On June 22, 2020, the Michigan Supreme Court issued its decision in People v Jemison, finding that a forensic analyst’s two-way, interactive video testimony violated the defendant’s state and federal confrontation rights.
Jemison was convicted of one count of first-degree criminal sexual conduct. The facts of the case involved a rape kit sent to a lab in Utah for DNA testing. The Michigan State Police then compared the lab’s findings with the DNA data stored in its database, identifying an association with defendant’s DNA. Over the defendant’s objection, the trial court allowed the forensic analyst to testify by video at trial. On appeal, Jemison argued that he was denied the right of confrontation when the trial court allowed the expert’s video testimony rather than his presence in the courtroom.
As outlined by University of Michigan Law Professor Richard Friedman in a recent Confrontation Blog post, the decision has several notable aspects. The case clearly involved testimony, albeit video testimony rather than in-court testimony. Once testimony was involved, the confrontation right was triggered. An essential aspect of this right is face-to-face confrontation. Since that was not provided, there was a violation.
The fact that this was an expert rather than a fact witness was of no consequence; the court reasoned that both are witnesses against the defendant for purposes of the confrontation right. Likewise, expense was not a satisfactory justification for a “constitutional shortcut.” The court noted that a cost-saving justification could have perverse consequences, whereby the prosecution uses an out-of-state analyst to save money and then point to expense as a reason for not providing face-to-face testimony.
The court also reasoned that Maryland v Craig applies only to the specific facts it decided—a child victim may be permitted to testify against the accused by means of one-way video or similar process when the trial court finds that the child needs special protection. The court noted that while the later-decided Crawford v Washington didn’t overrule Craig, it took out its legs. Instead Crawford made clear that for testimonial evidence, the face-to-face confrontation requirement may be dispensed with only when the witness is unavailable and the defendant had a prior chance to cross-examine the witnesses. Applying Crawford, the court concluded that the defendant had a right to face-to-face cross-examination: the forensic analyst’s evidence was testimony, the expert was available, and the defendant did not have a prior chance to cross-examine him.
Despite the case’s timing—argued on March 5, 2020, just before the coronavirus broke out in Michigan—the opinion does not suggest that the greater appeal of remote testimony in a pandemic would have changed the result here. But as Professor Friedman, who appeared as amicus in the case, notes in his blog, it’s not “implausible that at some point the technology and our knowledge of the impact of remote confrontation will get to a point where we can say that remote confrontation is a satisfactory substitute for actual, face-to-face confrontation.” But Jemison reveals that today is not that day.
For further perspectives on Jemison, watch for our 2020 Criminal Law Update this fall.