Appearance Required

Appearing in court. None of our clients like it.

But they have to come to court – a lot. Initial appearances. Arraignments. Omnibus hearings. Pre-trial scheduling conferences. Status hearings. Jury instruction conferences. Trial. Change of plea. Sentencing.

Show up or go to jail. Show up or waive your right to a jury trial. Show up or your bond is revoked.  Show up or…

Multiple hearings that require the client to show up. At each hearing the client waits for their case to be called. Court is a cattle call, but nobody is auditioning for anything. Client waits for the case to get called. Brief hearing held, then another hearing set.

At each hearing, the court lectures the client on the importance of being in court. If you don’t show up, the court “will have” to issue a warrant. Waive your right to a jury. Revoke your release.

But waiting at the end of the process is the rare jury trial. Your client has shown up at all her hearings, even the final pretrial conferences that have been continued 3 different times. But this time, her case is going to trial, for sure, for sure.

You’re ready. The prosecution is ready. This is going to happen.

Then the prosecution requests that the complainant appear by video. Or the expert from the crime lab. Or the eyewitness to the incident. The complainant has been advised not to travel. The expert has other cases piling up. The eyewitness moved out of state and it would be hardship to appear. Whatever the reason is, the prosecution wants the witness to appear via video.

And suddenly this criminal jury trial, the gold standard of the American justice system, the one that your client had to show up for on multiple occasions at the peril of losing her liberty, suddenly the appearance of the witness isn’t that important.

Luckily, there is a Constitutional right that addresses the situation, the Sixth Amendment right “to be confronted with the witnesses” against her. In United State v. Carter, the Ninth Circuit recently reversed a conviction where one of the complaining witnesses against a defendant was allowed to appear via two-way video.

The witness was 7 months pregnant. She had been advised not to travel by her doctor, although no verification from the doctor was offered. The Court offered the defense a choice of either traveling to question the witness during the trial or agreeing to the two-way video testimony. The Defense objected to both, but ultimately chose the two-way video testimony.

During her testimony, the complainant had trouble identifying the Defendant over the video feed, because she couldn’t “see that well” on the video monitor and identified the defendant by describing his clothing. She then went about her testimony. Five other complaining witnesses testified and one did not testify at all. Mr. Carter was convicted of 14 counts of and sentenced to 40 years in prison.

In addressing the video testimony, the Ninth Circuit noted that physical confrontation of adverse witnesses serves as “symbol of fairness.” The Court expounded on this notion by pointing out that remote witnesses could be “coached” off camera, since the witnesses point of view, angle, quality of courtroom camera, and the size and quality of the screen affects the perception of both the court and the witness.

The Court reversed Carter’s convictions related to the complainant’s testimony. In doing so, the Court noted that the trial could have been continued to accommodate the complainant or those counts could have been severed. The Court noted that making those decisions on the eve of trial is not ideal, but noted that Carter’s rights could not be abrogated to minimize expense and inconvenience. And that the prosecution had not tried alternatives before dispensing with the right to confrontation.

So, Judges are right, personal appearances in court matter. Criminal cases are important, they affect the most basic rights and liberties, especially our client’s physical freedom.  But it isn’t just our clients. We have to be in court. The prosecutor has to be in court. The jurors have to be in court. And witnesses have to be in court.

Trials are the exception in our system. They take time. They aren’t easy. And they aren’t cheap. But neither is Justice.