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

---

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

Ohio v. Clark

The Supreme Court will hear oral arguments in Ohio v. Clark on March 2, 2015.

Issues:

Whether an individual’s obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and whether a child’s out-of-court statements to a teacher in response to a teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause

From Criminal to Star Witness – The Paradox of Cooperating Witnesses in White Collar Cases

Frank DiPascali Mug Shot

Despite Bernie Madoff’s claim that he alone perpetrated the roughly seventeen billion dollar ponzi scheme, the government has pursued charges against a number of other individuals.  After a five-year investigation, at the heart of the prosecution’s case is a cooperating witness.  In August 2009, Frank DiPascali, Madoff's former Chief Financial Officer, pled guilty to ten counts of fraud, conspiracy, and other charges, and admitted to the court, “I helped Bernie Madoff and other people carry out a fraud."  In the ongoing case that began in October against five former employees of Madoff’s financial firm, DiPascali is expected to testify and provide key evidence in hope of reducing the length of the prison sentence he will likely receive. 

Because conspiracies are secret by their nature, prosecutors often rely on cooperating witnesses to prove these cases.   A cooperating witness is a person who participated in the crime and is willing to assist the investigation and/or testify about the roles played by the co-conspirators.  Usually a witness cooperates in hope of mitigating the severity of the punishment the witness faces for his own involvement in the criminal activity.  These cooperation agreements are typically included within a plea agreement and require the witness to admit his criminal conduct, plead guilty, and agree to assist the government in its investigation and prosecution of other individuals.  If the government deems the assistance “substantial,” it will file what is known as a §5K1.1 motion and request that the court depart downward from the recommended guidelines sentencing range for the cooperating witness.  In turn, this reduces the witness’s likely punishment.

The government’s use of cooperating witnesses such as DiPascali has raised concerns in recent years about jurors’ overreliance on cooperating witness testimony and the justice system’s inability to balance out that effect.  Neuschatz et al. (2008) conducted one of the first psychological studies regarding the effect of informant and cooperating witness testimony on juror decision making.  In that study, participants acting as jurors read trial transcripts that included testimony from an accomplice who allegedly acquired information through involvement in the alleged crime.[1]  The experimenters manipulated whether the jurors also learned that the cooperating witness received sentencing incentives in exchange for his/her testimony.  The participants were then asked questions regarding whether they would convict the defendant, and to what they attributed the witness’s motivation for coming forward.  The results indicated that information about the cooperating witness’ incentive (e.g., leniency or reward) did not affect participants’ verdict decisions.  With regard to the witness’s motivation for testifying, the experimenters noted that the participants overwhelmingly committed what is known as the fundamental attribution error – they ignored the contextual and situation factors (i.e., receiving leniency) and instead attributed the witness’s motivation to dispositional factors (i.e., the witness wanted to “do the right thing”).  Essentially, the jurors accepted the witness’s testimony without considering the witness’s motive or inducement to fabricate.

Beyond the limited social psychology research on the topic, many other concerns about cooperating witness testimony have emerged.  For instance, some surmise that, because cooperating witnesses in white collar criminal prosecutions are less likely to have extensive criminal backgrounds and appear sophisticated and presentable, jurors may be more likely to believe them than the typical jailhouse “snitch.”[2]  Many have also noted the “cooperation paradox” as a sign of the unfairness of the use of cooperating witnesses: those who are the most culpable, have the most information about the criminal activity, and face the greatest penalties are the ones most likely to be offered cooperation deals to testify against low-level individuals.[3]

Defendants have also been somewhat restricted by the courts in their ability to attack cooperating witness testimony.  In Daubert v. Merrill Dow Pharmaceuticals Inc., the Supreme Court noted at least three safeguards the accused has to discredit unreliable testimony: (i) cross examination, (ii) presentation of contrary evidence, such as that provided by expert witnesses, and (iii) judicial instructions to the jury.  However, the Fifth Circuit recently affirmed the district court’s refusal to allow defense counsel to cross examine a cooperating witness regarding the witness’s actual exposure under the Federal Sentencing Guidelines.  The Fifth Circuit held that these limitations did not violate the Confrontation Clause.  Additionally, the Fourth Circuit held that understanding the ramifications a cooperating witness’s plea agreement, and thus the witness's motivations, did not require expert testimony.  Rather, this was a matter of “common sense” and one that the jury could decide for itself without the aid of expert testimony.

