "derive [their] significance from the circumstances in which [they were] made," United States v. Inadi, 475 U. S. 387, 475 U. S. 395 (1986). "Live" closed-circuit television testimony, however -- if it can be called hearsay at all -- is surely an example of hearsay as "a weaker substitute for live testimony," id. at 394, which can be employed only when the genuine article is unavailable.
"When two versions of the same evidence are available, longstanding principles of the law of hearsay, applicable as well to Confrontation Clause analysis, favor the better evidence."
Ibid. See also Roberts, supra, (requiring unavailability as precondition for admission of prior testimony); Barber v. Page, 390 U. S. 719 (1968) (same).

The Court's test today requires unavailability only in the sense that the child is unable to testify in the presence of the defendant. [Footnote 2/1] That cannot possibly be the relevant sense.

If unconfronted testimony is admissible hearsay when the witness is unable to confront the defendant, then presumably there are other categories of admissible hearsay consisting of unsworn testimony when the witness is unable to risk perjury, uncross-examined testimony when the witness is unable to undergo hostile questioning, etc. California v. Green, 399 U. S. 149 (1970), is not precedent for such a silly system.

That case held that the Confrontation Clause does not bar admission of prior testimony when the declarant is sworn as a witness but refuses to answer. But in Green, as in most cases of refusal, we could not know why the declarant refused to testify. Here, by contrast, we know that it is precisely because the child is unwilling to testify in the presence of the defendant. That unwillingness cannot be a valid excuse under the Confrontation Clause, whose very object is to place the witness under the sometimes hostile glare of the defendant.

"That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult."
Coy, 487

U.S. at 487 U. S. 1020. To say that a defendant loses his right to confront a witness when that would cause the witness not to testify is rather like saying that the defendant loses his right to counsel when counsel would save him, or his right to subpoena witnesses when they would exculpate him, or his right not to give testimony against himself when that would prove him guilty.


The Court characterizes the State's interest which "outweigh[s]" the explicit text of the Constitution as an "interest in the physical and psychological wellbeing of child abuse victims," ante at 497 U. S. 853, an "interest in protecting" such victims "from the emotional trauma of testifying," ante at 497 U. S. 855. That is not so.

A child who meets the Maryland statute's requirement of suffering such "serious emotional distress" from confrontation that he "cannot reasonably communicate" would seem entirely safe.

Why would a prosecutor want to call a witness who cannot reasonably communicate? And if he did, it would be the State's own fault. Protection of the child's interest -- as far as the Confrontation Clause is concerned [Footnote 2/2] -- is entirely within Maryland's control. The State's interest here is in fact no more and no less than what the State's interest always is when it seeks to get a class of evidence admitted in criminal proceedings: more convictions of guilty defendants. That is not an unworthy interest, but it should not be dressed up as a humanitarian one.
And the interest on the other side is also what it usually is when the State seeks to get a new class of evidence admitted: fewer convictions of innocent defendants -- specifically, in the
present context, innocent defendants accused of particularly heinous crimes. The "special" reasons that exist for suspending one of the usual guarantees of reliability in the case of children's testimony are perhaps matched by "special" reasons for being particularly insistent upon it in the case of children's testimony.

Some studies show that children are substantially more vulnerable to suggestion than adults, and often unable to separate recollected fantasy (or suggestion) from reality. See Lindsay & Johnson, Reality Monitoring and Suggestibility: Children's Ability to Discriminate Among Memories From Different Sources, in Children's Eyewitness Memory 92 (S. Ceci, M. Toglia, & D. Ross eds. 1987); Feher, The Alleged Molestation Victim, The Rules of Evidence, and the Constitution: Should Children Really Be Seen and Not Heard?, 14 Am.J.Crim.L. 227, 230-233 (1987); Christiansen, The Testimony of Child Witnesses: Fact, Fantasy, and the Influence of Pretrial Interviews, 62 Wash.L.Rev. 705, 708-711 (1987).

The injustice their erroneous testimony can produce is evidenced by the tragic Scott County investigations of 1983-1984, which disrupted the lives of many (as far as we know) innocent people in the small town of Jordan, Minnesota. At one stage, those investigations were pursuing allegations by at least eight children of multiple murders, but the prosecutions actually initiated charged only sexual abuse. Specifically, 24 adults were charged with molesting 37 children. In the course of the investigations, 25 children were placed in foster homes. Of the 24 indicted defendants, one pleaded guilty, two were acquitted at trial, and the charges against the remaining 21 were voluntarily dismissed. See Feher, supra, at 239-240. There is no doubt that some sexual abuse took place in Jordan; but there is no reason to believe it was as widespread as charged. A report by the Minnesota Attorney General's office, based on inquiries conducted by the Minnesota Bureau of Criminal Apprehension and the Federal Bureau of Investigation, concluded that there was an "absence of credible testimony and [a] lack of significant corroboration" to support reinstitution of sex-abuse charges, and "no credible evidence of murders." H. Humphrey, report on Scott County Investigation 8, 7 (1985).

