Modern Technology, Remote Witness Testimony, the Confrontation Clause of the Sixth Amendment, and Florida Criminal Trials

Modern technology has touched all areas of life. Things that would have been impossible 50 years ago are common today. Even with the application of modern technology, all the rights and privileges established by the constitution remain in place. A prosecutor inevitably doesn’t want to lose a child witness’s testimony due to the child’s fear or lose an ill person’s testimony because poor health prevented their travel. However, the Constitution still requires that a criminal defendant be confronted by the witnesses against him. That’s true whether the witness is 10 feet away in the courtroom or thousands of miles away on a video feed. Ensuring that all your rights — including the Sixth Amendment’s Confrontation Clause rights — are protected is an essential part of any criminal defense, and is just one area among the many where it pays to have a skilled Tampa Bay criminal defense attorney on your side.

Earlier this month, the Florida Supreme Court issued a very important ruling in a case involving these issues of modern technology and constitutional rights.

The underlying crime was the double murder of a couple who lived together just north of Fort Lauderdale. The prosecution’s star witness was the accused man’s mother. The state wanted her to testify about the suspect’s allegedly having taken the couple’s credit cards and SUV, driven to the mother’s home in the stolen vehicle, disposed of certain pieces of evidence while there, and ultimately dumped the stolen vehicle at a Walmart store near the mother’s home.

The prosecution had a problem, though. The trial was in Broward County, while the mother was 200+ miles away in Polk County. The mother was unable to travel to South Florida due to her poor health. Based on the mother’s health problems, the trial judge OKed a prosecution request to do what’s called “perpetuate the testimony” of the mother.

Three months before the trial occurred, the defendant, his attorney, the prosecutor, and the judge met in a Broward County courtroom. At the same time, the mother was at a site in Polk County. “The two locations were connected remotely by audiovisual equipment,” according to the court. The equipment recorded the mother’s testimony, and the prosecution played that video for the jury at the trial.

What the Rules Require of Remote Testimony

The Florida rules governing criminal procedure generally allow for this kind of perpetuated testimony. To get court approval to perpetuate testimony, the requesting party must show that the witness “resides beyond the territorial jurisdiction of the court or may be unable to attend or be prevented from attending a trial or hearing” and the testimony “is material, and that it is necessary… to prevent a failure of justice.”

The Supreme Court agreed that the trial judge’s decision to allow the perpetuated testimony was OK, as the state established both of these criteria. Rather, it was how the testimony was perpetuated that was the basis of the defense’s successful appeal.

If the prosecution is the party that requested perpetuated testimony, the defendant is to be kept “in the presence of the witness during the examination.” Florida law is clear that “in the presence” means the witness must be able to see the defendant.┬áThat was the problem for this prosecution, as the evidence was undisputed that the mother could not see her son when she was giving her recorded testimony that day. In fact, the mother testified to that fact on the record.

One of the keys undergirding the Florida rule about perpetuated testimony is the Sixth Amendment to the Constitution’s guaranteeing a criminal defendant’s ability to be confronted by the witnesses against him, which is known as the “Confrontation Clause.” When the Florida rules demand that the defendant be “in the presence” of the witness, that demand is rooted in the Confrontation Clause.

Because the mother didn’t see the defendant, the rule was violated, the defendant’s Sixth Amendment rights were violated, and that error was not a harmless one, according to the court. That meant that the defendant was entitled to a reversal of his conviction and a new trial.

While the Bill of Rights lists only a specific number of rights that apply to criminal suspects, criminal defendants, and convicts, that limited array of rights has spawned a larger number of laws and rules that flesh out those rights. To make sure all of your constitutional rights are protected throughout the criminal process, look to the powerful and experienced Tampa Bay criminal defense attorneys at Blake & Dorsten P.A. Call us today at (727) 286-6141 to schedule your FREE initial consultation and find out how we can help you.

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