Can the prosecution call a witness by Skype video conference?
Table of Contents:
The Quick Answer on Using Video Conferencing
Outside of the special rules that apply to child victims, in order for the prosecution to call a witness by Skype in criminal cases, the prosecution must be able to show exceptional circumstances that warrant a departure from the preference for in-person testimony.
The Detailed Answer on Using Video Conferencing
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” The Supreme Court, the Fifth Circuit, and Texas courts all have a strong preference for live face-to-face testimony. In Maryland v. Craig, the Supreme Court held that the right to confrontation is not absolute, but the requirement of face-to-face confrontation cannot be easily dispensed with. The test adopted by the majority of the courts was stated clearly by the Court: “A defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only 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 Court explained that the Confrontation Clause not only guarantees personal examination, but also “(1) insures that the witness will give his statements under oath—thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth’; [and] (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.”
As set forth in Craig, “only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured” can two-way video conference testimony be permitted, continuing that, “the simple truth is that confrontation through a video monitor is not the same as physical face-to-face confrontation.”
Texas Cases About Witnesses Testimony by Skype
In Texas, there are only a few cases that involve a State witness testifying via two-way video conference. In each case there was an extraneous unalterable circumstance preventing the witness from being able to be present in the courtroom. In the overwhelming majority of the cases the witness was unavailable due to serious medical condition.
In Montague v. State, the court considered the doctor’s recommendations that a pregnant witness with medically diagnosed mental illness should not fly from New York to Texas to testify at the trial. The witness was permitted to testify via two-way video conference.
In Rivera v. State, a critical witness in a murder case was able to testify via two-way video conference because he was on active duty in Iraq. The court explained that the preference for having witnesses testify in the courtroom must give way to the witness’s military obligation.
In Paul v. State, a witness undergoing chemotherapy for Stage IV ovarian cancer was permitted to testify via the computer video conferencing system. The court held that the trial court did not violate the Appellant’s Sixth Amendment rights, because the witness had a serious health situation that was an exceptional circumstance preventing her from testifying in the courtroom.
In Stevens v. State, the physically unavailable witness had been hospitalized within the previous year multiple times for “decompensated congestive heart failure, gastrointestinal bleeding, atrial fibrillation, and vascular disease.” The seventy-five-year-old witness lived in Castle Rock, Colorado and was requested to testify in Cooke County, Texas. A doctor expressed concern that if the witness were to travel, his health would suffer. The doctor requested that the witness be excused from testifying in person, but he could testify via closed-circuit television. The court held that “the trial court did not abuse its discretion by allowing [the witness] to testify via two-way closed circuit television.
In Acevedo v. State, a witness who was 3½ months pregnant with a history of miscarriage explained that if she traveled from Chicago, Illinois to Dallas, Texas, she feared she would lose her baby. Although a doctor did not testify that this was true, the court determined that the witness’s “condition constituted an exceptional circumstance allowing her to testify by webcam without violating appellant’s Sixth Amendment right to confrontation.”
Ultimately, the State will have to show exceptional circumstances to call a witness by skype in criminal cases without the consent of the defense.
 Maryland v. Craig, 497 U.S. 836, 850 (1990).
 Maryland v. Craig, 497 U.S. 836, 845-46 (1990) (quoting California v. Green, 399 U.S. 149, 158 (1970)). Although an Eleventh Circuit case, one of the most frequently cited cases addressing two-way video conferencing is U.S. v. Yates, 438 F.3d 1307 (11th Cir. 2006). The court explained that the issue was “whether the district court’s findings demonstrate that denial of physical face-to-face confrontation was necessary to further an important public policy” and adopted the Craig rule stating it was “the proper test for admissibility of two-way video conference testimony,” and acknowledging that the Sixth, Ninth, and Tenth Circuits have also adopted the Craig rule. In Yates, the reason the Australian witnesses could not testify in Alabama was they were unwilling to travel. The government asserted that the important public policy reasons for allowing them to testify utilizing two-way video conference were “providing the fact-finder with crucial evidence, expeditiously and justly resolving the case, and ensuring that foreign witnesses can so testify.” The Eleventh Circuit held that these concerns were “not the type of public policies that are important enough to outweigh the Defendants’ rights to confront their accusers face-to-face.”
 Id. at 1314.
 Id. at 1315.
 Montague v. State, 03-14-00266-CR, 2016 WL 112378 (Tex. App.—Austin Jan. 6, 2016), petition for discretionary review filed (Feb. 5, 2016)
 This case is unique because there is dispute as to whether the attorney consented to the two-way videoconference, waiving his right to object on 6th Amendment grounds.
 Rivera v. State, 381 S.W.3d 710 (Tex. App.—Beaumont 2012).
 Id. at 713.
 Paul v. State, 419 S.W.3d 446, 459 (Tex. App.—Tyler 2012).
 Id. at 459-60.
 Stevens v. State, 234 S.W.3d 748, 781 (Tex. App.—Fort Worth 2007).
 Id. at 783.
 Acevedo v. State, 05-08-00839-CR, 2009 WL 3353625, at *6 (Tex. App.—Dallas Oct. 20, 2009).
 Id. at *7.