The report describes an investigation full of well-intentioned techniques employed by the prosecution team, police, child protection workers, and foster parents, that distorted and in some cases even coerced the children's recollection. Children were interrogated repeatedly, in some cases as many as 50 times, id. at 9; answers were suggested by telling the children what other witnesses had said, id. at 11; and children (even some who did not at first complain of abuse) were separated from their parents for months, id. at 9. The report describes the consequences as follows:
"As children continued to be interviewed, the list of accused citizens grew. In a number of cases, it was only after weeks or months of questioning that children would 'admit' their parents abused them."
"* * * *"
.~ In some instances, over a period of time, the allegations of sexual abuse turned to stories of mutilations, and eventually homicide.
Id. at 10-11. The value of the confrontation right in guarding against a child's distorted or coerced recollections is dramatically evident with respect to one of the misguided investigative techniques the report cited: some children were told by their foster parents that reunion with their real parents would be hastened by "admission" of their parents' abuse. Id. at 9.

Is it difficult to imagine how unconvincing such a testimonial admission might be to a jury that witnessed the child's delight at seeing his parents in the courtroom?

Or how devastating it might be if, pursuant to a psychiatric evaluation that "trauma would impair, the child's ability to communicate" in front of his parents, the child were permitted to tell his story to the jury on closed-circuit television?
In the last analysis, however, this debate is not an appropriate one. I have no need to defend the value of confrontation,
because the Court has no authority to question it.

It is not within our charge to speculate that, "where face-to-face confrontation causes significant emotional distress in a child witness," confrontation might "in fact disserve the Confrontation Clause's truth-seeking goal."

Ante at 497 U. S. 857.

If so, that is a defect in the Constitution -- which should be amended by the procedures provided for such an eventuality, but cannot be corrected by judicial pronouncement that it is archaic, contrary to "widespread belief" and thus null and void.

For good or bad, the Sixth Amendment requires confrontation, and we are not at liberty to ignore it. To quote the document one last time (for it plainly says all that need be said): "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him" (emphasis added).
"* * * *"

The Court today has applied "interest-balancing" analysis where the text of the Constitution simply does not permit it.

We are not free to conduct a cost-benefit analysis of clear and explicit constitutional guarantees, and then to adjust their meaning to comport with our findings.

The Court has convincingly proved that the Maryland procedure serves a valid interest, and gives the defendant virtually everything the Confrontation Clause guarantees (everything, that is, except confrontation). I am persuaded, therefore, that the Maryland procedure is virtually constitutional. Since it is not, however, actually constitutional, I would affirm the judgment of the Maryland Court of Appeals reversing the judgment of conviction.

[Footnote 2/1]
I presume that, when the Court says "trauma would impair the child's ability to communicate," ante at 18, it means that trauma would make it impossible for the child to communicate. That is the requirement of the Maryland law at issue here: "serious emotional distress such that the child cannot reasonably communicate." Md.Cts. & Jud.Proc.Code Ann. § 9-102(a)(1)(ii) (1989). Any implication beyond that would, in any event, be dictum.
[Footnote 2/2]
A different situation would be presented if the defendant sought to call the child. In that event, the State's refusal to compel the child to appear, or its insistence upon a procedure such as that set forth in the Maryland statute as a condition of its compelling him to do so, would call into question -- initially, at least, and perhaps exclusively -- the scope of the defendant's Sixth Amendment right "to have compulsory process for obtaining witnesses in his favor."


Yes, this is "just" a 30-day sentence case.

But, through precedential law, it will be now applied to all cases in New York, and that's what makes it an unconstitutional nightmare for criminal defendants and their counsel.

Let's see the erosion of the Confrontation Clause:

1) Maryland v Craig - as the dissent pointed out, the court restricted, and thus amended, the Confrontation Clause in the name of public policy (which the court was not authorized to do), and in cases specifically related to children - alleged victims of sexual abuse.

The added problem, which the court did not consider, was presuming a child witness of the prosecution as a victim before the conviction - which is a pre-judgment of a criminal case and a violation of due process of law of the criminal defendant - see, for example, a motion in limine in a criminal case asking the court to prohibit the prosecution to refer to the ALLEGED victim as a "victim" (actual victim) in a criminal case.

Yet, Maryland v Craig referred

  • only to testimony through closed-circuit court television (where the witness is located in another court, and the witness's identity is ascertained); and
  • only in cases of sexual child abuse.
2) In New York, through People v Wrotten, one of the "Craig" justifications is dropped: the "state interests to protect child victims of sexual abuse".

The testimony of an adult - who was allegedly disabled and unable to travel to court in New York - was allowed, but still through a closed-circuit television, so the second "Craig" prong - testimony through a court closed-circuit television, remained.

