The outcome of a rape case pending at the Missouri Supreme Court could render the use of Zoom testimony unconstitutional, according to a Saint Louis University School of Law professor who submitted an amicus brief.
“If a video is played in a courtroom, there are logistical problems about how the video is to be displayed to the jury and to the defendant, as well as to the judge,” attorney and professor Chad Flanders wrote in the 27-page pleading. “Poor video quality may make it hard for jurors to see and assess the demeanor of a witness; delays and dropped calls can change the rhythm of cross-examination.”
Flanders, who co-wrote the brief with attorney Michael Durham, was among eight Saint Louis University School of Law professors and 14 law professors nationwide who submitted a ‘friend of the court’ brief because they are concerned about the ramifications of the decision.
“If the Missouri Supreme Court says this is fine, there's no problem, and it's just as good to watch your witness on a TV screen as it is if the witness comes to you in court, that could be fairly significant,” Flanders told St. Louis Record. “That could mean the court is giving permission to a lot of lower courts to save money and save time because it’s convenient to have virtual trials but our brief says that would not only be a bad idea but also unconstitutional.”
Missouri Supreme Court justices held oral arguments on Sept. 15
“The judges were extremely engaged,” Flanders said. “They asked very good questions about the practical effects and they were very interested in what difference it makes if it’s a two-way video rather than one way and what's so special about the person being in court.”
Flanders’ amicus brief is in support of the accused Rodney A. Smith. Although charged with having sex with his girlfriend’s teenaged daughter, Smith never had the opportunity to confront the lab technician whose remote testimony at trial connected swabs of Smith’s DNA found in the sexual assault examination, according to media reports.
“The Sixth Amendment is about a defendant’s right to confront their witnesses and so there's always this question about what it really means,” Flanders said. “There's been a long line of important Supreme Court cases that put an emphasis on being able to look your accuser in the eye face-to-face.”
The Sixth Amendment of the U.S. Constitution provides for the right of criminal defendants to know who their accusers are as well as the details of the accusations and evidence.
“This case is interesting because it involves Zoom testimony before COVID-19 but the issue is much more salient now given COVID-19,” Flanders said. “First, courthouses shut down and then re-opened only with Zoom hearings.”
Flander’s May 25 amicus brief claims that the DNA technician Eric Hall was unable to appear in court to testify in the case against Smith because Hall was on leave during the trial dates.
“Testimony taken via Zoom, absent a strong showing of necessity, violates the confrontation clause,” Flanders added