Witness Testimony

Can a Witness Testify Against Me by Skype?

This may have been a strange question a decade or so ago.  But in this day of smartphones and tablets in the hands of nearly everyone, it actually poses an interesting question.  It is interesting because of the Confrontation Clause of the Sixth Amendment which guarantees you the right to “confront” a witness testifying against you.  But what does that actually mean?

The Guarantees of the Sixth Amendment

The Sixth Amendment to the United States Constitution, commonly referred to as the Confrontation Clause, states that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”  The term “confronted” can be a little vague when you start asking whether the person has to be confronted in person.  Many state courts demonstrate a preference for live face-to-face testimony. But this issue is not entirely black and white.  Consider the exceptions made for child victims, for instance, who are allowed to testify via closed-circuit video in order to spare them the stress of testifying in the courtroom with the accused.

There must be exceptional circumstances

Most courts are of the opinion that the right to confrontation provided by the Sixth Amendment is not absolute.  However, the requirement of face-to-face testimony cannot be easily overcome.  Instead, the prosecution must be able to show exceptional circumstances that warrant a departure from in-person testimony.  The most widely recognized exception if where “denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.”

The requirements of the Confrontation Clause

The Confrontation Clause not only guarantees examination of the witness, but it also includes other requirements, including:

  • that the witness statements are given under oath
  • that the witness submits to cross-examination
  • that the jury can observe the demeanor of the witness in order to assess credibility

Regardless, courts pretty much agree that confrontation through a video monitor is not the same as physical face-to-face confrontation.

If you have questions regarding any criminal defense matters, please contact Ketcham Law by calling us at (205) 296-4233.



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