3) In People v Giurdanella, both "Craig" justifications are now dropped:

  • the witness was not a child who was an alleged victim of sexual abuse; and
  • the testimony was not through a closed-circuit court television, but through an Internet application, where:
    • there was no assurance of the witness's identity; and
    • the witness could use that particular Internet application (Skype), and any number of other additional Internet applications (instant messaging, chatrooms) with the prosecution as tele-prompting the witness's testimony.
The witness was not allowed to board the plane from Egypt to New York - allegedly - because Egypt was at that point in the state of political upheaval, and the witness was supposed to be drafted into the Army.  Yet, the defense counsel provided an Internet printout to the court that dual citizens are not subject to conscription/draft in Egypt, which the court admitted into record, and then disregarded.

I must also point out that in People v Giurdanella the prosecution provided:

  • no proof of "public policy" as in Maryland v Craig to allow testimony by Skype from another country;
  • no expert testimony that testimony by Skype from another country is reliable (such a testimony is impossible, because Skype can easily be used for identity-substituting and tele-prompted video transmissions); and
  • while the witness did not appear in the middle of the trial because Egyptian authorities allegedly did not allow the witness to fly in, if there was no foul play by the prosecution, there was no testimony that the witness was PERMANENTLY blocked in Egypt and prevented from coming to trial, and that it was impossible to simply adjourn the trial for a reasonable time until the victim appears.
At the same time, what the trial and appellate court did not consider - and I am not sure whether such a motion was made - is a Criminal Procedure Law (CPL) 30.30 motion, the New York State statutory speedy trial motion.

There is no indication in the decision whether there was trial practice and when the charges were brought, as compared to when the crime was allegedly committed, but, when a prosecution says it is "ready for trial", the prosecution must actually be ready for trial, and proceed to trial - with live-witness testimony.

The appellate court noted that the whole problem was that the prosecution - allegedly - learnt of the unavailability of the witness other than through a Skype testimony, after the jury was picked, the trial started, and after the double jeopardy attached, so People v Giurdanella is simply a judicial help to the prosecution in a difficult case - and a case of judicial bias, of course.

Had it been a defense witness who could not be produced under identical circumstances, no Skype testimony would have been allowed.

The problem with this case, as I said above, is that it created a bad precedent.

It is the proverbial end of the slippery slope from Maryland v Craig where all of the "prongs" of the Maryland v Craig test was dropped, and now the court will allow:

  • any prosecution witness
  • under any circumstances to testify
  • out of any location
  • using any Internet application, so possibilities for teleprompting for prosecution now abound.

Of course, if the court allows video-testimony by prosecution witnesses, it must now allow video-testimony by defense witnesses, and since video-testimony is allowed in criminal cases, it will be allowed in all cases, so now all attorneys and parties in New York court proceedings will get an opportunity to tele-prompt their witnesses testifying through Skype.

So, not only the Confrontation Clause, with People v Giurdanella, is gone, buried and spat upon its grave, but, in all court cases where video-testimony is allowed, verdicts may be based on tele-prompted testimony.

Apparently, judges in the Appellate Division 1st Department went out to lunch, or to serve on one of their numerous "Boards" or "Committees" while their student interns or law clerks scraped together this decision.

As far as I see, the decision does not have much hope on appeal because of defense counsel's concessions.

Yet, what can be done is a civil rights lawsuit to question constitutionality of Judiciary Law 2-b(3) (the underlying statutory grounds in People v Wrotten, the basis of People v Giurdanella), on grounds of vagueness, overbreadth and arbitrary enforcement.

By the way, under Judiciary Law 2-b(1) (subpoena power of the court), the prosecution should have lost People v Giurdanella anyway, since the witness in Egypt was outside the court's subpoena power.

2-b. General powers of courts of record. A court of record has power

1. to issue a subpoena requiring the attendance of a person found in the state to testify in a cause pending in that court, subject, however, to the limitations prescribed by law with respect to the portion of the state in which the process of the local court of record may be served;

2. to administer an oath to a witness in the exercise of the powers and duties of the court and;

3. to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it.

The New York State Legislature allowed New York State courts to "to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it".

Yet, New York State Legislature could not allow New York State courts to institute "new process and forms of proceedings" in violation of the U.S. Constitution, and that is especially true that in the case of a witness located in Egypt, when the court did not have  subpoena power over that witness, the court could not justify its "new process and forms of proceedings", the out-of-country Skype testimony.

As far as I know, federal courts prohibit Skype participation in court proceedings, even in court-ordered mediation.  A reader of this blog reported to me recently that he had to fly in from another country where he resides to participate in a federal court-ordered mediation.  Skype participation would be a convenient alternative, but was not allowed.  And that was a civil case.

Yet, in New York, in a criminal case, out-of-the-country testimony by Internet is now ok, according to the Appellate Division 1st Department.

Interesting world we are living in...

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