As COVID-19 pushes more court proceedings to video, you might enjoy reading a 2019 order on the topic from Raleigh-based U.S. Magistrate Judge Robert Numbers.

The order in U.S. v. Rivera addressed prosecutors’ motion to have a witness in a criminal case testify from Hawaii by two-way videoconference. Numbers denied the request.

“[I]t would be inappropriate to deny criminal defendant her Sixth Amendment right to in-person, face-to-face confrontation of witness against her, in favor of allowing witness to testify by two-way video conference,” Numbers ruled.

“[I]nconvenience to government witness of requiring her to travel a second time from her home state of Hawai’i to North Carolina did not rise to level of important public policy, such as might justify depriving defendant of her Sixth Amendment rights,” he added.

Part of Numbers’ order relied on history, including one element of particular interest to residents of North Carolina’s capital city.

The Framers designed the Confrontation Clause to prevent the “use of ex parte examinations as evidence against the accused.” Their concerns arose from a series of abuses in the 16th and 17th centuries where prosecutors used out-of-court, un-confronted testimony to convict accused persons. The most notorious example occurred in the trial of Sir Walter Raleigh. Among the evidence prosecutors levied against Raleigh was a letter from an alleged accomplice. Sensing that his accuser had lied to spare himself, Raleigh demanded that the letter’s author be brought to court so he could confront him. But the judges denied his request. The jury convicted Raleigh and he received a death sentence.

England responded to these abuses with a series of laws that led to the right of confrontation. Among the changes was a requirement in treason statutes requiring “witnesses to confront the accused ‘face to face’ at his arraignment.” And English courts “developed relatively strict rules of unavailability, admitting examinations only if the witness was demonstrably unable to testify in person.”

After the order, prosecutors ended up bringing the witness to North Carolina from Hawaii, and Rivera was convicted.