The remote appearance craze has made serious inroads to federal criminal trials potentially undermining a key right of the accused. Modern technology allows witnesses across the globe to connect via video conference to U.S.-based counsel and courtrooms, bringing convenience, efficiency, and potentially the forfeiture of rights under the Sixth Amendment Confrontation Clause, which guarantees a defendant “the right … to be confronted with the witnesses against him.” Last month, in United States v. Baldwin the Seventh Circuit, addressing a Confrontation Clause objection by convicted Ponzi-schemer Shawn Baldwin, held that when the defendant opted not to travel to London to be physically present at the pretrial deposition of the government’s star witness, he waived his right under the Confrontation Clause to examine the witness face-to-face at trial. The witness, who appeared in London after refusing to travel to the United States to testify at trial, was deposed via live video feed by the government and defense counsel from a courtroom in Chicago. The court granted the government’s motion to conduct the deposition upon a finding of “exceptional circumstances” under Rule 15 of the Federal Rules of Criminal Procedure, a rule originally intended as a means for only the defense to obtain and preserve evidence. Although Baldwin objected to the Rule 15 deposition entirely, Baldwin’s counsel also expressed a preference to conduct the deposition remotely from Chicago in the event the district court permitted the deposition to go forward. The Seventh Circuit concluded that by expressing a “clear [] preference to remain in Chicago,” Baldwin waived his right to cross-examine the witness in person. In the age of remote appearances, counsel’s willingness to conduct a Rule 15 deposition remotely can result in a waiver of a defendant’s right to cross-examine a witness in person under the Confrontation Clause, at least in the Seventh Circuit.
- Prosecutors Embrace a Rule Originally Intended for the Defense
Pretrial depositions generally are disfavored in criminal cases, but Federal Rule of Criminal Procedure 15 permits depositions in “exceptional circumstances” for purposes of preserving evidence for trial. Courts consistently have held that a moving party demonstrates “exceptional circumstances” by showing (1) materiality – the anticipated testimony is exculpatory or inculpatory – and (2) unavailability – the witness is unable or unwilling to attend trial after a good faith effort by the moving party to obtain the witness’s presence. Courts generally have found foreign witnesses, who are beyond their subpoena power and refuse to or cannot travel to the United States, “unavailable” so long as the party seeking the deposition provides more than vague assertions concerning unavailability. No affidavit is required to support assertions of unavailability in the Second, Fifth, Seventh, or Eleventh Circuits, which in practice has meant that “unavailability” can be satisfied by email exchanges in which the witness’s counsel relays their client’s refusal to appear at trial. Declining to require a sworn statement of unavailability may permit more “unavailable” witnesses to testify pretrial, further eroding a defendant’s right to confront their accuser.
Rule 15 did not always permit the government to take depositions of unavailable witnesses and originally was intended to aid the accused in preserving pretrial testimony to defend their case. Two years before the Rule was finalized in 1944, the Supreme Court made unfavorable (unpublished) comments about a draft proposal permitting the government to take pretrial depositions. The final draft Rule nonetheless included a section authorizing pretrial depositions by the government, which the Supreme Court rejected in its entirety without comment. It was not until a provision of the Organized Crime Control Act of 1970 authorized the government to take depositions in organized crime cases that Rule 15 was amended to permit government depositions.
In 2012, Rule 15 was amended again to add subsection (c)(3), which permits the deposition of a witness who is outside the United States to be taken without the defendant’s presence, upon five case-specific findings: “(A) the witness’s testimony could provide substantial proof of a material fact in a felony prosecution; (B) there is a substantial likelihood that the witness’s attendance at trial cannot be obtained; (C) the witness’s presence for a deposition in the United States cannot be obtained; (D) the defendant cannot be present for certain specific reasons (the host country will not allow it, the defendant is in custody, or the defendant is out of custody but no reasonable conditions exist to ensure the defendant’s appearance if he is permitted to travel); and (E) the defendant can meaningfully participate in the deposition through reasonable means.” Rule 15(f) lays out that “an order authorizing a deposition … does not determine its admissibility,” although admission at trial often is the end goal. A rule once intended for the defense to preserve evidence that may be unavailable at trial now allows the government the opportunity to preserve testimony of foreign witnesses outside the presence of defendants to aid in their prosecution.
