We also understand that in this technological age, “confrontation” at some point may take on a meaning that none of us has yet imagined or realized. Despite advances in communication technology, a defendant’s right to a fair trial with all its attendant Constitutional guarantees is our legal and moral obligation to uphold.
Judge Michael P Barnes, Indiana Court of Appeals
Williams v State is one such unpublished opinion from the Indiana Court of Appeals.
The Defendant was convicted of murdering an elementary schoolteacher and sentenced to 95 years in prison. Williams v. State, 2012 Ind. App. Unpub. LEXIS 755 (Ind. Ct. App. 2012).
The Defendant appealed on multiple grounds, including whether the Skype deposition of a crime lab expert violated the Confrontation Clause and was hearsay. The crime lab witness case involvement included handling a doorknob, a key piece of evidence, with a bloodstain on it.
The State requested conducting the video deposition of the witness, because she was unavailable due to retiring and moving out-of-state to care for her “gravely ill and elderly” mother. Williams, at *5-6.
Over the Defendant’s objections, the Skype deposition was held approximately 2.5 months before trial. The witness was deposed with a Marion County deputy prosecutor, a Cuyahoga County, Ohio, deputy prosecutor, and the lead police detective physically present with her. The Judge presided over the deposition in court, with the Defendant, defense attorney, another deputy prosecutor, and IT personnel. Williams, at *6.
The Sixth Amendment requires that “out-of-court testimonial statements by a witness who does not appear at trial are inadmissible unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination.” Williams, at *9, citing Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct. 1354, 1365, 158 L. Ed. 2d 177 (2004).
Indiana Evidence Rule 804(b)(1) states a deposition is admissible hearsay if the deponent is unavailable to testify as a witness at trial. Williams, at *9.
Evidence Rule 804(a) defines witness unavailability. A witness is unavailable if the witness:
(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement; or
(2) Persists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so; or
(3) Testifies to a lack of memory of the subject matter of the declarant’s statement; or
(4) Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or
(5) Is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance by process or other reasonable means.
The Court “believed” that the witness’ “unavailability” pushed the law to “the very edge of the envelope,” because it was not the witness’ physical or mental infirmity that prevented her from testifying at trial, but her mother’s illness. Williams, at *10-11. Moreover, the determination the witness was unavailable was two and a half months before trial. Williams, at *11. Additionally, there was no information if the health condition of the witness’ mother changed in that time. Williams, at *11-12.
Despite the unanswered questions, the Court found that even if the State failed to demonstrate the witness was unavailable, any error was harmless, because the Confrontation Clause “does not require reversal if it can be shown beyond a reasonable doubt that the error did not contribute to the verdict.” Williams, at *12, citing Koenig v. State, 933 N.E.2d 1271, 1273 (Ind. 2010).
The Court explained that the witness’ involvement in the handling the doorknob and bloodstain evidence was “slight” because she “handled the doorknob during the course of the testing process and was involved in the chain of custody of the blood stain swabbed from it, but no more.” Williams, at *13.
Bow Tie Thoughts
Judges and attorneys in their “normal” lives use technology such as Skype to communicate with family members, friends or hold meetings. This everyday use makes adopting remote video deposition technology easier, because attorneys are comfortable using video conferencing technology.
Such an embrace of Skype is a positive thing for cutting costs for travel to remote depositions of secondary witnesses. However, there are always legal issues to consider in using a technology in a way it might not be intended.
While this Court did not outright hold Skype was acceptable for a remote deposition, there are well-established remote deposition companies whose services provide security, reliability and a synced-video transcript. Using such companies could avoid potential notice and procedural requirements in a remote deposition, such as responsibilities of the videographer and oath requirements for swearing in a remote deponent. In short, using one of these companies is a good insurance policy to avoid any procedural challenges to a remote video deposition that otherwise could be overlooked.
Judge Barnes highlighted there could be real Constitutional issues in criminal cases with remote video testimony. I expect whether a remote video deposition being used at trial will be inversely proportional to how important the witness is to the case. If the witness is very important, their reasons for being unavailable must be very compelling for them not to testify in person.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.