Academic journal article Harvard Law Review

Sixth Amendment - Confrontation Clause - New Mexico Supreme Court Holds Two-Way Video Testimony Violates Confrontation Clause

Academic journal article Harvard Law Review

Sixth Amendment - Confrontation Clause - New Mexico Supreme Court Holds Two-Way Video Testimony Violates Confrontation Clause

Article excerpt

SIXTH AMENDMENT--CONFRONTATION CLAUSE--NEW MEXICO SUPREME COURT HOLDS TWO-WAY VIDEO TESTIMONY VIOLATES CONFRONTATION CLAUSE.--State V. Thomas, 376 P.3D 184 (N.M. 2016).

The Confrontation Clause of the Sixth Amendment ensures that a criminal defendant has the right "to be confronted with the witnesses against him." (1) The Clause was traditionally understood to "guarantee[] the defendant a face-to-face meeting with witnesses" during trial. (2) Maryland v. Craig (3) clarified that the right to physical confrontation was not absolute and laid out circumstances when it could be relaxed. (4) As videoconferencing technology improves, and its use in courtrooms promises greater efficiency, cost savings, and information available to the factfinder, (5) courts have considered whether allowing a prosecution witness to testify by two-way video satisfies the Confrontation Clause. Recently, in State v. Thomas, (6) the New Mexico Supreme Court held that the two-way video testimony of a forensic analyst violated the defendant's Sixth Amendment right to confrontation. (7) The court's discussion of the Confrontation Clause illustrates how current U.S. Supreme Court precedent leaves courts struggling to apply established tests to two-way video testimony.

Truett Thomas was charged with kidnapping and murdering Guadalupe Ashford. (8) Drag marks led to the location of her body at the edge of a parking lot with a bloodied paver stone nearby, blood sprinkling the area. (9) She died from a series of blows and lacerations to her head. (10) DNA samples collected from her body and the paver stone matched Ashford's and Thomas's DNA; the latter's genetic material had been archived in the FBI's Combined DNA Index System database. (11) Thomas denied that he had ever met Ashford, and no one saw him near the parking lot. (12) The DNA evidence alone provided the basis for Thomas's arrest and indictment. (13)

The trial began approximately twenty-six months after Thomas's arrest. (14) The forensic analyst who had worked on the DNA samples had moved out of state by that time. (15) Two weeks before trial, the prosecutor informed the court that the analyst might not be able to appear in person for trial and requested that she be permitted to testify by Skype, a "two-way audio-video communications application," and defense counsel consented so long as there were no "technical issues." (16) One week later, defense counsel raised the possibility that the two-way video testimony could violate the Confrontation Clause. (17) The district court ruled that the defendant "had waived any objection" to the use of two-way video by his prior consent, and the analyst appeared by two-way video at trial. (18) The video feed of the analyst was displayed to the jury, and the analyst saw only "the attorney questioning her." (19) Thomas was found guilty of both charges and sentenced consecutively to life imprisonment for the murder and eighteen years for the kidnapping. (20) He moved for a new trial based on newly available DNA evidence and raised the issue of the trial judge's conduct on social media during and after trial. (21) The district court denied his motion, and Thomas appealed directly to the New Mexico Supreme Court. (22)

The New Mexico Supreme Court reversed and remanded to the lower court to enter a judgment of acquittal on the kidnapping charge and to retry the murder charge. (23) Writing for the court, Chief Justice Daniels (24) first held that the defendant's right to a speedy trial was not violated by the twenty-six months of pretrial custody. (25) While the twenty-six month delay was long enough to prompt a speedy trial inquiry, (26) Thomas had not shown that the length and causes of the delay weighed heavily in his favor and had not presented sufficient evidence that the delay caused him particularized prejudice or anxiety worse than that of other defendants jailed before their trials. (27)

The court then turned to whether the use of the two-way video testimony violated Thomas's right to confrontation. …

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