Utah Court Rules – Published for Comment
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Posted: February 9, 2021
URCrP017.5. Hearings with contemporaneous transmission from a different location. (AMEND). The proposed amendments will allow toxicologists to testify through remote transmission in misdemeanor cases provided appropriate safeguards are in place.
I think the courts are going down a slippery slope. This will lead to other exceptions. Eventually, we will not recognize trials. There will be exceptions for other expert witnesses. It could lead to remote testimony of other witnesses such as victims for various reasons such as protecting victims from the emotional trauma of testifying in open court or because they moved out of State. This can apply to nonvictim witnesses. I understand the virus situation, but this is temporary.
This rule tramples a defendant’s right to force the government to prove their case by having their witnesses available in court and also violates a defendant’s right to cross examination in person. There is ample case law that says a defendant has a right to confront against witnesses physically present in court – “Writing for the Court, Justice Scalia recognized that it is the defendant’s right to a face-to-face encounter with an adversary witness that is at the “core” of a defendant’s confrontation rights.” Coy v. Iowa, 487 U.S. 1012, 108 S. Ct. 2798 (1988).
I strongly urge this change is not adopted and concur with concerns this is a slippery slope. Video testimony is simply not an adequate substitute for the constitutionally-required right to confront witnesses.
The reasoning for this particular carveout is not clear. Why toxicologists, what’s so unique about them? If toxicologists are testifying about impairment, how would a defendant NOT have good cause to confront this witness in person before a jury? And if that’s the case then making a rule seems like a waste of resources – like me having to comment on this lame rule. Just leave it to the parties. If toxicology isn’t a point of contention in the case, the parties will likely stipulate to something like this. Otherwise, it seems like the only purpose of this rule is to make it more “convenient” for toxicologists to testify remotely. And 99/100 times that’ll be the State’s witness.
I appreciate the committee attempting to bring technology more into the court. I would certainly agree that technology can help us. However, I have multiple concerns with this rule change. I’m sure many people will be addressing the Constitutional concerns. For me, that is my first concern. This is another stone chipped away at a defendant’s constitutional rights. I think it is a clear violation of the confrontation clause. Even if it were to be found constitutional I would still argue it is a bad policy. It is extremely difficult to conduct an adequate direct or cross-examination on a witness over video. Regardless of which side is conducting the questioning. Video has delays, connection issues, and most importantly it is impossible for a jury to judge the credibility of witnesses who are not physically present.
To quote the late Antonin Scalia: “The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause – like those other constitutional provisions – is binding, and we may not disregard it at our convenience.”
Unless we intend to rewrite the Constitutions of the United States and the State of Utah, it is difficult to imagine this rule change surviving a constitutional challenge. Lest we return to a system of subservience to “the Crown,” I hope the protections provided by the drafters of those documents will continue to be held sacred.
The role of the Govt in a criminal case is to seek justice. Its not about getting the “win” and doing it in the manner of least inconvenience. The confrontation clause guarantees a defendant’s right to confront his/her accuser. The remote hearings we’ve been doing over the past several months have shown us that it is not the same as in court, face to face direct and cross examination. This rule will lead us down the proverbial slippery slope. The convenience aspect has already been addressed in several rulings from the Supreme Court which held that this type of exception violates a defendant’s due process rights. And to limit this to just misdemeanor cases is just a method of sticking the camel’s nose under the tent. Then we’ll see the rule expanded to district courts and felony matters because…”its been proven in the misdemeanor courts.” Do not make an exception to a defendant’s rights and facilitate the Govt’s ease in taking away someone’s liberties.
1 – The rights of confrontation and cross-examination were never intended to make prosecution more convenient or to make conviction easier for the government. These constitutional principles are intended to protect the individual.
2 – The presumption of innocence requires that a prosecutor present evidence to prove each element of any criminal charge, even in misdemeanor cases.
3 – Negligent homicide and driving under the influence are just two examples of misdemeanors that can involve testimonial evidence of toxicological analysis. Although they are misdemeanors, a conviction on either of these charges will carry serious consequences from both the court case itself and from the collateral consequences that persist long after a trial has concluded.
4 – A forensic toxicologist will likely be employed by the same government that is prosecuting the case. Issues of bias and truthfulness can arise with any witness, even a prosecution witness employed by the government.
5 – On a more practical note, “contemporaneous transmission” is a phrase that has been used in other contexts (e.g. Civil Rule 43) to include telephonic transmission. The proposed Rule 17.5 does not specifically require that the remote testimony include any video component. Quite literally, the proposed rule could allow government witnesses to “phone it in.”
The desire to increase efficiency in the courtroom is laudable. The rule, as currently stands, has a number of significant problems.
