Bad day. Your client just got a subpoena from the government to testify as a third-party witness in a federal criminal trial in New York. The client, however, lives in Los Angeles and (quite understandably) hates the idea of flying across the country, quarantining in a hotel, and then flying back. She's 52 and of course is worried about her own health, but she's also worried about infecting her two kids and her partner, not to mention her slightly grumpy 83-year-old dear ol' dad. You know that the usual rule under the Confrontation Clause and related laws is that witnesses have to show up and testify in person in criminal cases. You tell this to your client, and she is even grumpier than Dad. Surely there has to be some way around this usual rule, especially during this time-the worst public health crisis in a century. Reasonable minds must prevail! So you call the defendant's lawyer to plead for mercy. But she wastes little time in providing her answer: "No dice." If the government wants your witness, she must testify in person, in court, in New York, and that's that.
Courts across the land have had to reckon with COVID-19-imposed limitations when conducting all sorts of routine court business (arraignments, hearings, trials, and the like), and in large part have done a pretty admirable job under unusually challenging circumstances. But what about the almost iron-clad requirement that witnesses testify in person in a criminal trial? Generally, under the Constitution's Confrontation Clause, a criminal witness must be physically present to testify. See United States v. Gigante, 166 F.3d 75, 80 (2d Cir. 1999). Rule 15(a) of the Federal Rules of Criminal Procedure does provide a very narrow exception to the general rule-a prospective witness may be deposed to preserve trial testimony under "exceptional circumstances and in the interests of justice." See Gigante, 166 F.3d at 81. Does a disinclination to travel due to COVID-19 count, especially when college kids were allowed to bound off to school and millions ventured out to visit relatives over Thanksgiving?
The Rule 15 bar for deposing criminal witnesses is high, and examples of courts relying on Rule 15 because of COVID-19 so far are relatively rare. Helpfully for you, however, one recent case out of the Sothern District of New York, United States v. Donziger, No. 11-CV-691 (LAK), 2020 WL 5152162 (S.D.N.Y. Aug. 31, 2020), tackled this precise question, threading the needle between a defendant's Confrontation Clause rights and the COVID-19 pandemic. The court's solution-as perhaps we should have expected after living our last ten months in endless Zoom meetings (and cocktail hours)-was to have the testimony presented through two-way video testimony.
In Donziger, the government moved the court to let a trial witness who lived in Texas testify via live, two-way video. The court wrote that two-way video testimony would be ok under Rule 15 "upon a finding of exceptional circumstances and when it furthers the interests of justice." Id. at *2. Specifically, "in determining whether to permit testimony by two-way video, courts in this Circuit have applied the rules used in connection with Rule 15 depositions and allowed video testimony only when (1) the witness's testimony is material; (2) the Government has made good-faith and reasonable efforts to obtain the witness's presence and is unable to do so (that is, the witness is 'unavailable' within the meaning of the case law), and (3) allowing testimony by such means furthers the interests of justice." Id. at *2 (internal quotation omitted).
The court found all three factors satisfied. Most importantly for our poor client in LA, the court readily accepted that COVID-19 concerns were a darn good basis for an "exceptional circumstances" finding: It found that the witness was unavailable given his health situation "and the concomitant health risk posed by COVID-19 if he were forced to travel and stay in New York for a prolonged period of time." Id. at *2-3. Luckily for you (and your client), it granted the government's motion for the witness to testify by live, two-way video conference.
More good news: Other courts are starting to follow Donziger's lead in letting criminal trial witnesses testify by video. See United States v. Davis, No. 19-101-LPS, 2020 WL 6196741, at *2-3 (D. Del. Oct. 22, 2020) (citing Donziger and similarly allowing witnesses to appear by videoconference under Rule 15 given the exigencies of COVID-19). We hope that this bodes well for your client-and the public good.
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