Can prosecution witnesses testify by video? Sometimes.
Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire
In most cases, witnesses in criminal cases may not testify by video. This is particularly true for the prosecution as the defendant has a confrontation clause right to confront their accusers, and the appellate courts have held that that right includes the right to cross-examine witnesses face-to-face in the courtroom. The legislature, however, has provided that under certain circumstances, child witnesses may testify by video from somewhere else in the courthouse in a different room from the defendant. In the recent case of Commonwealth v. Lamont, the Superior Court upheld the defendant’s convictions for sexual assault charges and held that the trial court properly allowed the child complainant to testify contemporaneously via video.
The Facts of Lamont
In 2019, the complainant told her grandmother that the defendant, her grandmother’s boyfriend, had molested her. The complainant lived near the grandmother’s house, and the defendant would sometimes babysit the complainant while the complainant’s mother was at work. The grandmother confronted the defendant. He admitted to touching the complainant but claimed it was an accident. He promised to apologize. (This is a good example of why it is best to just remain silent when confronted with criminal allegations. Claiming that touching someone inappropriately was an accident is generally not going to help your case.)
After the defendant apologized to the complainant, the complainant told the grandmother the defendant had in fact molested her several times rather than just once. Again, the grandmother confronted the defendant. This time the defendant just stood there. The grandmother left for work, and the defendant left the home with all his belongings. The grandmother then contacted the police.
The defendant called the grandmother and begged her not to press charges. He apologized, threatened to commit suicide, and claimed he did not know why he molested the victim. (Again, this is incredibly damaging for a criminal case.) The grandmother put the call on speakerphone, and the complainant’s mother and her best friend overheard the conversation.
Prosecutors inevitably filed serious sexual assault charges against the defendant. Despite confessing to everyone, he proceeded by way of jury trial. Prior to the jury trial, the Commonwealth file a motion under 42 Pa.C.S. § 5985 notifying the defendant of its intention to have the complainant testify via video. The trial court held a hearing granting the Commonwealth’s motion and granted it. The complainant testified at trial via video. The jury convicted the defendant of serious Megan’s law offenses, and the defendant appealed.
Did the trial court properly let the complainant testify by video?
The defendant raised a number of issues on appeal, but the most interesting was his challenge to the trial court’s decision to allow the child complainant to testify via video. Pennsylvania law sometimes allows for child complainants to testify in a room other than the courtroom and have that testimony transmitted contemporaneously via video.
Prior to allowing a child victim to testify via video, however, the court must hold a hearing in open court or in camera and allow the parties to present evidence. Based on the evidence, the court must make a decision as to whether testifying either in an open forum in the presence of the fact finder or in the presence of the defendant will result in the child complainant suffering serious emotional distress that would substantially impair the child victim’s ability to reasonably communicate. In making this determination the court may observe the child complainant inside or outside the courtroom and/or hear testimony from a parent or custodian. Serious emotional distress does not just mean that the child will be upset. It does have a specific definition which deals with whether it will impair the child’s ability to communicate.
In this case, the defendant objected to the video testimony and argued that the complainant’s fear was not testifying in front of the defendant. Instead, the defense argued that the complainant’s real fear was that no one would believe her. The defendant claimed the complainant’s hesitance to testify in front of him came from speaking about a traumatic event, not from having to testify in open court, and therefore that the Commonwealth did not show the complainant would be unable to reasonably communicate in his presence.
The Superior Court’s Decision
The Superior Court approved of the trial court’s decision to allow the contemporaneous video testimony. The Superior Court relied on the record from the pre-trial hearing in the courtroom at which the mother and complainant testified. The Court noted the mother’s testimony regarding the changes in her daughter’s behavior after disclosing the incidents. Specifically, the mother testified that her daughter, the complainant, used to be involved in numerous sports and that she no longer participated in any of them. She said the complainant’s temperament changed from “very quiet” to “attacking” and explained the complainant had been nervous about testifying in front of the defendant. She stated the complainant had a “sigh of relief” when the mother told her she could testify by video.
Further, the Superior Court noted the victim’s testimony explaining that it was important when she gave a statement previously that the defendant was not there because it made it easier for her to focus on her testimony and not on the defendant.
In making its decision, the Superior Court noted that the trial court had the opportunity to observe the changes in the complainant’s demeanor and body language when she thought of testifying in front of the defendant. It believed the trial court had the best opportunity to assess the complainant’s state of mind in the context of the entire circumstances surrounding the proceeding before making its decision. The Court found the trial court’s on-the-record observations supported its finding that the defendant’s presence would have caused serious emotional distress and impaired the victim’s ability to communicate in the courtroom. Further, the Court found that the defendant suffered no prejudice because the trial court instructed the jury that video testimony is not out of the ordinary. Therefore, the Court affirmed the defendant’s conviction.
It is important to note that the video testimony must be contemporaneous and subject to cross-examination. Pre-recorded testimony is almost never allowed, and the defense must still have the opportunity to cross-examine a complainant. The video must also work - if there are issues with the connection, the quality of the audio or video, or the ability for the jury to hear and see the complainant, then that could be the basis for a challenge to this type of testimony, as well. Ultimately, this rule undermines a defendant’s right to confrontation. The whole purpose of subjecting witnesses to cross-examination live in the courtroom is to see if they will stick to their story when they have to face the accused. Indeed, that is the very definition of confrontation, and allowing witnesses to testify to a camera rather than the jury makes it easier for them to lie. Nonetheless, for now, the courts have approved of this type of video testimony for at least some juvenile alleged victims.
Facing criminal charges or appealing a criminal case in Pennsylvania? We can help.
Philadelphia Criminal Lawyer Zak T. Goldstein, Esquire
If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.
