Virtual Confrontation: Is Videoconference Testimony by an Unavailable Witness Constitutional?

Abstract

As business and commerce become more international in scope, related crimes such as fraud,1 money laundering,2 drug trafficking,3 violation of trade sanctions,4 and even antitrust violations5 are increas ingly likely to involve international commerce.6 In such cases, it is probable that a prosecutor will require testimony from foreign wit nesses to prove his or her case.7 Federal prosecutions of suspected terrorists, which may become more frequent in the coming decade, are also likely to involve foreign witnesses residing overseas. Securing the testimony of such witnesses may present prosecutors with serious difficulties. The United States and its federal courts have no subpoena power over foreign nationals residing in a foreign coun try,8 and therefore prosecutors and judges cannot compel foreign wit nesses to travel to the United States to appear at trial. There may, in some cases, be a treaty between the United States and the foreign country that allows prosecutors to use the foreign government's power to compel witnesses to testify via deposition in their own na tions.9 Still, the only way to secure a foreign witness for testimony at the trial itself is to convince the witness to voluntarily make the jour ney to the United States. If the witness is unwilling to travel, he is es sentially unavailable10 to testify at trial.