In March 2021, a year into the coronavirus pandemic, a key witness in a federal criminal case in New York was allowed to testify remotely from his lawyer’s office in California. The cross-examination was marred by technical glitches and the stilted awkwardness familiar in Zoom calls. The testimony helped convict two defendants of bank fraud. They are asking the Supreme Court to decide whether the remote testimony ran afoul of the Sixth Amendment, which guarantees a criminal defendant the right “to be confronted with the witnesses against him.” The pandemic has made videoconferencing commonplace, and many people remain wary of large gatherings. Stanford law Prof. Jeffrey Fisher said courts should be cautious, reports the New York Times. “COVID has taught us two lessons,” he said. “One lesson is that Zoom is a very good piece of technology that can save lots of time and expense.. But coming out of COVID has also taught us that Zoom is not a substitute for in-person interactions. If we think about all the people we’ve met during the COVID era and then finally meet face to face a year or two later, there are all kinds of things you notice and appreciate for the first time, even if you’ve had all these interactions over Zoom. That’s a powerful lesson, too.”
Justice Antonin Scalia, who reinvigorated the Supreme Court’s commitment to the confrontation clause, was deeply skeptical of remote testimony. “A purpose of the confrontation clause is ordinarily to compel accusers to make their accusations in the defendant’s presence — which is not equivalent to making them in a room that contains a television set beaming electrons that portray the defendant’s image,” he wrote in 2002 when the court rejected a proposed amendment to the Federal Rules of Criminal Procedure that would have made it easier for judges to allow remote testimony. The technology has improved in the intervening decades, and the pandemic gave the question more urgency. Lawyers for the defendants, Hamid Akhavan and Ruben Weigand, argued that the constitutional principle remained constant. “There is no Zoom exception to the confrontation clause,” they wrote. The case concerned credit card transactions for marijuana dispensaries.
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