The COVID-19 pandemic continues to pose many unprecedented challenges for the judicial system. We previously wrote about one particularly vexing issue: How should courts deal with a nonparty witness in a criminal trial who ordinarily would need to travel to court to testify? Generally, the Confrontation Clause and related laws require witnesses in criminal trials to testify in person. But can a court really force nonparty witnesses to endure a significant risk of contracting COVID-19 in order to testify in person for a case in which they have no personal stake? This was the subject of a motion recently decided by the Southern District of New York in United States v. Akhavan, No. 20-CR-188 (JSR), 2021 WL 797806, (S.D.N.Y. Mar. 1, 2021).
In Akhavan, affectionately known as the "Pot Fraud" case, Arnold & Porter represented Visa and a company employee who was subpoenaed to testify as a third-party witness in the case. The witness lived in San Francisco and had a number of preexisting medical conditions that put him at an increased risk of severe illness from COVID-19. In an effort to meet the needs of the case, while still protecting the health of the witness, Arnold & Porter filed a motion asking that the witness be allowed to testify remotely in San Francisco by live two-way video, a procedure previously approved in United States v. Donziger, No. 11-cv-691, 2020 WL 5152162 (S.D.N.Y. Aug. 31, 2020), for similar reasons.
The government took no position on the motion but the defendants vigorously opposed it, attacking the constitutionality of the procedures and asserting numerous other arguments.
Judge Rakoff sided with Visa and the witness. In its written opinion, the court held that the witness met the Second Circuit standard for two-way video testimony set forth in United States v. Gigante, 166 F.3d 75 (2d Cir. 1999). There, the Court of Appeals held that the same rules governing Rule 15 depositions under the Federal Rules of Criminal Procedure also applied to permitting a witness to testify via two-way video, namely when a witness is "unavailable" and "upon a finding of exceptional circumstances." Id. at 81-82; see Akhavan, No. 20-cr-188 at *20–21. Thus, if Visa's third-party witness satisfied the Rule 15 factors, remote testimony was permissible. According to the court, it was.
The court held that the third-party witness could not "travel across the country without subjecting himself to a substantial risk of contracting COVID-19." Akhavan, No. 20-cr-188 at *23. Judge Rakoff reasoned that, given the personal health risks, "contracting COVID-19 could well result in [the witness's] serious illness or death." Id. Moreover, the court held that "the need to prevent [the witness's] serious illness or death (and to protect his family) offer[ed] exceptional circumstances" to overcome the general rule for in-person criminal testimony under Rule 15. Id. As such, it found that Visa's third-party witness "demonstrated that he [was] unavailable to testify" and that "exceptional circumstances support[ed] his request to testify by two-way video." Id. at *24.
Judge Rakoff's decision in Akhavan is sure to be invoked by future trial witnesses seeking protection from the significant risks still posed by COVID-19. Indeed, Judge Rakoff announced this yesterday that one of the trial's jurors recently tested positive for COVID-19, but that an alternate will replace her and the trial will continue. Ultimately, these developments are stark reminders that despite positive news about vaccine rollouts, trial judges around the country must continue to grapple with striking the right balance between criminal defendants' constitutional rights and ensuring trial participants' safety.
*Emily Shire contributed to this blog post. Ms. Shire is a graduate of Yale Law School and is employed at Arnold & Porter's New York office. She is not admitted to the practice of law in New York.
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