A trial court’s decision to let a police investigator testify in a murder trial via two-way video chat was improper and violated the defendant’s constitutional right to confront witnesses against him, the South Carolina Court of Appeals has ruled. The appeals court nevertheless allowed the defendant’s murder convictions to stand, finding that the error did not affect the outcome of the case.
Justin Johnson confessed to the fatal shooting of his son and his son’s mother in 2011. By the time of trial, one of the police investigators who had read Johnson his Miranda rights had relocated to Montana. The trial judge allowed the investigator, Mason Moore, to testify via Skype at both the trial and at a pre-trial hearing. At trial, Johnson objected to the video testimony, arguing that it violated his Sixth Amendment right to a face-to-face confrontation with any witnesses against him. The judge ruled the testimony admissible because Moore was an “ancillary” witness living 2,500 miles away.
On appeal, Judge Aphrodite Konduros noted that South Carolina courts have not specifically addressed the tension between two-way video testimony and a defendant’s rights under the Confrontation Clause. State courts have, however, recognized that modifications to the traditional presentation of testimony may be appropriate in certain situations involving vulnerable witnesses.
Like most courts that have considered the issue, South Carolina has adopted the test laid out by the U.S. Supreme Court in Maryland v. Craig, which held that the right to face-to-face confrontation under the Sixth Amendment is not absolute, but that it may only be modified “where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.”
The Craig decision involved the use of one-way video testimony in the context of a child sexual assault case. And even in such cases, South Carolina’s appellate courts have not adopted a generalized policy of permitting child victims to present testimony via video recording, instead requiring a specific case-by-case finding that a child witness will be traumatized by testifying in front of the defendant. This approach, Konduros wrote, “underscores the reluctance of the court to use methods other than live testimony except under extreme circumstances.”
The 4th U.S. Circuit Court of Appeals, which covers South Carolina, likewise has acknowledged the Craig test as the measure for considering whether two-way closed circuit testimony is permissible under the Confrontation Clause. In a 2008 ruling, it found that the interest of national security and protecting Americans from unprovoked terrorist attacks satisfied the first prong of the test, but cautioned that generalized interest in law enforcement is not enough—the Constitution requires a public interest more substantial than simply convicting someone of a criminal offense.
Other courts have generally permitted such testimony only in cases in which the witness’s health prevents him from traveling, or possibly when a witness is beyond the subpoena power of the court. The judges thus concluded, after surveying the relevant case law, that the circuit court had erred in letting prosecutors present Moore’s testimony via Skype.
“We recognize the advancements in technology permit two-way closed circuit testimony to more closely approximate face-to-face confrontation,” Konduros wrote in the court’s Jan. 31 opinion. “However, in the absence of an important public policy or at least an exceptional circumstance, modifying a defendant’s truest exercise of the Sixth Amendment right via in-person confrontation is inappropriate.”
Nevertheless, the court found that the error could not have reasonably affected the outcome of the trial, and so it allowed the convictions to stand. Although Johnson’s confession was an important piece of evidence in the case, and the state had an obligation to prove that the confession was offered voluntarily, prosecutors were able to offer live testimony by a second police investigator and recordings of the confession to satisfy that burden, the court said. Consequently, Moore’s testimony was largely cumulative to what was already before the jury.
Moore, who had moved to Montana to take a position as a sheriff’s deputy, was fatally shot in the line of duty in May 2017.
The appeals court also found that the trial court had erred by admitting pre-death photographs of the two victims, finding that prosecutors had not offered any rationale for how the photographs were relevant to establishing Johnson’s guilt, and served no purpose other than to arouse the jury’s sympathies. The court found that this error was also harmless, however.
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Appellate Defender Laura Baer of Columbia represented Johnson on appeal. Baer declined to comment on the ruling, citing the ongoing nature of the appeals process in the case.
Dick Harpootlian, a Columbia criminal defense lawyer who was not involved in the case and reviewed the decision at Lawyers Weekly’s request, praised the court’s decision regarding Skype testimony, saying that video testimony creates challenges both for jurors trying to assess a witness’s credibility and for attorneys trying to cross-examine a witness. He said that if video testimony were to become common in criminal trials, trying such cases would become something more akin to playing a video game.
“A witness in a case, his credibility is judged on a number of different aspects. One is the manner in which they testify, and that manner is three-dimensional. Jurors can notice a tapping foot or a twitching arm or all sorts of mannerisms that, in their minds, convince them that the witness is, or is not, telling the truth,” Harpootlian said. “So I think the use of Skype is fraught with danger in a criminal case. It ought to be used very sparingly, and in a situation like this, I think it’s important that the defendant has the ability to confront these kinds of witnesses.”
The full text of the opinion is available online at sclawyersweekly.com.
Follow David Donovan on Twitter @SCLWDonovan