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“ZOOMING” Through The 6th Amendment

by | Nov 13, 2021 | Rules Of Evidence

Spinks v. State & The Challenges Of Cross-examination Through A Video Screen

By Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.

            As the courts and litigants have become more familiar with remotely conducting court proceedings, reliance on remote technology, such as Skype, Zoom, WebEx and Teams, has become more common and the litigants and the courts have become more adept at utilizing such technology as a matter of convenience and economy.   As trial lawyers, the time saving that accompanies being able to remotely conduct proceedings, such as status hearings, without having to spend an hour or two traveling to and from the courthouse, has been one of the few benefits of living through pandemic times.  When a client is being charged on an hourly basis, remotely conducting preliminary types of proceedings also saves the client from incurring significant costs just for our travel and waiting time.  However, there are instances where convenience and economy of time do not provide an adequate substitute for in-person proceedings and for the right of a party to confront, in-person, an accuser.   The Court of Special Appeals (“COSA”) in Spinks v. State, —A3d.—, WL 4451981 (2021), teaches us that the right to confront a witness in-person is not absolute, while at the same time, emphasizes that permitting an alternative to such in-person confrontation is not justified by mere considerations of convenience and economy.

In Spinks the sole question presented was whether the trial court violated Spinks’ Sixth Amendment right to confront his accuser by allowing Oumar Sanoh, the victim of an armed robbery, to testify via Skype. COSA concluded that the trial court did not err in admitting the Skype testimony and affirmed Spinks’ conviction.

The Spinks opinion is instructive as to how a trial court should evaluate the sufficiency of the reasons for proceeding remotely, and the opinion provides an example of how detailed fact finding by the trial court can support the granting of a party’s request to have a witness appear remotely.

As this article reviews the Spinks opinion, it is important to remember that convenience and economy are explicitly rejected as reasons to proceed remotely.   Findings of necessity and reliability of the remote technology were made by the trial court in Spinks and the trial court concluded that, while cross-examination was being done remotely in Spinks’ trial, the right of confrontation was sufficiently protected to justify proceeding remotely.   It is also significant that the trial court found that the testimony of Sanoah was, in large measure, not disputed, leaving open the question as to how the trial court might have ruled had the witness’ testimony been more substantial and more contested.

As the Spinks trial approached, Sanoh had been served with a subpoena, however, before the trial, Sanoh was notified that his mother, who lived in Guinea, had been hospitalized for a medical emergency so Sanoh flew home to Guinea the next day to be with her in Guinea.  Once in Guinea, Sanoh was unable to return to the United States because he did not have a visa and was unable to secure one.

The prosecutor, confronted with the fact that Sanoh could not lawfully re-enter and return to the United States, argued that the court could permit Sanoh to testify remotely via Skype without violating Spinks’ Sixth Amendment right of confrontation and supported its argument by relying upon Maryland v. Craig, 497 U.S. 836 (1990), and White v. State, 223 Md. App. 353 (2015).

At the preliminary hearing on whether to admit the remote testimony, Sanoh testified that he was not a U.S. citizen, that his visa expired in 2018, and that while he would have liked to return to the United States, he could not do so without a new visa.   The trial court made the following findings of fact:

  1. The witness appeared via real time video conference accessible via computer over the internet;
  2. The witness could see everyone in the courtroom;
  3. Everyone in the courtroom could see the witness, including the defendant;
  4. The witness was alone while testifying;
  5. The witness was first sworn and that the oath was administered just as if the witness had been in the courtroom;
  6. With respect to the quality of the video, the only defect was a tiny delay of sound, which the court described as a couple of milliseconds – and the screen was clear and not pixelated;
  7. The witness had been duly subpoenaed;
  8. After being subpoenaed, the witness received a call that his mother in the Guinea was in the hospital in a coma and was concerned and flew home the next day;
  9. The witness’ visa had expired in 2018 and having left the United States he could not lawfully re-enter the United States;
  10. There is no reasonable expectation that the witness would ever get a valid visa so that even if his mother immediately got better, he could not return and get lawfully through immigration;
  11. The circumstances with respect to the unavailability of the witness were neither a sham nor a ruse;
  12. There was an important public policy to respect – that is that victims of crime are entitled to protection of the criminal laws regardless of whether or not the witness is lawfully in the United States;
  13. That the circumstances in Spinks’ case provided an alternative that was as close as it gets to in person confrontation and fits within what Judge Leahy discuss in White and provided much more protection of the right of confrontation that was present in Craig where the defendant was not allowed to see the witness; and
  14. The necessity in this case was not created by the State.

