ASKED & ANSWERED: Monica P. Navarro on video testimony

By Steve Thorpe Legal News The legislature recently passed House Bill 4647 and, with the signature of Gov. Rick Snyder, it became Public Act 68. The legislation allows trial courts to utilize video testimony by expert witnesses and others if all parties agree. The new rule is also touted as a way to reduce the expense to taxpayers and trial participants of bringing in out-of-state experts. Professor Monica P. Navarro joined the Cooley Law School faculty full-time in 2010 and teaches Civil Procedure. Navarro also serves as the faculty advisor for the Hispanic Latino Law Society and the International Concentration at the school's Auburn Hills campus. Thorpe: In Gov. Rick Snyder's Special Message to the Legislature on Public Safety on March 7 he touted the potential savings of allowing defendants, police officers, experts and witnesses to attend arraignments, pretrial conferences and court hearings by video instead of in person. Do you expect the savings to be significant? Navarro: It makes sense to believe that there would be savings generated by reducing the travel time of witnesses. However, no one can say for sure whether the return on investment will be there without taking a hard look at the costs to get us there and the expected usage of the technology. There is no question that there will be significant costs in the continuous migration to and maintenance of an extensive video-testimony system. The costs will vary between the private and public sector. Private parties who want to use video in lieu of live testimony are often already using the requisite technology in their everyday business, so many will not have any additional start-up costs. However, that is not the case with the State. Although some courts already have the necessary technology, infrastructure costs will have to be incurred to get more courts ready to receive video testimony and there will be ongoing costs in maintaining the technology up to date. Similar expenses will have to be incurred by the State to create transmission sites, if, in fact, the technology is going to be more uniformly used in connection with defendants who are in custody. Thorpe: In the message, Snyder also said that he "fully supports" efforts by the Michigan Supreme Court to expand video conferencing technology in all trial court locations to achieve greater efficiencies. What is the current status of those efforts? Navarro: Video conferencing technology is already authorized in limited court proceedings under Michigan Court Rules, which are enacted by the Michigan Supreme Court, as well as under some statutes. As far as court rules are concerned, specifically, Rule 6.006 of the Michigan Rules of Court allows the use of video and audio in some proceedings. For example, district and circuit courts may use two-way interactive video technology to conduct arraignments, pretrial conferences, pleas, sentencing for misdemeanor offenses, show cause hearings, and other proceedings. Likewise, district courts may take expert witness testimony in a preliminary examination if the defendant is present in the courtroom or waives the right to be present. District and circuit courts may, upon a showing of good cause, also use the equipment to take testimony in evidentiary hearings, competency hearings, sentencings, and and probation revocation proceedings. At a trial, district and circuit courts may take testimony by two-way interactive video technology for a showing of good cause and with consent of both parties, if the defendant is present in the courtroom or waives the right to be present. I think it is clear that the Michigan Supreme Court very much believes in the use of technology in trial proceedings. Thorpe: All parties in a case must agree to the use of video testimony. Do you see that as a stumbling block? Why might a party object? Navarro: There are numerous reasons to object. I, for one, am a believer in face-to-face examinations whenever possible. So did our Forefathers; the Sixth Amendment to the U.S. Constitution protects an accused's right to face his accuser. It is just not the same to interact with someone, particularly an adverse witness, through a camera. Further, there are instances when the technology does not save money. One has to balance the costs of making the witness available through live testimony against many things, including the effect that video testimony might have on the fact finder, the delay that outdated technology can impose on a trials, and the potential for fraud in the process. The prospect of having a witness be fed answers by someone else outside of the camera is real. Thorpe: Proponents of the measure also say that it has security benefits, with potentially dangerous prisoners to attend hearings without leaving a secure facility. How big a problem has this been in the past? Navarro: I am not really aware of many breaks or security breaches by people in custody as a result of going to court, though I'm sure there have been tragedies in that regard. One would have to know what the statistics are to evaluate whether that could be a valid reason for the legislation. Thorpe: Does video testimony face any kind of legal challenges on appeal and do you expect that to happen? Navarro: I think the jury is still out on how much technology is too much for the U.S. Constitution to tolerate when a person faces loss of property or liberty. Though the United States Supreme Court has held that facing an accuser through video-conferencing is constitutionally appropriate under limited circumstances, it has not given carte blanche to do away with face to face confrontation altogether. So, yes, I expect legal challenges. As we speak, there is a case by the name of State of Michigan v Buie in which a man was convicted of rape after an expert for the State was allowed to testify by video. The Michigan Court of Appeals reversed the conviction on constitutional grounds arising out of such video-testimony. The Michigan Supreme Court has not issued a decision on the matter, although oral arguments were heard in November of 2011. Published: Tue, Apr 10, 2012

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