Defendants in criminal cases get to decide whether remote testimony will be allowed. That six-to-zero decision was issued Monday by the Michigan Supreme Court.
The court said video testimony can violate a defendant’s right to confront opposing witnesses. Both the U.S. and Michigan constitutions have confrontation clauses.
Kristin Lavoy is the defense attorney for a man convicted of criminal sexual conduct.
She says the decision means prosecutors can't decide to use remote testimony due to cost or convenience.
“Defendants have the right to see the person that is testifying against them, and also the jury is making credibility determinations," she says. "They need to be able to see the witness, hear what they’re saying, and how much weight to give it.”
Marquette County Prosecutor Matthew Wiese is the president of the Prosecuting Attorneys Association of Michigan. He says the decision creates problems for courts.
“The problems that it presents are basically all the things we’re dealing with right now during the COVID-19 epidemic, trying to conduct court hearings and jury trials and trials remotely,” he says.
“It’s an interesting time to have discussions about remote testimony in the light of a pandemic, but I think that their decision was very thoughtful and will be applied, I’m sure, in a lot of cases going on right now,” Lavoy says.
The lower court must go back now and review whether the video testimony might have changed the result in this case.
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