NYS Public Health Legal Manual: A Guide for Judges, Attorneys ...

NEW YORK STATE PUBLIC HEALTH LEGAL MANUAL § 1.126
in court. As long as a statute does not specifically foreclose or otherwise
control the use of remote appearances, the courts “may fashion
necessary procedures consistent with constitutional, statutory and
decisional law” to permit remote appearances. People v. Wrotten, 14
N.Y.3d 33, 37-38 (2009) [upholding video trial appearance of witness
in a criminal case who was too ill to travel to New York from
California, notwithstanding the existence in the CPL of statutes
authorizing video appearances for vulnerable child witnesses and
criminal defendants and no statutes addressing video appearances
for other witnesses].
Remote appearances in criminal cases do not violate the Confrontation
Clause. United States Constitution, Sixth Amendment; New
York Constitution, Article I, section 6 [“In any trial in any court
whatever the party accused shall be allowed to appear and defend in
person and with counsel as in civil actions and shall be informed of
the nature and cause of the accusation and be confronted with the
witnesses against him or her.”]. Courts have permitted video appearances
where a fact-specific analysis of a particular case shows that a
denial of “physical, face-to-face confrontation” is “necessary to further
an important public policy” and “the reliability of the testimony
is otherwise assured.” People v. Wrotten, supra, 14 N.Y.3d at 39,
quoting Maryland v. Craig, 497 U.S. 836, 850 (1990). The Court of
Appeals in Wrotten upheld a live two-way video appearance by a
witness as “reliable”—because it preserved all the other elements of
the confrontation right, including testimony under oath, opportunity
for contemporaneous cross-examination, and the opportunity for the
judge, jury and defendant to view the witness’s demeanor. Id. And
the public policy requirement was satisfied notwithstanding that the
public policy was not codified in statute. Id. at 39. The Court of
Appeals concluded: “We agree that the public policy of justly
resolving criminal cases while at the same time protecting the wellbeing
of a witness can require live two-way video testimony in the
rare case where a key witness cannot physically travel to court in
New York and where, as here, defendant’s confrontation rights have
been minimally impaired.” Id. at 40.
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