The trial court also addressed the issue of the evolving reliability of remote technology, noting as follows:

Simply, technology evolves, and sometimes, albeit slowly, the courts evolve with it. There’s no question that a defendant’s right to confront an accuse[r] is paramount, and it     is also quite clear that the defendant’s right to confront an accusatory witness may be satisfied absent a face to face in the courtroom. Here we have face to face over, I find, a reliable technological medium, and it would not deny his rights under the Sixth Amendment to the federal constitution or the Maryland [constitution]. . . .

It was important in this case that the witness’s absence was not something that the witness sought or desired but was caused by a true medical emergency. The trial court also noted that in the Spinks trial, Sanoh was going to say something that was not really contested.  The witness was not going to make an in-court identification nor was the State going to seek to introduce through the witness a prior identification.  The trial court suggested that if these factors were different, then the court may have reached a different conclusion.

COSA determined that the trial court’s factual findings were not clearly erroneous. The remote testimony was necessary and that the features of Skype, as used during the trial, gave the testimony assurances of reliability. COSA held that allowing the witness to testify via Skype did not violate Spinks’ Sixth Amendment right to confront his accuser.

COSA reviewed how the seminal decision in Craig affirmed the constitutionality of this State’s statute authorizing testimony by a child victim via one-way closed-circuit television. See also Criminal Procedure Article § 11-303.  The Craig Court held that such a procedure does not violate the Sixth Amendment right to confrontation when there is a finding that it is necessary to further the State’s strong interest in protecting the child victim from the emotional trauma of having to testify in the defendant’s presence, and when the procedure used adequately preserves the other elements of confrontation that establish indicia of reliability. However, before admitting such video testimony, a court must hear evidence and make a case-specific finding that it “is necessary to further an important state interest.” Thus, the standard set forth in Craig is whether the witness’s testimony via a two-way medium is reliable and whether the denial of an accused’s right to confront in person furthered an important public policy.

Maryland courts have acknowledged that “[e]ven the most cutting-edge technology cannot wholly replace the weight of in-court testimony, for the electronic delivery of that testimony—no matter how clearly depicted and crisply heard—is isolated from the solemn atmosphere of the courtroom and compromises human connection to emotions like fear, apprehension, or confusion.” The Craig court “emphatically cautioned” that there must be “necessity—not simply convenience or expediency—in order to deny a defendant his right to physically confront his adversaries in a court of law” and that “a court must render an adequate, case-specific finding based on the evidence presented that the two-way video conference is necessary to further the identified public policy.”

However, we must remember that the right to a witness’s physical presence in the courtroom is neither absolute, nor “the sine qua non of the confrontation right” and that in some circumstances, that preference may “give way to considerations of public policy and the necessities of the case.”

The Spinks opinion referenced Maryland Rules 2-803, 2-804, and 2-805, adopted by the Court of Appeals in 2018, establishing new standards for video testimony during civil proceedings, in an effort to “expand[] and consolidate[] existing Rules dealing with remote electronic participation in judicial proceedings.” These rules include specific standards for two-way video testimony, which are designed “to take advantage of the technology that allows for reliable interactive communication to provide for more efficient.”

The Rule provides that:

(a) In General. Subject to section (b) of this Rule and Rule 2-804, a court, on motion or on its own initiative, may permit . . . participants to participate in an evidentiary proceeding by means of remote electronic participation

(1) with the consent of all parties, or

(2) in conformance with section (c) of this Rule. . . .

* * *

(c) Absence of Consent; Required Findings.  In the absence of consent by all parties, a court may exercise the authority under section (a) only upon findings that:

(1) participation by remote electronic means is authorized by statute; or

(2) the participant is an essential participant in the proceeding or conference; and

(A) by reason of illness, disability, risk to the participant or to others, or other good cause, the participant is unable, without significant hardship to a party or the participant, to be physically present at the place where the proceeding is to be conducted; and

(B) permitting the participant to participate by remote electronic means will not cause substantial prejudice to any party or adversely affect the fairness of the proceeding.

Committee note: It is not the intent of this section that mere absence from the county or State constitute good cause, although the court may consider the distance involved and whether there are any significant impediments to the ability of the participant to appear personally.

After considering the lessons from the Craig/White analytical framework for determining whether two-way video testimony comports with the Sixth Amendment right of confrontation, the Spinks court held that the trial court did not err in allowing Sanoh to testify via Skype and that the preliminary hearing comported with the procedure approved in White for testing the reliability of the Skype platform and for determining individualized necessity and public policy and concluded that the State established a constitutionally valid predicate for permitting Sanoh to testify via Skype.

While COSA approved of the use of the Skype testimony in Spinks, this was a case in which the trial court engaged in detailed and specific fact finding to support it conclusion of necessity and reliability and where it was determined that there was a need to protect an important public policy.

