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Score one for the real thing.
The New Mexico Court of Appeals has decided that video conference testimony violates a citizen’s right to confront an accusing witness – unless some necessity keeps the witness from showing up in person.
The opinion by Chief Judge Roderick Kennedy comes in a DWI case in which the lab analyst from the State Laboratory Division was allowed to testify about the blood results via a two-way video conference, over the objection of the accused, Vernard Thomas Smith, 44, of Farmington.
The trial judge permitted the testimony, but the Appeals Court said – once again – that his decision was wrong.
SMITH: Objection to video testimony upheld
The constitutional right to confront a witness generally guarantees a face-to-face meeting, the court said, and if there’s a departure from that standard, it must be to further an important public policy and must be supported by findings by the trial court.
As in another case that addressed telephone testimony, “the witness’s convenience or the convenience of his employer are not situations that demonstrate necessity,” the opinion said.
The crime lab’s analysts are part of a system in which testimony is part of the job description, it said.
Case law recognizes a difference between virtual and real testimony, said the opinion, joined by Judges Michael Vigil and Michael Bustamante.
A 2012 Court of Appeals opinion authored by Vigil, State v. Chung, said essentially the same thing. That ruling faulted the trial judge for permitting video-conference testimony by the State Crime Lab and citing the state’s financial crisis as a factor, despite the lack of evidentiary support for that claim.
Both cases were from San Juan County in the 11th Judicial District.
The Supreme Court initially agreed to review the Chung decision but this month quashed the order in which it said it would do so.
The court in Vernard Smith’s case said the judge’s error in allowing the witness to testify by video conference wasn’t harmless.
“There is a reasonable possibility that the blood test result influenced the jury’s decision,” the opinion said.
The Smith opinion quotes from the New Mexico case that reached the U.S. Supreme Court, Bullcoming v. New Mexico.
“(I)n jurisdictions in which it is the acknowledged job of analysts to testify in court about their test results, the sky has not fallen. State and municipal laboratories make operational and staffing decisions to facilitate the analysts appearance at trial,” the Bullcoming opinion says. “Trial courts liberally grant continuances when unexpected conflicts arise.”
Kennedy also wrote a 2011 opinion reversing a conviction in a child abuse death based on confrontation issues stemming from the court’s admission of a medical report without requiring the presence of the Lubbock medical examiner who decided the death was a homicide.
That court ordered a new trial for Leroy Jaramillo, who was convicted at trial for the 2005 death of a child who had been in his temporary custody at a Clovis hotel.
Doctors involved in the child’s autopsy didn’t testify, so a supervisor not involved in the report preparation went instead. The Appeals Court said the defense was denied a meaningful opportunity to cross-examine the witness.
The retrial is now scheduled for December 2013 in Clovis before 9th Judicial District Judge Stephen Quinn. Prosecutors this month asked for and obtained a certificate and subpoena to compel the attendance of an out-of-state witness, online court records show.
— This article appeared on page A1 of the Albuquerque Journal
Reprint story -- Email the reporter at ssandlin@abqjournal.com. Call the reporter at 505-823-3568
