Video testimony violates Dubuque County man's right to confront witnesses, court rules 

CEDAR RAPIDS - The Iowa Supreme Court ruled Friday that witness testimony by two-way video would violate a Dubuque County man's Sixth Amendment right to confrontation at his drunken driving trial.

Zachariah Rogerson, charged in 2012 with four counts of serious injury by operating a motor vehicle while intoxicated, filed an interlocutory appeal with the court claiming the district court in allowing several witnesses to testify by two-way video conference in a pretrial motion violates his confrontation right. He argued video testimony wasn't an adequate substitute for face-to-face confrontation.

He also argued the state didn't present any special circumstances to justify remote testimony of the out of state injured witnesses in the case and lab technicians addressing the evidence.

Rogerson was involved in single car accident on Hales Mill Road and two of the four passengers injured identified Rogerson, who had a blood alcohol level of .150, as the driver, according to the ruling. The serious injuries include a shattered elbow, fractured ribs, collapsed lung, a cracked sternum and broken back.

The court discusses the fact that different case law where remote testimony has been allowed and under what circumstances such as a child victim in a sexual abuse case testifying by a one-way closed circuit television system. Justice Edward Mansfield, writing the Rogerson opinion, said since this case, Maryland v. Craig, which was 24 years ago, the U.S. Supreme Court hasn't further examined the constitutionality of remote video testimony.

Mansfield said there hadn't been the opportunity to consider the constitutionality of the new types of video technology that is available. Craig involved a one-way system where the witness couldn't see or hear the defendant but the defendant, judge and jury could see and hear the witness. The two-way system allows both the defendant and witness to see and hear each other at the same time during testimony.

Iowa also hasn't dealt with the two-way video conferencing issue but the majority of courts who have taken this up, have chosen to apply the Craig test. The two-prong test was that the state must prove that the 'denial of face to face confrontation is necessary to further an important public policy” and the 'reliability of the testimony is otherwise assured.”

The other courts reasoned that two-way videoconferencing may be better confrontation than one-way but it's virtual and 'less desirable” than in-person testimony, according to the ruling.

Mansfield said in Rogerson case the state contends two-way video is constitutionally equivalent to live, in-person confrontation and asks the court to rule the two are interchangeable. No court has gone that far to permit it simply based on the state's or government's request.

The state's proposal also doesn't address how a court in one state could hold a witness in contempt in another jurisdiction and impeachment of a witness with documents or prior statements is more 'cumbersome and less attention grabbing” when performed through video, according to the ruling.

The state in its pre-trial motion reasoned the witnesses who were involved in the car crash resided a significant distance from Iowa and had suffered serious injuries but never presented any evidence that the witnesses were unable to travel because of their injuries, according to the ruling. Under Craig and other case law, this is insufficient.

The state also didn't present any evidence to support why the Iowa Division of Criminal Investigation lab employees, who are within the state, couldn't be at the trial in-person, according to the ruling. It only cites that their testimony isn't 'accusatory” and then on appeal stated it would save time and money.

'Someday virtual electronic presence in the courtroom may become an adequate constitutional substitute for actual physical presence. But we are not there yet,” Mansfield said.

Justice Daryl Hecht, in concurring specially, said he agrees the state didn't show necessity but he doesn't agree that the two-way technology is inadequate and can't meet the constitutional objectives of confrontation. Whether a defendant's right to confrontation is protected when witnesses testify by two - way video should be based on fact determinations.

Hecht said in the future a court should be informed about the latest social science to determine if actual physical presence of a witness in a courtroom produces a 'sufficiently enhanced opportunity for confrontation when compared to presence achieved through two-way video technology.” He said the answer to this fact question is essential to determine if the difference between actual and virtual presence supports a constitutional distinction.

Hecht said he's not determining whether the court's assumptions are true or false but he would prefer to make a ruling based upon a record.

Hecht concedes that virtual presence isn't the same as physical presence but he would allow for the 'possibility that virtual presence might permit constitutionally sufficient confrontation” if reasonable precautions are taken by attorneys and enforced by the court.