June 20, 2016

Supreme Court weighs in on Skype testimony, judges using Facebook

Joe Gratz


Lawyers cannot use Skype or similar services for expert witnesses testifying against a defendant, the state Supreme Court ruled Monday.

Photo Credit: Joe Gratz cc

Joe Gratz

Photo Credit: Joe Gratz cc

The ruling came after an expert witness in a murder and kidnapping trial used Skype to testify on the evidence against the defendant. The New Mexico Supreme Court ruled that since the defendant did not waive his constitutional right to confront witnesses, the testimony is invalid.

The witness was no longer in the state, however the state’s high court ruled, “Inconvenience to the witness is not sufficient reason to dispense with this constitutional right.“

The Supreme Court ruled the kidnapping case did not have enough evidence for a conviction and remanded the murder charge back to district court for a new trial.

“The United States Supreme Court has never adopted a specific standard for two-way video testimony, but we doubt it would find any virtual testimony an adequate substitute for face-to-face confrontation without at least the showing of necessity that Craig requires,” Chief Justice Charles Daniels wrote in the opinion, referring to Maryland v. Craig that affirmed the use of one-way video for testimony by the accuser in a child sex abuse case.

“A criminal defendant may not be denied a physical, face-to-face confrontation with a witness who testifies at trial unless the court has made a factual finding of necessity to further an important public policy and has ensured the presence of other confrontation elements concerning the witness testimony including administration of the oath, the opportunity for cross-examination, and the allowance for observation of witness demeanor by the trier of fact,” Daniels wrote later in the opinion.

Originally, the defense attorney said the Skype testimony would be OK, but after further consideration said it was not; the judge allowed the testimony to go forward anyway.

“With no discussion in the record between the district court and Defendant concerning his confrontation rights, there is no evidence that Defendant understood those rights or that he voluntarily agreed to waive them, and we must conclude that no intentional waiver occurred,” Daniels wrote.

Social Media

The court did not rule that the district court judge’s comments on Facebook were reason to overturn the case, but did warn members of the judiciary to avoid any semblance of prejudice.

The district court judge wrote about the case on his Facebook

During trial, the district court judge had posted, “I am on the third day of presiding over my ‘first’ first-degree murder trial as a judge.” After trial, but before sentencing, the district court judge posted, “In the trial I presided over, the jury returned guilty verdicts for first-degree murder and kidnapping just after lunch. Justice was served. Thank you for your prayers.”

The opinion says the court wouldn’t make a “bright-line ban prohibiting judicial use of social media” but warned that “‘friending,’ online postings, and other activity can easily be misconstrued and create an appearance of impropriety.”

The court also warned that any statements made on social media should be considered a public statement.