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).

Privacy, Technology, and the Fourth Amendment: "The Fourth Amendment in the Digital Age" Master Post

The following blog post contains all of the guest posts that the Criminal Law Practitioner published in anticipation of "The Fourth Amendment in the Digital Age" symposium.

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Surveillance, Grown Up: Broader and Deeper than Eavesdropping of Yore

The revelations of mass global surveillance in recent years by the United States and its global partners have exposed a dramatic shift in how law enforcement and intelligence agencies conduct and justify surveillance activities.  Modern surveillance has gone from passive capture of signals to active interference with devices, systems, networks, and communications; from targeted scrutiny of individuals to surveillance of millions in bulk; from examining basic communications content and metadata to fundamentally intrusive analytical techniques.  All of these changes are occurring over a backdrop of rapid changes in communications technologies and services that have rendered legal distinctions between foreign and domestic communications artificial and unworkable.

Uncovering Secret Surveillance

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It’s hard to read the newspaper these days without coming across an article describing yet another powerful government surveillance tool, often one that has been used for years without being disclosed to the public.  The most striking recent example is the use of stingray surveillance devices by local law enforcement around the country.  The secrecy has been so thick in part because the FBI requires law enforcement agencies to sign non-disclosure agreements before acquiring stingrays.  In this sort of environment, what’s a diligent criminal defense attorney to do?

Of Drones, Phones and Privacy Zones

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Back when I started in the privacy advocacy community -- about 20 years ago, at the ACLU -- we used to talk about the incredible shrinking Fourth Amendment.  It was a riff on the Lilly Tomlin movie – The Incredible Shrinking Woman.  In the movie, Tomlin’s character shrank because she was exposed to an experimental perfume.  The question we face today is whether the zone of privacy protected by the Fourth Amendment will shrink on account of our use of technology.

Surveillance, Grown Up: Broader and Deeper than Eavesdropping of Yore

View image | gettyimages.com

The revelations of mass global surveillance in recent years by the United States and its global partners have exposed a dramatic shift in how law enforcement and intelligence agencies conduct and justify surveillance activities.  Modern surveillance has gone from passive capture of signals to active interference with devices, systems, networks, and communications; from targeted scrutiny of individuals to surveillance of millions in bulk; from examining basic communications content and metadata to fundamentally intrusive analytical techniques.  All of these changes are occurring over a backdrop of rapid changes in communications technologies and services that have rendered legal distinctions between foreign and domestic communications artificial and unworkable.

Criminal Trials and PowerPoint: The Importance of Juror Engagement

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One huge hurdle that litigators encounter during trials is not only meeting their burden of proof to prevail, but also keeping the jury engaged.  A jury trial, especially in more serious or complex matters is not the three minute clip that you see on television or in the movies. Trials can be long, often extending over months, depending on the matter at hand.  Throughout that time, we have a jury box of humans who are taking in all of this information and then tasked with deliberating to render a verdict.  I specifically point to the jurors as humans, because as humans we have shifting attention spans.  This is why it is extremely important to put on compelling and engaging presentations to the jury.  In the criminal context, it can be very powerful to display demonstrative evidence in a memorable manner.

No Such Thing as Behind Closed Doors: How Technology Has Outdated the Third-Party Doctrine

Most people would agree with the assertion that if you want to keep something private, then you just shouldn’t tell anyone! And that is just the rule that the Supreme Court developed in Katz v. United States when it contemplated matters that are not considered “private,” in regards to the Fourth Amendment. The Court stated that “what a person knowingly exposes to the public . . . . is not a subject of Fourth Amendment protection.” A little over a decade later, the Court expanded this notion in Smith v. Maryland to create the third-party doctrine, which states that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” The idea behind the doctrine is that citizens should take steps to protect their privacy or to preserve their secrets; and if a citizen puts their personal information out to another party (usually a business with the third-party doctrine), then that information is obviously not private—and more importantly, it is not protected under the Fourth Amendment from government intrusion.

3D Gun Printing: The End of Gun Control in the United States?

The recent shootings at the University of California, Santa Barbara and in Las Vegas have brought about the age-old question of gun control in the United States.  While the Second Amendment of the United States Constitution has its supporters and critics, the federal government has enacted regulations intent on securing the safety of society by requiring citizens who purchase firearms to register them and hold the necessary licensure.  However, recent events are changing how we obtain weapons.  What if citizens did not need a license to purchase a firearm at a store, but could instead acquire them with just a computer, a block of plastic, and a 3D printer?