1) There’s a lot of problems with the term “forensic toxicologist.” Those folks at the state lab aren’t toxicologists, forensic or otherwise. They’re criminalists (forensic science is criminalistics, and criminalist is the common term nationally for the role that the technicians at the state toxicology lab fill). So that’s a problem. The rule doesn’t identify them correctly. This is more than a pedantic issue. The term “forensic toxicologist” carries significant meaning in the scientific community about an individual’s background and education. The rule would be enshrining an inappropriate level of authority by giving criminalists an incorrect designation.
2) Because “forensic toxicologist” is actually a niche role in an already narrow field, this rule doesn’t apply equally to defense and prosecution. As written prosecution get to use a remote expert under the incorrect understanding that criminalists are forensic toxicologists. But what kind of expert can a defense bring in remotely? Is defense limited to a forensic toxicologist? That’s unduly restrictive since I can use any number of experts to challenge the lab’s chromatograms: a chemist, a clinical physician, a microbiologist, a chemical engineer, etc. There are lots and lots of people who are competent to testify that the State’s machine (GC-FID) can’t actually tell the difference between ethanol and ethyl chloride. I worry about hiring a chemical engineer who isn’t a “forensic toxicologist” and then not being able to use that expert because of the strict reading of the rule.
3) I’m also concerned about the meaning of “good cause.” It’s a little nebulous. Setting aside the concern about this eroding the confrontation clause, all I really want from the criminalist is to be able to impeach them with documentary evidence such as the chromatogram, their SOP manual, and learned treatises. And that can be super hard to do if I’m in the courtroom with the jury and the criminalist is remote. Courts have differing technological capacities. In SLC Justice Court, I have to actually stand at the clerk’s desk awkwardly to use their technology (which is at the back of the room between the judge and jury with a small TV on the opposite end of the room). This is messy. And maybe my situation constitutes “good cause” for face-to-face testimony but I don’t know if a judge will agree. And then if I’m forced to try and make it work, it’s going to potentially greatly lengthen trial as I switch back and forth between “screen sharing” impeaching material with the criminalist’s face for the jury to see how they react to it (what do I do when I want to impeach with a book? Having some scanned pages is not the same thing as using the book). And in SLC Justice Court those TV screens on the opposite end of the room really are quite small (as I imagine they are in many other justice courts). Jurors will get distracted and bored by the endless switching back and forth along with accompanied delays in the system. The judge will get annoyed at the inefficiency. I’ll get annoyed. And maybe the judge will regret ruling against me, but by that point it’s too late.
The term “good cause” here isn’t tailored to acknowledge this kind of scenario or to guide courts that this scenario falls under the umbrella of good cause (which is otherwise almost entirely a discretionary decision), and this doesn’t seem like an appropriate thing to force the defense to have to articulate each time we want live testimony. Again, setting aside confrontation issues for a moment (more on that below), the rule should make it clear that a criminalist must physically appear if the defense may use documentary evidence to impeach the witness. Which, for at least some of us, is going to be in most of the DUIs and DwMCS cases that we take to trial.
4) The notice issue is unresolved. I don’t know if the prosecutor files a motion to permit remote testimony or I file a motion demanding in-person testimony. How does this work with pro se defendants?
5) Here’s the big one: this rule violates the confrontation clause. As a preliminary point, two of the seminal confrontation cases are about forensic drug analysis that’s highly similar to what criminalists do in Utah: Melendez-Diaz and Bullcoming. The quote that Michael Branum cited in his comment about the Confrontation Clause not bending to convenience comes from the majority opinion in Melendez-Diaz. To be fair, Melendez-Diaz and Bullcoming are about something quite different than remote transmissions, but it’s worth underscoring that some of the biggest battles over the confrontation clause are on forensic experts.
Crawford clearly equates the confrontation clause with face-to-face confrontation. The whole point is so that the witness and the defendant can see each other so that the witness understands who it is that they are giving testimony against. Physical presence is virtually axiomatic to face-to-face confrontation.
Notably, there is caselaw on the confrontation that allows for contemporaneous transmission from another place. Maryland v. Craig, which creates a presumption of face-to-face confrontation without necessarily requiring it in all situations. But the holding of Craig is very narrow (the case was about a child rape victim), based on a far more compelling circumstances than 17.5’s concern about governmental costs, and it predates Crawford, relying on the now overruled Ohio v. Roberts decision. That history calls the ongoing vitality of Craig into question. I strongly recommend reading a recent opinion by the Michigan Supreme Court that gives a more thorough review of how Craig fits in with the modern confrontation clause. Interestingly the opinion decides whether a forensic evaluator’s remote transmission testimony violates the confrontation clause. People v. Jemison, 505 Mich. 352, 355, 952 N.W.2d 394, 395 (2020). As an aside, take it for what it’s worth, two of the three new justices on the Supreme Court—Justices Barrett and Gorsuch—are staunch believers in the Crawford-originalist confrontation paradigm.