- Rule 15 and the Confrontation Clause: When Presence Matters
A foreign deposition may be authorized under Rule 15, but the taking of the deposition can pose practical difficulties. The parties may need to formally request a foreign government’s procedural assistance to conduct a deposition through “letters rogatory,” but help is not guaranteed and foreign governments may refuse to cooperate. Moreover, for logistical reasons and from a foreign relations standpoint, a defendant may not be able to be present at the deposition. Rule 15(c) allows for a defendant’s absence at a deposition upon certain findings, but whether a deposition outside the presence of the defendant violates Confrontation Clause rights is a separate inquiry.
In 2004, in Crawford v. Washington, the Supreme Court held that the applicable Confrontation Clause test is whether the accused was given the opportunity to cross-examine the declarant. The Crawford holding revised the Court’s interpretation of the Confrontation Clause, which had focused on the reliability of the statement. Justice Scalia, writing for the Court in Crawford, made clear that cross-examination is required regardless of whether a statement is deemed reliable by a judge. Consistent with Crawford, the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses. The right to face-to-face confrontation is not absolute. In Maryland v. Craig, the Supreme Court recognized a narrow exception pursuant to which witnesses may testify via one-way closed-circuit television, permitting that one-way video (allowing the defendant to see the witness, but preventing the witness from seeing the defendant) is “necessary to further an important state interest.” The “important state interest” in Craig was to protect a child victim of sexual abuse from having to testify in front of her abuser. Craig’s “important public policy” exception to face-to-face confrontation is the only exception that federal appellate courts have recognized except for in the Second Circuit, where in United States v. Gigante, the court allowed for two-way video testimony at trial that meets the exceptional circumstances standard (used for Rule 15). In contrast to the Second Circuit, the Eighth, Ninth, and Eleventh Circuits, and several state supreme courts all have held that confrontation requires face-to-face confrontation.
In the Rule 15 context, defendants generally get to confront witnesses face-to-face, but Baldwin demonstrates an important loophole: If counsel attends the deposition remotely, the effect of that decision can be to waive the right to face-to-face confrontation as to that witness entirely.
- Warnings from the Seventh Circuit
In Baldwin, the Seventh Circuit held that Baldwin waived his Confrontation Clause challenge to the admission of the government’s star witness’s video deposition at trial, despite the fact that no face-to-face confrontation had taken place, because a “Confrontation Clause objection premised on his absence from the Rule 15 deposition … would be nonsensical” given that counsel attended remotely. The Seventh Circuit first analyzed Baldwin’s objections to the Rule 15 deposition and held that the district court did not abuse its discretion in finding that “exceptional circumstances” existed under Rule 15(a)(1) where the government represented that its key witness, who was beyond the subpoena power of the United States, was “substantially unlikely” to testify at trial.
The Seventh Circuit went on to address Baldwin’s challenge to the deposition on the ground that he was not physically present, in violation of Rule 15(c)(2), focusing on a statement Baldwin’s counsel made at a hearing. When asked by the district judge whether the parties “would be able to work out” conducting the deposition in London with everyone else in Chicago, defense counsel responded, “If your Honor is inclined to grant the [Rule 15] motion, that would be my preference.” The Seventh Circuit interpreted this statement as an “explicit preference to remain in Chicago,” despite the conditional preface and concluded that Baldwin waived his right to be physically present under Rule 15(c)(2). The Seventh Circuit went on to conclude that defense counsel’s statement, coupled with a failure to object to the admission of the deposition recording at trial, waived Baldwin’s Confrontation Clause challenge as well. The court referenced precedent holding that “no Confrontation Clause violation [exists] when a district court admits a properly conducted Rule 15 deposition,” but acknowledged that in those cases the defendant was physically present at the deposition. The Seventh Circuit concluded, however, that Baldwin’s waiver of his right to face-to-face confrontation made this “a distinction without a difference,” warning that a defendant cannot “waive[] his Rule 15 right to be present without understanding its future Confrontation Clause implications.”
- The Erosion of Confrontation Clause Guarantees?
The Baldwin case reveals how Rule 15 depositions, particularly for foreign witnesses who can easily demonstrate “unavailability,” may erode Confrontation Clause guarantees as more practitioners and courts rely on remote depositions. Whether the Seventh Circuit’s interpretation of defense counsel’s statements as a waiver of face-to-face confrontation was unduly harsh is a matter only the Supreme Court can now decide, but the decision serves as a reminder to defense counsel to insist on face-to-face confrontation wherever possible, especially when it comes to remote proceedings. Other than in the Second Circuit, the federal courts of appeals generally have interpreted the Confrontation Clause to require face-to-face cross examination, and counsel should be wary of giving up that important right.