The Missouri Supreme Court is reviewing an appeal from the Circuit Court of Jackson County in which an appellant alleges virtual adjudication denied him the right to confront witnesses.
Jackson County Judge Jalilah Otto denied objections to virtual proceedings by the appellant in C.A.R.A. v Juvenile Officer in the interest of public policy in combatting the spread of COVID-19, according to the Juvenile Officer’s Sept. 21 respondent brief.
“The use of two-way videoconferencing was sufficient to assure the protection of C.A.R.A’s constitutional rights,” wrote attorney Bree Sturner on behalf of the juvenile officer who responded to C.A.R.A's appeal.
However, C.A.R.A.’s attorney Jeff Esparza argued that allowing witnesses to testify by video denied his client’s right to due process, equal protection, and to confront and cross-examine witnesses against him.
“Remote hearings aren't an issue here,” Esparza told the St. Louis Record. “It is the actual trial, which is whether somebody is found to be guilty or not. It's not just scheduling something or talking about rules of evidence or anything like that. This is actual witnesses testifying against you.”
C.A.R.A is accused of statutory sodomy in the first degree, domestic assault in the third degree, and property damage in the second degree.
At issue is the confrontation clause of the Sixth Amendment of the U.S. Constitution, which provides for the right of criminal defendants to know who their accusers are as well as the details of the accusations and evidence.
“Generally, there's something ineffable about looking somebody in the eye,” Esparza said. “When you say something mean about them, or you say that they did something wrong, there's that ineffable solemn quality of having to tell the truth under oath inside a courtroom looking at everybody else in the face instead of at a computer monitor.”
Missouri Supreme Court justices heard oral arguments in a similar case on Sept. 15 in which 14 law professors nationwide submitted a friend of the court brief because they are concerned about the ramifications of remote hearings
In State v. Smith, defendant Rodney A. Smith is charged with having sex with his girlfriend’s teenaged daughter, however 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.
Attorneys in the amicus brief argue that testimony taken via video conferencing absent a strong showing of necessity violates the Sixth Amendment’s confrontation clause.
In C.A.R.A.’s case, witnesses appeared by webex.
“The procedure utilized by the Court preserved almost all of the elements of the Confrontation Clause. C.A.R.A. had the opportunity to cross-examine all of the witnesses who appeared by webex, the witnesses were under oath and the fact-finder, as well as all other parties, could observe the witnesses' testimony and demeanor in real-time,” Sturner wrote on behalf of the juvenile officer.
“It is significant to note that at the time of the trial, no vaccines were yet available to the general public as trials were still being conducted. The confrontation clause is not absolute. The unprecedented and deadly, global COVID-19 pandemic necessitated proceeding in a hybrid fashion.”