Efforts to use Spinks to support a request for remote testimony, when not the result of mutual agreement amongst the parties, will require the moving party to be prepared to present compelling facts to support the necessity of such a request.  As COSA noted, “convenience” and “efficiency” are not sufficient public policies to dispense from the right to physical face-to-face confrontation.  It appears clear that the moving party will be required to show what efforts have been made to secure the in-person testimony of the witness.

Proof of necessity is a traditional type of burden lawyers are accustomed to addressing. Proof of reliability may be more challenging and be impacted by the quality of the vehicle used to accomplish the remote testimony.  As many of us have experienced during COVID, even as we have become more familiar with the technology used to conduct remote proceedings, we still continue to experience the technical difficulties that often accompany the use of such applications.

When considering the impact of remote testimony on a defendant’s Sixth Amendment rights, counsel needs to be constantly sensitive to whether the technology “as applied” is sufficiently reliable – and that it continues to be so throughout the course of the remote testimony.   In Spinks the trial court found that Skype provided good quality video and audio.  What would happen, however, if, in a particular case, despite a preliminary finding of reliability, the actual connection during the testimony deteriorates and becomes poor, the image freezes at times, the audio is of poor quality, or there are unforeseen distractions in the background or location where the witness is located?  What if there is not the ability to fully vet the location where the witness is located – and who else may be present – or what materials might be available – perhaps hidden – for the witness to use to guide or refresh the witness’ testimony?   Is someone in the room in which the witness is testifying – perhaps out of sight – who might be in a position to “coach” the witness?

Body language as a factor in assessing credibility is something that can be seen in the courtroom such as, the wrangling of one’s hands, tapping on the witness stand, bouncing one’s knee, and general nervousness. How are those to be considered when the witness may only be seen from the shoulders up?   Does one have a right to insist on a full-length body view of the witness as the witness testifies?

The ability to control not just the tenor of cross-examination, but also the pace of the cross-examination is important, and judgments as how to change tenor or the pace of questioning are often made “on the fly” as one is assessing the witness’ responses.  Distance and delay in audio, minimizes the ability to do so.

If the witness is upset, looking for a “way out” and chooses to engage in unpredictable conduct – how does the judge compel the witness to obey instructions through the internet?

Any occurrence that aggravates the prejudice arising from the lack of an opportunity for in-person confrontation must be objected to and a complete record made of what occurred. Do you demand that the remote video testimony be video recorded so that you have the best and most complete record for any appellate review of how technological difficulties or other issues impact on lessening your ability to cross-exam the witness in an effective manner?

To re-emphasize, the question of admissibility does not end simply when the trial court finds necessity and reliable technology.  Objections need to be made when unexpected events occur during the remote proceedings.

As technology changes and the methods of conducting remote proceedings change, demands for conditions under which remote proceedings should be conducted will also evolve.  Can you require equipment that permits one to observe not just the witness but the entirety of the room in which the witness is located – perhaps by requiring multiple cameras?   Can and should one demand that the witness appear in a commercial facility that can accommodate remote video testimony – and better ensure that there will be no distracting or inappropriate – and unseen – influences in the room where the witness is located during the testimony?

When the remote testimony has been completed, review and consider contemporaneously whether all necessary objections have been made and the objections particularized on the record with proper references to the portions of the testimony that are at issue.  Perhaps individual objections that may have been overruled when made individually will assume greater significance when the cumulative effect of multiple objections are considered at the end of the testimony and at that point provide a basis for taking the position that there has been unacceptable infringement of the defendant’s Sixth Amendment right to effective cross-examination?

Consider also, the situation in which it is the defense making the request for remote testimony, rather than the State.  Does the State’s right to cross-examine a defense witness get the same weighty consideration as does the constitutional right of an accused?  What if a defense witness is out-of-state, perhaps does not want to return to Maryland because of concerns of legal jeopardy, or for other reasons less compelling than those in Sprinks?  How would a trial court weigh necessity, reliability, convenience and economy when it is an accused who seeks to offer remote testimony?  Does the public policy consideration of affording a crime victim a means to have access to court recognized in Spinks apply equally to an argument that there is an equally important public policy of ensuring that a defendant has due process by ensuring that defense witnesses can testify remotely?  The answer will likely have to await a case where such a request is denied and the case works its way to the appellate courts.

The Sixth Amendment right to confront a witness goes to the heart of why we have an adversarial trial system.   We must continue to be alert as challenges arise that jeopardize infringing on that most valuable of trial and constitutional rights.


Over 45 years of trial experience as a federal and state prosecutor and as a criminal defense attorney