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Can Arizona Criminal Cases Proceed with Witnesses Testifying Through Two-Way Video?

In the wake of the COVID-19 pandemic, courts are dealing with many novel legal issues. One of those issues is how to conduct Arizona criminal trials in a time of social distancing. Thus far, there is no consensus on how to effectively hold a trial while protecting a defendant’s constitutional rights, however, some courts are considering allowing witnesses to testify through the use of two-way video calls.

The Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” This is referred to as the Confrontation Clause. Over the years, the United States Supreme Court has issued several important opinions discussing a defendant’s right to confront their accusers. However, this issue seems more salient than ever, and will likely come before the Court again.

Recently, a state appellate court issued a written opinion in a case that, while not dealing specifically with the complications presented by the COVID-19 pandemic, illustrates the issue quite clearly. In that case, a defendant faced sexual assault charges stemming from an incident in 1996. At the time, a rape kit was performed, however, it was not analyzed until 2015. The results of the testing tied the defendant to the crime.

At trial, the prosecution called the forensic analysis who conducted the testing. However, rather than fly the analyst out from Utah, where the lab was located, the court permitted the prosecution to present the analyst’s testimony through two-way video. The court overruled the defendant’s objections, and the defendant was convicted.

On appeal, the state’s supreme court reversed the defendant’s conviction, finding that the presentation of the analyst’s testimony through two-way video deprived the defendant of his rights under the Confrontation Clause. In coming to this conclusion, the court reviewed several of the U.S. Supreme Court’s opinions dealing with the defendant’s right to confront his accusers. In interpreting these opinions together, the court held that a defendant’s right to confront the witnesses against them is “absolute for all testimonial evidence unless a witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.”

Here, the court noted that the analyst’s testimony was testimonial and the defendant was not provided the opportunity to cross-examine the analyst. Thus, the court held that the witnesses’ testimony needed to be in-person to protect the defendant’s rights under the Confrontation Clause.

While this case arose in another state and outside the context of the current concerns surrounding the COVID-19 pandemic, it provides insight as to the importance of a defendant’s right to confront their accusers. It remains to be seen how Arizona courts will handle criminal trials. However, whatever method the courts select, it must adequately protect a defendant’s rights.

Have You Been Arrested for an Arizona Crime?

If you have recently been arrested for a crime, contact Attorney James E. Novak for immediate assistance. Attorney Novak is a veteran Tempe criminal defense attorney with extensive experience aggressively representing clients who face all types of serious allegations, including Arizona sex offenses, weapons crimes, and more. To schedule a free consultation with attorney Novak today, call 480-413-1499 today.

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