Skype and the Right to Confrontation

On February 23, 2015, the petition for certiorari was denied in the case of New Mexico v. Schwartz.  What the Court failed to realize by denying this petition, is that defendants all over the nation will not get the full protection the United States Constitution requires.  As technological advances increase, our use of technology in the courtroom increases as well.  From computer monitors to email to video testimony, technology has a significant impact on the way cases are handled in the courtroom.  The ease of technology, as well as its accessibility, makes it an ever-growing issue when applied the Constitution – issues the Framers never could have imagined.[1]  In New Mexico v. Schwartz, the defendant argues that by allowing four witnesses to testify via Skype, his 6^th Amendment confrontation clause rights were violated.

In this case, Martha McEachin moved from Los Angeles to Albuquerque in March 2008. She had only been living with the defendant for a month and a half when she went missing.  In May 2008, a decomposed body was found wrapped in an air mattress with sheets in an alley about 500 feet from the Defendant’s apartment.  A two-year investigation ensued and the defendant was charged with McEachin’s murder.

At the trial, four of the State’s witnesses testified using Skype.  The defendant argues that this use of video testimony violated his 6^th Amendment rights.  The Confrontation Clause states that in a criminal prosecution the defendant has the right to be confronted with the witnesses against him.  The defendant argues that video testimony via Skype does not satisfy this right.  The lower court explains that the right the Confrontation Clause gives is a guaranteed face-to-face meeting with the witnesses who are appearing before the jury.  There may be exceptions to this right; however, they must be narrowly tailored to include situations that are necessary to further an important public policy.  Without a particularized showing of necessity, the right of confrontation stands.  The court goes on to explain that mere inconvenience for a witness is not sufficient grounds to violate this face-to-face right.  The court believes that the state did not show necessity for the use of video testimony, and therefore reversed the defendant’s conviction.

The outcome of this case, however, was not ideal.  If this case had made it to the Supreme Court, the question of how to determine when video testimony via Skype is appropriate would have been determined.  Practitioners and judges are now left with an open-ended question of when this type of testimony does or does not violate the Confrontation Clause.  While an argument can be made for either side, concrete criteria to protect defendants should be implemented.  With the fast rate of growing technological advances, this is not the last time the Supreme Court will be presented with this particular issue.  Right now the best a judge can do is balance the interest of the State with the rights of the defendant.  It seems this is a losing battle either way.

Kelsey Edenzon
Staffer, Criminal Law Practitioner

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[1] Jamie Walker and Laura Carlsen, “Can I Testify via Skype?” Using Videoconferencing Technology to Enhance Remote Witness Testimony, NWSidebar (June 11, 2014).