Virtual Witness Confrontation in Criminal Cases: A Proposal to Use Videoconferencing Technology in Maritime Piracy Trials

Article excerpt

ABSTRACT

Maritime piracy is a serious problem, yet states are not prosecuting captured pirates with any regularity. One of the many reasons cited to explain this phenomenon focuses on the expense and difficulty of mounting cases of such international proportions and which involve evidence, suspects, victims, and witnesses from around the globe. In an effort to help close the impunity gap that surrounds piracy, this Article offers a potential solution to the difficulties associated with obtaining live witness testimony. It proposes a rule to allow witnesses under some circumstances to testify remotely by way of two-way, live videoconferencing technology. While remote testimony need not become the norm in maritime piracy cases, the proposed rule is carefully structured to balance both the public's and the defendant's interest in a fair trial.

TABLE OF CONTENTS

  I. INTRODUCTION
 II. TWO-WAY, LIVE VIDEOCONFERENCING
     TECHNOLOGY (VCT)
III. SOME APPROACHES USED TO ANALYZE WHEN
     TO ALLOW PROSECUTION WITNESSES TO TESTIFY
     BY TWO-WAY, LIVE VCT IN CRIMINAL TRIALS
     A. Remote VCT Prosecution Testimony in
        International Criminal Courts
        1. The International Criminal Tribunal
           for the Former Yugoslavia
        2. The International Criminal Tribunal
           for Rwanda
        3. The Special Court for Sierra Leone
        4. The International Criminal Court
     B. Remote VCT Prosecution Testimony in
        Federal Courts in the United States
        1. U.S. Supreme Court Cases Guiding
           Lower Court Decisions on Whether to
           Admit Remote Adult Prosecution-Witness
           Testimony
           a. Coy v. Iowa
           b. Maryland v. Craig
        2. Federal Circuit Split on the Proper
           Test to Apply in Determining When
           to Permit Adult Prosecution Witnesses
           to Testify by Two-Way, Live VCT
        3. The Supreme Court After Craig: Some
           Confrontation Clause Guidance, but
           No Resolution of the Circuit Split
 IV. THE PROBLEM OF MODERN MARITIME PIRACY AND
     THE NEED TO ENCOURAGE STATES TO USE THE
     AVAILABLE LAWS TO PROSECUTE PIRATES
     INSTEAD OF RELEASING THEM
     A. The Continuing Threat of Modern
        Maritime Piracy
     B. The International Law Authorizing Piracy
        Prosecutions
     C. The Tendency to Release, Rather than
        Prosecute, Captured Pirates
     D. The Need to Encourage More Piracy
        Prosecutions by Improving Access to
        Witness Testimony
 V. A PROPOSAL TO ALLOW TWO-WAY, LIVE VCT
    WITNESS TESTIMONY IN MARITIME PIRACY TRAILS
    A. Testimony Necessary to the Fair and Just
       Resolution of the Case
    B. Witness Unable or Unwilling for Good
       Reason to Testify in Person
    C. Transmission and Other Safeguards to
       Protect Defendant's Fair-Trial Rights
VI. CONCLUSION

I. INTRODUCTION

Advancements in technology have now made it possible for courts around the globe to secure the testimony of witnesses remotely. Through two-way, live videoconferencing technology (VCT), a witness's image and voice can be transmitted from any location in the world to the courtroom where the trial is taking place. (1) The benefits of using such technology can obviously be significant in circumstances where witnesses would have to travel great distances at great cost and at great inconvenience, while also risking their health or safety, to testify live at a trial. When seeking the testimony of foreign witnesses who are beyond the subpoena power of the court, the promise of remote testimony may be the only way to obtain that witness's cooperation and evidence. (2)

Notwithstanding that many commentators and courts seem to embrace the benefits of remote witness testimony in civil cases, (3) not all agree on the propriety of allowing prosecution witnesses to testify by two-way, live VCT against defendants in criminal trials. The arguments against remote testimony in criminal trials include the following: remote testimony may violate the defendant's right to be confronted with the evidence against him because the testimony is not "face-to-face"; (4) remote testimony cannot ensure truthfulness to the same extent as requiring the witness to testify live before the defendant; (5) and remote testimony does not provide the court and jury with the same opportunity as does live testimony to assess the demeanor and truthfulness of the witness. …