Wired is reporting on the use of a live two-way video stream during testimony in the Article 32 investigations of Marines charged with murder in Haditha, Iraq. Wired does a good job of explaining the technology, but falls a bit short on the law. The hearings held for the Marines are all Article 32 investigations not courts-martial. This is a critical distinction for the law.
At an Article 32 investigation, a witness will be produced if her presence is relevant and she is reasonably available. “Reasonably available” is defined as the witness being located within 100 miles from the situs of the investigation and the “significance of the testimony and personal appearance of the witness outweighs the difficulty, expense, delay and effect on military operations of obtaining the witness’ appearance. R.C.M.405(g)(1)(1)(A). Essentially a witness must be at the hearing unless his commanding officer determines the cost, difficulty, expense, or effect on military operations outweighs the necessity of his presence.
At a court-martial the determination is different. Under United States v. Shabazz, 52 M.J. 585 (N.M.Ct.Crim.App. 1999), remote video testimony was not allowed, as it violated the accused’s rights under the Sixth Amendment. The court in Shabazz found that the Video Teleconference (VTC) testimony in that case failed to pass constitutional muster, as (1) the military judge failed to exert clear control over the use of VTC during the trial, (2) once the judge heard a voice at the remote site repeating questions for the witness, the judge failed to ensure that the witness was not being coached, and (3) the judge failed to make an extensive enough post-trial investigation to ensure the witness had not discussed substantive matters with that off-camera third party. These issues raised questions about whether the witness may have been looking at documents, testifying from her memory, or being fed answers by the off-camera party. This would all be important if she were testifying in the courtroom. A witness is generally not allowed to testify from a document, and certainly is never allowed to be fed answers by third parties.
While VTC or other technologies may be useful in the courtroom, the time for their routine and daily use in the courtroom may not yet be upon us.