Confronting Confrontation in a Facetime Generation: A Substantial Public Policy Standard to Determine the Constitutionality of Two-Way Live Video Testimony in Criminal Trials

This Comment addresses whether two-way live video testimony in criminal trials violates the Confrontation Clause of the Sixth Amendment, which ensures that “[i]n all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him.” The Supreme Court in Maryland v. Craig upheld one-way live video testimony in the context of child abuse cases to protect child victims from the presence of the defendant, based on the extremely “important public policy” of protecting child abuse victims from further traumatization. But courts and scholars have disagreed about whether and how to apply Craig to two-way live video testimony in contexts other than child abuse cases where there is no similarly important public policy. The Court’s subsequent upheaval of Confrontation Clause jurisprudence in Crawford v. Washington especially complicates these disagreements because it rejected the concept of “reliability” that undergirded the Craig decision. Additionally, the Court’s Confrontation Clause decisions following Crawford have obscured the extent of Crawford’s holding, insomuch that scholars have described the decisions as “‘vague[], uncertain, unpredictable, a mess, almost arbitrary, incoherent, and an exercise in fiction.” Amidst this unrest, prosecutors continue to use two-way live video testimony and defendants continue to challenge such use. As the popularity of such testimony grows, and the technological ease of using it increases, it is increasingly important to develop a workable and doctrinally sound constitutional standard for two-way live video testimony.This Comment argues that the Supreme Court should adopt a substantial public policy standard to determine the constitutionality of two-way live video testimony. This proposal primarily emphasizes that two-way video requires witnesses to do something that one-way video, such as the system used in Craig, does not require: it requires witnesses to see the defendant and testify to the defendant’s face. Because of two-way video’s better approximation of true physical confrontation, this proposal lowers the bar that prosecutors must meet to use two-way live video testimony by replacing Craig’s important public policy test with a substantial public policy standard. This standard would allow prosecutors to use two-way live video testimony in cases where the use of such testimony would advance public policies that, although not as extremely important as protecting child abuse victims, are substantial enough to further the administration of justice. The substantial public policy standard would be doctrinally sound, reasoning a fortiori from Craig. Moreover, the standard would be workable in practice, utilizing as guideposts lower courts’ decisions to provide a framework for determining the circumstances in which two-way live video testimony is constitutional under the Confrontation Clause. In an era where astounding technological advances are commonplace, two-way live video will only become faster, better, and easier. The proposed substantial public policy standard embraces this reality and embodies a pragmatic solution — a solution for confrontation in a FaceTime generation.