Friday, February 20, 2015

Receiving Stolen Property, the Confrontation Clause and Skype

After Michael Gay was convicted of “receiving stolen property, misuse of credit cards, and petty theft”, he appealed. State v. Gay, 2015 WL 628390 (Court of Appeals of Ohio 2015).  He raised two issues in his appeal, but this post only examines one of them. 
The Court of Appeals begins its opinion by describing the charges and explaining how the prosecution arose:
On October 23, 2013, Gay was indicted on nine counts: three counts of receiving stolen property in violation of [Ohio Revised Code] 2913.51(A), three counts of misuse of credit cards in violation of [Ohio Revised Code] 2913.21(B)(2), and three counts of petty theft in violation of [Ohio Revised Code] 2913.02(A)(3).

The charges against Gay arose after three separate out-of-state victims discovered fraudulent charges on their credit cards, charges made in stores located in Ohio. One of the victims, Ms. Cynthia Ann Robles (`Robles’), filed a police report in Texas. The report was forwarded to detectives of the Beachwood Police Department, since several transactions occurred in the surrounding area.

An investigation by the detectives linked the fraudulent charges to reward and loyalty cards. The reward and loyalty cards were used simultaneously with the victims' credit cards. Detectives were able to track through the reward and loyalty cards that they were registered in Gay's name. Gay was then identified on security video making purchases at the stores in question, on the dates and times matching the fraudulent charges.
State v. Gay, supra.
The court also explains that
[p]rior to trial, the trial court granted the state's unopposed motion to allow the three out-of-state victims to testify via teleconference. The case proceeded to a jury trial, where all three victims testified via teleconference, using the computer program Skype. The jury found Gay guilty of all nine counts. Gay was later sentenced to an aggregate three-year prison term.
State v. Gay, supra. We will come back to the Skype testimony.
As you may know, and as Wikipedia explains,
[t]he Confrontation Clause of the 6th Amendment to the United States Constitution provides that `in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.’

Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial. The `4th Amendment makes the right to confrontation applicable to the states and not just the federal government.  The right only applies to criminal prosecutions, not civil cases or other proceedings.
The Court of Appeals then took up Gay’s Confrontation Clause argument:
[i]n determining whether the admission of testimony via teleconference at trial violated the defendant's right of confrontation, this court, in State v. Marcinick, 2008–Ohio–3553 (Ohio Court of Appeals 2008) utilized the two-part analysis from Craig and held:

To qualify as an exception, the procedure must (1) be justified, on a case-specific finding, based on important state interests, public policies, or necessities of the case and (2) must satisfy the other three elements of confrontation—oath, cross-examination, and observation of the witness's demeanor.
State v. Gay, supra.
As the Court of Appeals went on to explain, the
charges against Gay arose after three separate out-of-state victims discovered fraudulent charges on their credit cards, charges made in stores located in Ohio.

One of the victims, Ms. Cynthia Ann Robles (`Robles’), filed a police report in Texas. The report was forwarded to detectives of the Beachwood Police Department, since several transactions occurred in the surrounding area. An investigation by the detectives linked the fraudulent charges to reward and loyalty cards. The reward and loyalty cards were used simultaneously with the victims' credit cards.

Detectives were able to track through the reward and loyalty cards that they were registered in Gay's name. Gay was then identified on security video making purchases at the stores in question, on the dates and times matching the fraudulent charges.
State v. Gay, supra.
The first issue Gay raised in his appeal was his contention that “the use of teleconferencing to present witness testimony violated his right to confrontation and his right to due process.” State v. Gay, supra.
The Court of Appeals began its analysis of Gay’s argument buy explaining that
[t]he 6th Amendment to the United States Constitution provides, `[i]n all criminal prosecutions the accused shall enjoy the right * * * to be confronted with the witnesses against him.’ The Ohio Constitution, Article I, Section 10 provides that:

`[T]he party accused shall be allowed * * * to meet the witnesses face to face * * *; but provision may be made by law for the taking of the deposition by the accused or by the state, to be used for or against the accused, of any witness whose attendance cannot be had at the trial, always securing to the accused means and the opportunity to be present in person and with counsel at the taking of such deposition, and to examine the witness face to face as fully and in the same manner as if in court.’

