Just like everything else at the start of the pandemic, the U.S. justice system grinded to a halt in an attempt to wait out the storm. Unfortunately, it quickly became apparent that COVID was going to stick around, so the U.S. was forced to resurrect the justice system by turning to a media they recently disfavored in the courtroom: Zoom, Teams, Webex, and other online video services.
Due to the unprecedented nature of the pandemic, the concept of court via Zoom presented questions that courts had little guidance in answering. The last time there was a worldwide pandemic, the internet had not even been imagined yet, let alone video conferencing.
Like every other state, Missouri was in the impossible situation of determining which right of the criminal defendant was more important: the right to a speedy trial or the right to confront witnesses. Courts could stay shut down, but this would leave defendants in jail awaiting trial for extended periods or leave defendants out of jail with a criminal charge looming over their daily lives. Or courts could re-open and use online video conferencing to promote public safety. Almost every court system has decided on the latter.
However, using video conferencing also conflicts with a criminal defendant’s right to “be confronted with the witnesses against him.” Essentially, a defendant has the right to cross-examine the prosecution’s witnesses. But does this include cross-examination solely of witnesses in the courtroom or also at home in front of a computer screen? There are good points on both sides of the argument.
In Favor of Online Confrontation
Those in favor of online confrontation claim the pandemic and public safety are compelling enough interests to allow it, even if it not as effective as in-person confrontation. Further, they claim that allowing a witness to appear online is cheaper since they do not have to travel to court. Similarly, it allows witnesses to appear who would otherwise be unable to, thus promoting justice.
Opposed to Online Confrontation
Those in opposition of online confrontation focus on the nature of video conferencing and how it limits the purpose of cross-examination. The purpose of the Confrontation Clause has shifted away from vetting the reliability of the prosecution’s witness to promoting legitimacy and fairness to the defendant. The opposition claims that allowing a witness to hide behind a computer screen is not fair to the defendant and undermines his confidence in the judicial system. With the witness on a screen, the defendant’s attorney will be unable to discern body language, veiled facial cues, and other nonverbal signs necessary for an effective cross-examination. It seems to be extremely difficult for a judge or jury to determine the credibility of a witness over video only, which is the hallmark of cross-examination and testimony. Further, immaterial factors could affect the juries’ impression of the witness. Factors like lighting, camera angle, audio, and background could all affect how the jury views the witness, whereas these factors would be static in a courtroom setting.
No Clear Answer
Missouri has been forced to weigh criminal defendants’ rights against one another on the scales of justice, and there is no clear answer. With the rollout of vaccines and the effectiveness of wearing masks, it appears this will soon become less of an issue. However, it is important to establish precedent for the future, and the Missouri Supreme Court currently has a case on its docket where it plans to address these issues.
If you are in the Missouri criminal system and need representation, call the office of Adam Woody at 417-720-4800.