Work may move online, but the courts should not in criminal cases

COVID-19 has caused a global health crisis. Schools are closed, supermarkets are depleted, and hospitals are overwhelmed with patients. This new reality of social distancing presents the courts with grave and conflicting imperatives: preserving the rights of people in courthouses while simultaneously protecting their health and safety. How the judiciary balances these competing needs will vary according to short-term necessity, and long-term standards. Courts, however, should not allow new safety measures to impair the confrontation rights of criminal defendants.

In the short term, some commentators have advocated for videoconferencing as the obvious choice to combat the spread of this virus. Schools and businesses have moved online, so it may seem inevitable that courts will adopt similar protocols. Judges can host virtual meetings in their chambers; parties can submit documents online through secure portals; and even settlement conferences can occur via Zoom. Flexibly adopting new procedures can keep the courts running while preventing them from becoming virus hot zones.

Courts already use electronic appearances in some circumstances. California Rule of Court 3.670 gives individual judges wide discretion to permit non-personal appearances in civil cases, and in juvenile cases under Rule 5.9. Additionally, under Rule 4.220 courts can use remote video to hear some traffic infractions.

But the policy reasons for excusing in-person testimony in those arenas are inapplicable to criminal cases, and broadly adopting remote appearances as a rule in the criminal context raises significant constitutional concerns. The confrontation clause in the U.S. Constitution's Sixth Amendment guarantees criminal defendants the right to be confronted in court by hostile witnesses. The confrontation right safeguards defendants and communities by ensuring honest testimony. For the defendant, in-court confrontation forces the witness to "look him in the eye." And face-to-face testimony increases the information available to the fact-finder: observing a witness on the stand permits the jury to assess credibility. Courts disagree whether virtual confrontation fulfills this fundamental protection, but there certainly is no consensus supporting a permanent move to remote testimony.

Contrary to popular belief, the confrontation clause does not require in-person confrontation. In 1990, the U.S. Supreme Court held in Maryland v. Craig that minor survivors of rape and sexual assault are permitted to testify at trial through one-way closed-circuit television. While in-person confrontation is a traditional and reliable form of participation, the court ruled that the Sixth Amendment does not require face-to-face confrontation. The court established a two-step analysis that trial courts must conduct before denying a defendant's physical confrontation right: a trial court must conclude that video testimony is necessary to further an important public policy (like protecting a child abuse victim from further trauma), and the court must ensure that the video testimony is reliable. Congress later codified Craig in 18 U.S. Code Section 3509, which permits child witnesses to testify against criminal defendants in federal court by two-way closed-circuit television or by videotaped deposition.

In practice, however, judicial determinations of important public policies, necessity and reliability have varied significantly. For example, in Crawford v. Washington, the high court dismissed judicial determinations of reliability as "amorphous," because judges inconsistently apply this standard from one jurisdiction to the next. While acknowledging that in-court testimony may have "intangible elements" that are lost by videoconference, in U.S. v. Gigante the 2nd U.S. Circuit Court of Appeals found that a trial court may use two-way videoconferencing in "exceptional circumstances" when doing so is in the "interest of justice."

But other appellate courts have declined to follow Gigante. In U.S. v.Yates, the 11th Circuit held that the government's desire for video testimony to "expeditiously" resolve the case was insufficient to justify diminishing the defendant's confrontation right. And the New Mexico Supreme Court recently held in State v. Thomas that mere inconvenience is insufficient to justify two-way video testimony from a forensic analyst.

Of course, existing confrontation clause cases do not consider the scope of a national emergencies like COVID-19. The vast majority of published cases deal with a single witness testifying remotely, and Craig requires a case-specific inquiry for each "virtual" witness. But making those individual inquiries in each case may be untenable during a crisis.

Widespread virtual confrontation presents a grave risk because it undermines the truth-seeking function of cross-examination and systematic fairness to criminal defendants. Both safeguards are necessary, even during a national emergency. To prevent this crisis from permanently eroding in-court confrontation and to ensure uniformity, the courts need an authoritative list of important public policies that justify the use of video testimony.

That list should be codified in a statute. Legislatures are democratic bodies that will deliberate publicly and be influenced by constituents on the merits of any specific policy's inclusion in this list, which can be revised by later statute. Courts can -- and should -- serve as a bulwark against a potentially excessive list of rationales.

A national emergency from a pandemic like COVID-19 may be one such rationale, because courts risk spreading contagion by mandating physical appearances in courtrooms. This narrow list should exclude justifications based on cost. Constitutional rights are not for sale, and economic efficiency arguments alone cannot overcome constitutional liberty guarantees.

Just as the Sixth Amendment guarantees the right to confrontation, it also ensures the right to a speedy trial. A rigid insistence on in-person confrontation may delay the defendant's trial to ensure public safety. This compromise may be acceptable when the defendant is granted bail, but elongated pre-trial detention could trigger habeas corpus protections. Prosecutors and courts should grant bail liberally during this crisis, both to limit the use of virtual confrontation and also to prevent the spread of COVID-19.

The late Supreme Court Justice Antonin Scalia observed that "virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones." As courts shift more of their business online, policymakers must work to regulate trial-by-video to ensure that the courts can balance functionality with individual liberty. 