The COVID-19 pandemic had a profound impact on the country and its ability to function. However, the effect of the pandemic was felt the hardest in New York City. As the number of new cases continues to decline, government functions are starting to resume. Of course, this includes New York criminal trials, which truly represent the backbone of our criminal justice system.
New York courts will need to deal with many challenges as they begin to hear more cases. The old way of doing things may no longer make sense, with jurors, defendants and supporters all crammed into crowded courthouses. Thus, judges, lawmakers, and court administration will need to come up with solutions to address these issues which are consistent with the constitutional mandate for a speedy and public jury trial. It is critical that whatever new procedures are used, these procedures respect the constitutional rights of defendants.
One issue courts are wrestling with is how to handle live witness testimony. Many witnesses are already reluctant to take the stand and testify at trial. However, with the threat of COVID-19, even fewer witnesses will likely be willing to come to court. Recently, a state appellate court issued a written opinion in a rape case in which an expert witness was permitted to testify over two-way video. The case contains an interesting and important discussion of a defendant’s right to confront the witnesses against him.
In this case, a Michigan man was arrested for a 1996 rape charge. While the allegations occurred back in 1996, the rape kit was only analyzed in 2015, when the kit was sent to a lab in Utah. Rather than fly the Utah lab analyst in to testify, the prosecution presented the analyst’s testimony through two-way video. The prosecution justified their decision by citing the expensive cost of flying the witness out.
The trial court allowed the testimony over the defendant’s objection, and the intermediate appellate court affirmed the defendant’s subsequent conviction. The defendant then appealed to the states’ high court, which reversed the defendant’s conviction.
The court held that a defendant’s right to confront the witnesses against him is absolute “unless a witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.” The court rejected the lower courts’ approach, which would allow out-of-court testimony when it was justified by other considerations, such as practicality or cost. Here, the court explained that the cost of flying a witness out cannot be used to circumvent a defendant’s right to confront their witnesses.
While this case did not arise in the post-COVID world, it raises very salient issues. Prosecutors may try to rely on two-way video to secure witness testimony in the wake of COVID-19. However, this deprives defendants of the ability to assess the credibility of these witnesses and effectively confront them, as the court’s opinion notes.
Have You Been Arrested for a New York Crime?
If you have recently been arrested and charged with a serious crime, such as a New York sex offense, contact the dedicated criminal defense attorneys at Tilem & Associates. At Tilem & Associates, we represent clients in all types of serious criminal cases, aggressively guarding their rights at every step of the process. To learn more, and to schedule a free consultation today, call 877-377-8666.