Wired is reporting on the use of a live two-way video stream during testimony in the Article 32 investigations of Marines charged with murder in Haditha,Iraq. Wired does a good job of explaining the technology, but falls a bit short on the law. The hearings held for the Marines are all Article 32 investigations not courts-martial. This is a critical distinction for the law.
At an Article 32 investigation, a witness will be produced if her presence is relevant and she is reasonably available. “Reasonably available” is defined as the witness being located within 100 miles from the situs of the investigation and the “significance of the testimony and personal appearance of the witness outweighs the difficulty, expense, delay and effect on military operations of obtaining the witness’ appearance.” R.C.M.405(g)(1)(1)(A). Essentially a witness must be at the hearing unless his commanding officer determines the cost, difficulty, expense, or effect on military operations outweighs the necessity of his presence.
At a court-martial the determination is different. Under United States v. Shabazz, 58 M.J. 585 (N.M.Ct.Crim.App. 1999), remote video testimony was not allowed, as it violated the accused’s rights under the Sixth Amendment. The court in Shabazz noted some of the problems with the Video Teleconference (VTC) testimony. The most notable of the problems was the fact that it appeared that a person was talking to, or coaching, the witness while she was testifying. This also raises questions about whether she may be looking at documents or testifying from her memory. This would all be important if she were testifying in the courtroom. For a witness is, generally, not allowed to testify while referring to a document.
While VTC or other technologies may be useful in the courtroom, their time may not yet be upon us.