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Post-Pandemic Realities: Remote Testimony

By: Megan Patituce

The upheaval of the court system due to COVID-19 cannot be understated.  While some aspects of the system have adapted, other aspects continue to be navigated.  One issue promising to become a focal point is the use of remote testimony.  Although appellate decisions directly relating to pandemic testimony are still months away, pre-pandemic decisions are instructive.  Recently, both the Second and Eighth Districts have issued decisions addressing remote testimony.

The right to confront witnesses is fundamental and protected by the Sixth Amendment to the United States Constitution.  The United States Supreme Court has, however, acknowledged the occasional need to deviate as a result of public policy concerns and specific case necessities.  In Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), SCOTUS upheld a conviction which had been obtained after a child had testified via closed-circuit television.

In State v. Howard, 2d Dist. Montgomery No. 28314, 2020-Ohio-3819, the Second District grappled with the remote testimony of a key prosecution witness.  The witness, who testified from Las Vegas, suffered from severe medical complications, which made travel difficult and dangerous.  In affirming the trial court’s decision to permit the remote testimony, the Second District stressed the continued importance of a case-by-case analysis but noted that the protection of the witness’s well-being strongly implicated the necessity element for consideration.

In In re H.P.P., Jr., 8th Dist. Cuyahoga No. 108860, 108861, 2020-Ohio-3974, the Eighth District upheld a conviction obtained as a result of a witness’s remote testimony.  The Eighth District found that even if the trial court erred in allowing the remote testimony despite insufficient justification, the constitutional error can be harmless.  In this case, the Eighth District found the error to be harmless beyond a reasonable doubt.

As the defense bar wades through the novel challenges arising as a result of the pandemic, it is imperative that we review long-standing precedent as well as that filtering down therefrom.  Those cases will be the foundation upon which we will be called to defend constitutional rights in situations unlike any we have faced previously.

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