This is not to say that the government’s use of cooperating witness testimony is completely without safeguards.  Prosecutors have a constitutional duty to disclose any incentives offered to cooperating witnesses in addition to strict ethical guidelines to disclose information regarding cooperation agreements.  Courts have also adopted cautionary jury instructions regarding how much weight the jury should give to cooperators’ testimony.  Ultimately, perhaps the best safeguard is a skillful cross examination.  Richard Bistrong, who in 2007 cooperated with the FBI and Department of Justice and testified against others in a criminal Foreign Corrupt Practices Act case, endured three weeks of cross examination by six separate defense attorneys.  Afterward, he explained that “[i]t was difficult and there was nothing that could have prepared me for what I endured on the stand over that period of time.”

Kyle O'Grady

Senior Editor, Criminal Law Practitioner

Image by United States Marshals Service [Public domain], via Wikimedia Commons.

---

[1]Control groups in the study were not exposed to testimony from the cooperating witness.

[2]Ellen S. Podgor, White-Collar Cooperators: The Government in Employer-Employee Relationships, 23 Cardozo L. Rev. 795, 802-803 (2002).

[3]See, e.g., id. at 799; Stephen J. Schulhofer, Rethinking Mandatory Minimums, 28 Wake Forest L. Rev. 199, 212 (1993).

Quality Control in an Era of Confrontation

The Sixth Amendment of the United States Constitution provides that “[i]n all criminal prosecutions” the accused shall “be confronted with witnesses against him.”[1]  As with all reserved rights, the question arises as to what degree and in what context a defendant may exercise this and other rights.  The United States Supreme Court declared between two cases – Bullcoming v. New Mexico[2] and Melendez-Diaz v. Massachusetts[3]– that “testimonial” evidence includes a sworn report submitted by a lab technician describing the results of laboratory drug tests.[4]  Applying this standard excludes a laboratory report submission under hearsay when a witness is unavailable and the defendant has not had a prior opportunity to cross-examine.  Therefore, a laboratory report prepared in anticipation for prosecuting a defendant requires the prosecution to produce the lab technician who performed the tests for cross-examination.  A certified report from a laboratory will not suffice to secure its admission at trial.

With the requirement that a lab technician testify in court to the results they generated, it creates an opportunity to vet the quality control mechanisms and techniques used by laboratories.  This issue is particularly salient owing to the consequence of recent problems with state drug labs.  In Massachusetts, where Melendez-Diaz initiated, the State recently indicted Annie Dookhan, a former state chemist, for allegedly falsifying drug lab results, using improper laboratory methods, and concealing exculpatory information.[5]  Several convictions have been overturned as a consequence.  Massachusetts believes as many as 40,000 drug and related cases may have been implicated by her actions.  And in the late 1990’s, prosecutors in Prince George’s County, Maryland opted to drop drug cases when it was ordered to turn over detailed information about its testing protocols and then later had to shut down its drug lab for a period of time following evidence of a pattern of poor quality control and mismanagement.[6]

The zealous criminal defense attorney must be aware of the shortcomings represented by a state’s selected technique.  In certain instances, the probative value of certain drug tests may be outweighed by inherent error rates presented to a point that no judge could render a judgment on its merits.  For instance, with respect to urinalysis, there have been situations where two opposite results have been produced for a court by the same citizen on the same day.[7]  This represents a situation with no indication of human error or malice, even though such could occur in other situations.  This is why criminal defense attorneys must understand the whole picture of events and circumstances that may influence laboratory results.  This includes, among other things, the following:

·      Collection of Evidence

The results of field samples may be insufficient or spoiled on account of the size, collection, storage, or transport.  All steps in that process represent a means to damage or spoliate a sample depending upon the type of drug.

