Case o' The Week: Ninth feeling Confrontational - Laron Carter and Video Witness Testimony

The Ninth, happily, demands The Chair.

United States v. Laron Carter, 2018 WL 5726694 (9th Cir. Nov. 2, 2018), decision available here.

Players: Decision by Judge Bybee, jointed by Judge Gould and DJ Hernandez. Admirable victory for former Fed. Def. of San Diego, Inc. AFD Ben Coleman.

Facts: Carter went to trial on sex trafficking charges. Id. at *1. A witness named “J.C.” testified against Carter via video because she was seven months pregnant and reportedly unable to travel. Id. (J.C. was, by trial, an adult). Id. The government also suggested a Rule 15 depo of J.C. mid-trial, but conceded that it could not guarantee Carter’s attendance at the deposition. Id. 

  Over Carter’s objection the district court permitted J.C.’s video testimony. Id. at *2. The government did not introduce evidence from J.C.’s doctor that she could not travel. Id. 

  During her video testimony, J.C. could not see well and made an ambiguous identification of Carter. Id. Carter was convicted and sentenced to 40 years. Id. at *3.

Issue(s): “Carter contends that permitting J.C. to testify against him remotely by two-way video, rather than in person, violated his Sixth Amendment right to confront the witnesses against him.” Id.

Held: “We agree. Criminal defendants have a right to ‘physical, face-to-face confrontation at trial,’ and that right cannot be compromised by the use of a remote video procedure unless it is ‘necessary’ to do so and ‘the reliability of the testimony is otherwise assured.’ Maryland v. Craig, 497 U.S. 836, 850 . . .  (1990). Because alternatives were available for obtaining J.C.’s testimony that would have preserved Carter’s right to physical confrontation, the use of a remote video procedure was not necessary in this case. We therefore vacate Carter’s convictions on the . . . counts involving J.C. and remand to the district court for resentencing on the remaining counts.” Id.

  “The Supreme Court has not decided whether Craig’s standard applies in these circumstances, and until now we have applied Craig only in the context of 18 U.S.C. § 3509, a statute enacted in direct response to Craig that permits child witnesses to testify by two-way video . . . . We now make clear that a defendant’s right to physically confront an adverse witness (whether child or adult) cannot be compromised by permitting the witness to testify by video (whether one-way or two-way) unless Craig’s standard is satisfied. And that standard is a stringent one; the use of a remote video procedure must be reserved for rare cases in which it is ‘necessary.’” Id. at *4 (internal quotations and citations omitted).

Of Note: This important case of first impression applies Craig’s strict Confrontation Clause standards to adult witnesses. Id. (Previous authority had addressed minor witnesses). Judge Bybee pens a scholarly and thoughtful analysis of the high standards demanded by the Confrontation Clause – and along the way, speculates that the Supreme’s Craig decision may not have survived Crawford. See id. at *4 & n.3.

  Carter is now a lead Confrontation Clause case, and a must-read when confronting Rule 15 depos or video testimony.

How to Use: On appeal, the government scrambled for the refuge of “plain error” review, arguing that Carter did not seek a continuance or severance. Id. at *3 & n.2. 

  Judge Bybee is blunt: this argument “has no merit.” Id. 

  Carter specifically objected at trial, asserting Confrontation Clause violations. He wasn’t then also obligated to suggest “other strategies for how the government could introduce evidence against him.” Id.

   Tuck footnote two away, as a welcome and pointed reminder that it is not our job to fix AUSA errors.

                                               

For Further Reading: DOJ’s new A.G, Matthew Whitaker, is a lawyer who has not been confirmed by the Senate. He has also jumped ahead of the DAG in spite of the DOJ’s succession plan. 

  Are federal prosecutions during Mr. Whitaker’s administration legal? For an interesting discussion of this fascinating question, see article here. 

Attorney General Matthew Whitaker

   
Mr. Whitaker, admittedly, may be uninterested in the Judiciary’s views on this issue -- he has bemoaned the Supreme Court’s “bad ruling” in Marbury v. Madison. See NYT article here.

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

Image of a witness stand from https://www.outsidethebeltway.com/eyewitness-testimony-dont-believe-your-eyes/

Image of Mr. Matthew Whitaker from https://wp-media.patheos.com/blogs/sites/577/2018/11/MatthewWhitaker.jpg

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