In-court Testimony Research Articles

Confrontation During COVID

The opportunity to face one’s accuser is a fundamental right guaranteed by the Sixth Amendment’s Confrontation Clause. It is a historical right that the Romans afforded to Jesus' disciples. And it is a right that may soon fall by the wayside in our new socially-distant reality and beyond. Our legal system has utilized videoconferencing technology long before Zoom became a verb in the American lexicon. In Maryland v. Craig, the United States Supreme Court established a two-step “necessity and reliability” test for allowing video testimony offered by child survivors of sexual abuse against their alleged abuser. As we move towards an increasingly virtual world during the COVID-19 pandemic, courts, prosecutors, defense attorneys, and legal scholars are conflicted as to whether government witnesses in criminal trials should be permitted to testify by videoconference in our new socially-distant reality and beyond.In this Note, I enter this debate by offering a practical proposal for trial courts and a normative one for the Supreme Court. I contend that district court judges should not extend Craig to permit accusatory witnesses to testify over videoconference during the pandemic. A Rule 15 deposition, I contend, is a more constitutionally-sound alternative to in-person testimony than is video testimony because it provides the defendant the opportunity to confront the witness in-person (albeit socially- distant). Normatively, I argue that the Court should remove its reliability and public policy analyses in Craig, which have been rendered impermissible by its later decision in Crawford v. Washington. Instead, the Court should adopt what I call “hierarchy of methods” approach, permitting video testimony only when securing in-court testimony or Rule 15 deposition of an essential witness is infeasible.

Back to the Future: Reviving the Use of Video Link Evidence in Canadian Criminal Courts

Section 714.1 of the Criminal Code of Canada allows for witnesses and victims to testify remotely via video link, within Canada. The legal test embedded within this provision – “appropriate in all the circumstances” – has led to inconsistent application across the country. Some jurists have embraced the flexibility provided by the video link process. Others have expressed reluctance, articulating the position that in-court testimony is to be preferred and permitting the use of video link evidence only in exceptional circumstances. R. v. S.D.L. is the first treatment of 714.1 by an appellate court. The Nova Scotia Court of Appeal has provided a set of clear guiding principles for trial judges. The Court recognized that applications for testimony via video link “should be permitted” so long as they do not negatively impact upon trial fairness or the open court principle. More specifically, where reliability (rather than credibility) is the central issue with respect to evaluating a witness’ evidence, video link applications should routinely be granted. The use of technology in the courtroom can thus contribute to the truth seeking function of the trial process and provide support for vulnerable victims and witnesses who may otherwise face greater personal costs through the process of testimony.

Attorney Questions Predict Jury-eligible Adult Assessments of Attorneys, Child Witnesses, and Defendant Guilt.

Children are often the primary source of evidence in maltreatment cases, particularly cases of child sexual abuse, and may be asked to testify in court. Although best-practice protocols for interviewing children suggest that interviewers ask open-ended questions to elicit detailed responses from children, during in-court testimony, attorneys tend to rely on closed-ended questions that elicit simple (often "yes" or "no") responses (e.g., Andrews, Lamb, & Lyon, ; Klemfuss, Quas, & Lyon, ). How then are jurors making decisions about children's credibility and ultimately the case outcome? The present study examined the effect of two attorney-specific factors (e.g., temporal structure and questioning phase) on mock jurors' perceptions of attorney performance, child witness credibility, storyline clarity, and defendant guilt. Participants were randomly assigned to read a trial excerpt from one of eight conditions and were then asked to evaluate the attorney, child witness, and the case. Selected excerpts were from criminal court case transcripts and contained either high attorney temporal structure (e.g., use of temporal markers) or low temporal structure (e.g., frequent topic switching), involved direct or cross-examination, and represented cases resulting in a conviction or acquittal. Child responses were kept consistent across all excerpts. Results showed that participants perceived the attorney's performance and child's credibility more favorably and thought the storyline was clearer when attorneys provided high rather than low temporal structure and when the excerpt contained direct rather than cross-examination. Participants who read a direct rather than cross-examination excerpt were also more likely to think the defendant was guilty. The study highlights the impact of attorney questioning style on mock jurors' perceptions. Copyright © 2016 John Wiley & Sons, Ltd.

Law & Psychiatry: Facilitating Testimony of People With Mental Illness

Persons with mental illness may face particular challenges when asked to testify at criminal trials. Mental illness, along with the pressures of testifying, may prevent them from testifying or may affect their testimony. This column discusses laws that, in certain circumstances, permit litigants to use out-of-court statements made by people with mental disorders as a substitute for in-court testimony; two U.S. Supreme Court cases that placed substantial limits on the use of out-of-court statements under these laws; and in light of these limits, alternatives that would permit use of out-of-court statements.

The development of an artefactual language ideology: Utterance, event, and agency in the metadiscourse of the excited utterance exception to hearsay

In this paper I argue that a particular type of Anglo-American legal discourse treats spoken language as a text artifact and discuss the effects on the person to whom the text artifact is attributed. I do this by historicizing the language ideology that generally prohibits the use of hearsay in in-court testimony, but admits ‘excited utterances,’ or declarations made spontaneously in response to an event ‘startling enough to cause nervous excitement’ ( Haggins vs. Warden, Fort Pillow State Farm, 1984, p. 1057). The language ideology mobilized and circulated in this discourse assumes that some utterances are by their very nature artefactual, and as artifacts, they are the property of the event, not the speaker. This rule and language ideology have roots in early modern English common law. I trace the history of this language ideology back through the definitions of the excited utterance exception to hearsay, historically called the spontaneous exclamation exception. This particular discourse highlights the ways ideas about language are historically saturated, the ways that history is embedded in metadiscourses, and the effects of metadiscursive evaluation on the people whose utterances are in question.

The right to expert testimony.

THE trial of a criminal case is often a lopsided matter. On the prosecution side there is frequently a complete battery of medical experts, laboratories and a seemingly inexhaustible supply of funds with which to obtain other, expert testimony if needed. In contrast to this, on the defense side, one usually finds the client and his attorney; their pretrial access to medical experts and tests and later to in-court testimony is frequently limited by the financial resources of the client. For the indigent accused, the lack of finances has been an insuperable barrier to the availability of such assistance and, . . .

A Privileged Communications Statute for Massachusetts

IN an article that appeared earlier in the Journal, the legal issues of confidentiality and privileged communication were discussed.1 It was noted that in the states where such a privilege exists, it relates to in-court testimony by a physician about confidential communications that he has obtained in his professional relation with a patient. The patient is privileged in that his physician is precluded from testifying about such communications. Accordingly, the physician may refuse to answer any questions in that context unless the patient, who alone may do so, waives the privilege.Massachusetts has recently enacted its first privileged communications . . .