·      Chain-of-Custody

A busy crime lab shares all the same challenges as with any overburdened organization.  There is the chance owing to human error that a sample collected is not that which is ultimately tested.  Or a sample got mixed with another sample.  Or the evidence was never actually near the crime scene during the alleged period of time during the crime.  These are the possibilities created by poor chains of custody that can be overlooked without aggressive review of evidence custody.

·      Procedures for Subsampling

In drug cases, a lab technician may conduct an analysis on a portion of a larger sample.  When the quantity of drugs seized increases the sentence imposed, it requires the prosecution to show beyond a reasonable doubt that the larger quantity is in fact contraband.  In a scientific process such as drug testing, the sufficiency of a sample does not necessarily represent a proof.  This is especially true when a laboratory employs deficient techniques that undermine the results of the sample used.  In either case a risk exists that a criminal defense attorney should raise at trial to undermine a technician’s credibility or through a pretrial motion seek to suppress its admission until sufficient tests are conducted.

·      Human Bias and Standards

First, the results of a test may require subjective interpretation and lead to confirmation bias or misinterpretation.  For instance, often when cocaine is tested a sample is run through a gas chromatography-mass spectrometry machine that produces a spectrum that requires subjective judgment as to the results.  The machine does not provide a yes or no answer.  Instead, it must be compared against a scientific standard that is identifiable and repeatable.  A statement from a technician that they are relying on their observational judgment that is informed by experience is insufficient.  In short, do not let judgments based on intuition go without being cross-examined.

Second, when a lab technician claims to have applied proper scientific standards, it represents an opportunity for the criminal defense attorney to vet the technician’s knowledge of the process used, best practices for that technique, and developments of alternative standards that could be more accurate.  In many laboratory testing techniques, the slightest deviation in protocol and methods, such as setting the temperature of a machine a few degrees lower, may be outcome determinative as to whether accurately determining if a substance is what it is claimed.  If the technician cannot explain what the protocols he or she employed or defend its accuracy, then it calls into question the veracity of results generally and admissibility of the technician’s testimony.

The emerging use of the confrontation clause represents an opportunity to hold prosecutors to their burden.  It is easy and in part natural to assume that laboratory techniques applied are valid and conducted by experts.  Nonetheless, the standards applied in drug and forensic cases are subject to a range of quality control problems that are technical and human in quality.  It is for these reasons criminal defense attorneys must be aware of the underlying scientific strengths and weaknesses presented to fully use the confrontation clause.

Joe Hernandez

Executive Editor, Criminal Law Practitioner

---

[1]U.S. Const. amend. VI.

[2]131 S. Ct. 2705 (2011).

[3]557 U.S. 305 (2009).

[4] See also Crawford v. United States, 541 U.S. 36 (2004) (holding that “testimonial” evidence occurs when a statement will or is expected to be used in a prosecution).

[5]David Abel, John Ellement, & Martin Finucane, Annie Dookhan, Alleged Rogue State Chemist, may have affected 40,323 People’s cases, review finds, Boston Globe, Aug. 20, 2001, at Metro Desk, available at http://www.boston.com/metrodesk/2013/08/20/annie-dookhan-alleged-rogue-state-chemist-may-have-affected-more-than-people-cases-review-finds/asc53OgqHcQFEik4MLRpgI/story.html.

[6]Ruben Castaneda, Drug Case Dropped After Ruling on Lab, Wash. Post, Nov. 23, 1999, at B1.

[7] Graham v. Wilson, No. CAL12-17694 (Md. Cir. Ct. 2012).