However, in Maryland v. Craig, 497 U.S. 836 (1990), the United States Supreme Court held that while `the Confrontation Clause reflects a preference for face-to-face confrontation at trial,’ that `preference must occasionally give way to considerations of public policy and the necessities of the case.’  Maryland v. Craig, supra. 

In holding that the right to confrontation is not absolute, the court detailed a number of important reasons for that right, including (1) the giving of testimony under oath, (2) the opportunity for cross-examination, (3) the ability of the factfinder to observe demeanor evidence, and (4) the reduced risk that a witness will wrongfully implicate an innocent defendant. Maryland v. Craig, supra.

The court found, `the central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.’ Maryland v. Craig, supra.
State v. Gay, supra. 
The Court of Appeals went on to explain that
[i]n determining whether the admission of testimony via teleconference at trial violated the defendant's right of confrontation, this court, in State v. Marcinick, 2008–Ohio–3553 (Ohio Court of Appeals 2008), utilized the two-part analysis from Craig and held:

`To qualify as an exception, the procedure must (1) be justified, on a case-specific finding, based on important state interests, public policies, or necessities of the case and (2) must satisfy the other three elements of confrontation—oath, cross-examination, and observation of the witness's demeanor.’

State v. Marcinick, supra. . . .

In State v. Marcinick, this court found that the teleconferencing testimony of an out-of-country witness did not violate the defendant's right to confrontation when, in that case, these two elements were satisfied.
State v. Gay, supra.
The court went on to find that
under the specific facts of this case, allowing the three out-of-state victims to testify at trial via teleconferencing did not violate Gay's right of confrontation. The state demonstrated the unavailability of the witnesses and the admissibility of the testimony itself.

The state's motion to allow witness testimony via teleconference, filed January 1, 2014, was unopposed. Moreover, Gay did not object at trial to the out-of-state witnesses testifying via teleconference.
State v. Gay, supra.
As Wikipedia notes, the Confrontation Clause of the 6th Amendment to the U.S. Constitution is intended to ensure that the defendant in a criminal case has the “opportunity to challenge the credibility of and cross-examine the person making the statements” which implicate the defendant in criminal activity.
And as a law review article explains, the constitutionality of allowing remote video testimony is an issue courts have only recently begun to grapple with:
Concerns over face-to-face communications have now spread to the courtroom. Legal theorists worry about the deterioration of face-to-face interaction between courtroom participants. In criminal cases, a key safeguard to requiring face-to-face interaction between the defendant and a witness is the Confrontation Clause.  Generally, this right of confrontation requires that a prosecution witness giving testimony must comply with the following conditions: 1) the testimony should be under oath, 2) the witness should be subject to cross-examination, 3) the witness should be in the presence of the accused, and 4) if reasonable, the witness should be in the presence of the fact-finder.

A literal reading of the `presence’ requirement suggests that the witness and the accused be physically face-to-face in the same room.  The use of videoconference technology, however, puts a major wrench in this assumption. It is questionable whether the virtual `face-to-face’ interaction through videoconference technology sufficiently places the witness in the presence of the accused. Courts have promulgated different tolerances in allowing videoconference technology in the courtroom.
The Court of Appeals went on to note that
[w]hereas two of the victims testified under oath, Gay points out that Robles was not sworn in prior to her testimony, as required by Ohio Rule of Evidence 603:

`Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.’
State v. Gay, supra (quoting Rule 603).
The court went on to explain, however, that
defense counsel waived the oath requirement in open court and on the record with Gay's approval. . . . Furthermore, all three victims that testified via teleconference were subject to cross-examination and were observed by both the defendant and the jury throughout their testimony. Gay argues his rights were violated because one of the victims admitted during his testimony that his wife was sitting beside him. However, Gay does not provide any case law to support his contention.
State v. Gay, supra.
The Court of Appeals concluded its consideration of this issue by noting that
[f]inally, Gay's reference to the instances of `Skypebombing’ in a recent criminal case in Florida, is inapplicable here, where no evidence of `Skypebombing’ exists in the record.
State v. Gay, supra.  For these and other reasons, the Court of Appeals affirmed Gay’s conviction.  State v. Gay, supra. 

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