Just as a concluding point, I have no problem conceptually with a rule that expands the permitted uses of remote testimony. Allowing greater latitude would be revolutionary to the defense since it gives us access to experts we couldn’t otherwise afford. And there are some DUI cases where I would have no problem with the criminalist remoting in such as in meth DUIs where the amount of meth in the blood says nothing about their ability to drive or actual physical control cases where the evidence doesn’t support my client’s control of a vehicle. An amended rule that allows a defense’s waiver would be perfectly fine. That said, I’d hope that the instructions on the waiver would be clear enough to ensure that pro se defendants don’t get abused by not appreciating what they give up with a waiver (a particularly important consideration given that some justice courts aren’t good about appointing counsel when they really should, forcing ignorant pro se defendants to navigate the system in bewilderment).
The rule as currently drafted is inconsistent with the established constitutional protections of the right to confrontation. But even if the proposed rule were modified to address conflicts with present law, its viability is still threatened by the fact that it is premised on case law of dubious worth.
1. As noted by David Ferguson above, to the extent that it is still valid, Maryland v. Craig, 497 U.S. 836 (1990), provides the controlling test for the admissibility of remote testimony under the federal Confrontation Clause. See, e.g., U.S. v. Yates, 438 F.3d 1307, 1313 (11th Cir. 2006) (en banc) (“Craig supplies the proper test for admissibility of two-way video conference testimony.”); accord U.S. v. Bordeaux, 400 F.3d 548, 552–55 (8th Cir. 2005); U.S. v. Carter, 907 F.3d 1199, 1206–08; State v. Rogerson, 855 N.W.2d 495, 502–03 (Iowa 2014) (collecting similar cases).
Under Craig, a “court generally must: (1) hold an evidentiary hearing and (2) find: (a) that the denial of physical, face-to-face confrontation at trial is necessary to further an important public policy and (b) that the reliability of the testimony is otherwise assured.” Yates, 438 F.3d at 1315 (citing Craig, 497 U.S. at 850, 855).
As written, proposed Rule 17.5(d) contradicts the Craig test. For starters, there is no apparent requirement that a court hold an evidentiary hearing.
Next, proposed Rule 17.5(d) does require a showing of necessity that Craig demands. Craig demands strict necessity, not mere convenience to prosecution interests. See, e.g., Yates, 438 F.3d at 1316. Instead, the proposed rule presumes that remote testimony by “forensic toxicologists” will be allowed unless a party in the case objects and provides good cause for why the expert should appear in person. In other words, the proposed rule requires the opposite of what Craig demands.
Finally, proposed Rule 17.5(d) as currently written doesn’t appear to meet Craig’s requirement that the testimony be reliable. Perhaps that is because it mistakenly refers to URCP 43(b), and not some other provision. Regardless, as written, it is insufficient.
2. Of course, the above analysis assumes that Craig is still good law. However, numerous courts and others have doubted its vitality in light of the Supreme Court’s subsequent decision in Crawford v. Washington. One of the best is the concurrence in U.S. v. Cox, 871 F.3d 479 (6th 2017). In it, Judge Sutton recognized that “junior courts may not overrule the handiwork of their superiors” and so it concurred in the use of the Craig standard. Id. at 492. But Judge Sutton then went on to explain at length the contradictions between the reasoning in Craig and the reasoning in Crawford, highlighting five different points.
This is significant for two reasons. First, and most obviously, this conflict portends a future Supreme Court ruling that completely undermines the proposed rule. While the proposed rule fails to even meet the requirements of Craig, it is very well possible that Craig’s more permissive test for allowing remote testimony will be overruled, further endangering the rule’s viability.
But beyond that, the proposed rule’s apparent reliance on a pre-Crawford understanding of the confrontation rights also raises questions about the proposed rule’s compatibility with the Utah constitution. Although materials are limited, the available evidence indicates that original understanding of Utah’s Confrontation Clause is more in line with Crawford than Craig, too. See State v. Mannion, 57 P. 542 (Utah 1899). Years ago, the Utah Supreme Court ignored that original meaning in favor of the confrontation test announced in Ohio v. Roberts, 448 U.S. 56 (1980). See State v. Brooks, 638 P.2d 537, 539 (1981), abrogated on other grounds by State v. Goins, 2017 UT 61. Since Crawford has overruled Roberts, it is difficult to believe that the Utah Supreme Court would continue to adhere to the Roberts standard, which has no basis in the Utah constitution. Instead, if the question were raised, it seems more like that the Utah Supreme Court would return to the original meaning. Thus, even if the U.S. Supreme Court continues to stand by Craig, the proposed rule could still be found unconstitutional under the state constitution.
In light of these flaws, the propose rule should be rejected.