Virtual Witness Confrontation in Criminal Cases: A Proposal to Use Videoconferencing Technology in Maritime Piracy Trials
Dutton, Yvonne M., Vanderbilt Journal of Transnational Law
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
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. …