By Ben A. Tigay of Fausone & Grysko, PLC posted in Criminal Law on Monday, July 6, 2020.

Last week, the Michigan Supreme Court held that video testimony from a witness for the prosecution was unconstitutional. In a unanimous decision, the Court stated that the defendant in a criminal trial had the right to confront witnesses against him in person. While the decision follows the long legal history about the Confrontation Clause, the decision comes during the Coronavirus pandemic and the age of Zoom meetings.

The defendant faced a trial for two counts of criminal sexual conduct. Part of the prosecution’s evidence was DNA samples that were analyzed by a lab in Utah. The lab analyst testified in the trial in Michigan via two-way, interactive video testimony. The defendant objected, arguing that the video testimony violated his rights under the Confrontation Clause.

The Sixth Amendment guaranteed that “the accused shall enjoy the right [. . .] to be confronted with the witnesses against him;” this passage has become known as the Confrontation Clause. Courts have held that this right means that the defendant in a criminal case may question witnesses against him face-to-face in open court. Acting under this legal framework, the Court held that the video testimony violated the defendant’s right to an in-person confrontation and questioning of the witness. Except under very limited circumstances, a defendant in a criminal case has the right to confront a witness in person.

The opinion did not mention Zoom or the pandemic, but the context cannot be ignored. As Michigan courts begin to slowly open the public, the Court made it clear that Constitutional rights still apply for criminal defendants. As Justice Scalia put it: “Virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones.”