Posted: July 17, 2013
Unless you’ve been hiding under a rock, you know that prosecutors in the recent George Zimmerman trial decided to present the testimony of Scott Pleasants, Zimmerman’s former college professor, via Skype. You also know that, after the prosecutor had finished questioning the witness, and it was time for Zimmerman’s lawyer to cross-examine, users of the social media platform who were watching the trial on television bombarded (“Skype-bombed”) the professor’s Skype account with “calls,” disrupting the trial and making national headlines. Some media outlets wondered aloud about the prospect of Skype-like technology being used in future trials.
There are some rather esoteric but nonetheless interesting legal issues that arise from the use of technology like Skype in a jury trial. But perhaps what’s most interesting thing about the Zimmerman episode is what it teaches about social media, and that often-used technology industry catch-phrase –”convergence.”
Legal Issues Impacting Skype Testimony
First, the legal issues –
The biggest legal issue potentially impacting testimony over Skype or other technology offering a live video feed is hearsay. Although the word “hearsay” has made its way into the popular vernacular, it’s really a purely legal term that means a statement made “out-of-court” – meaning the literal, physical confines of a court proceeding – that is offered in court for the purpose of proving the truth of the facts contained in the statement. For instance, suppose a police report includes the statement of a witness to an accident scene who, at the time the policeman arrived at the scene, told the officer, “the blue car had the green light, and the brown car had the red light.” That witness’s statement is an “out-of-court” statement. If the driver of the brown car sues the driver of the blue car for damage caused by the accident, the blue car driver would likely want to offer the witness’s statement made to the police officer as evidence that the blue car driver had the green light. But, it’s an “out-court-statement” offered to prove the truth of the facts contained in the statement, which makes it classic hearsay. Many non-lawyers nowadays use the word “hearsay” as a synonym for “rumor.” They’re not quite the same thing, but courts generally don’t like hearsay for the same reason people don’t like rumors – they can be unreliable. So, a statement falling within the definition of legal hearsay is generally not admissible as evidence in a trial, unless it falls within one of the many, many exceptions to the rule against hearsay.
The Pleasants testimony during the Zimmerman trial was certainly hearsay, and any testimony offered over Skype or other video (live or not) in any trial is likely, in almost every conceivable circumstance, hearsay. But it’s not particularly unusual that a court would allow some sort of video testimony. One widely-employed exception to the hearsay rule is where the witness who is making the statement is “unavailable” at trial, and the statement to be offered is previous sworn testimony by the witness, where all the parties to the lawsuit had the opportunity to cross-examine the witness during his previous testimony (like in a deposition). (Federal Rule of Evidence 804(b)(1) or state law equivalent). This kind of testimony is very commonly used in civil trials.
The Pleasants testimony during the Zimmerman trial offered a slight twist on this, however, as it involved a live video feed. Since it wasn’t “former testimony,” it wouldn’t have fallen within the exception offered by Rule 804(b)(1). But there is another broad exception offered by Rule 807 (formerly 804(b)(5)). This is a sort of “catch all” exception, where a judge is convinced that the out-of-court statement has “equivalent circumstantial guarantees of trustworthiness” so it is okay for the jury to hear the statement and consider it. The “guarantees of trustworthiness” that a court might have considered with regard to the Pleasants testimony are that the witness could be seen by the jury during his testimony, his demeanor and manner of testifying could readily be observed, the court administered an oath to him and he swore to testify truthfully, even though he was not physically present in the courtroom, both sides had the opportunity to question him, and the defense (against whom the testimony was offered) was able to subject him to a thorough and sifting cross-examination. The “catch-all” exception to the hearsay rule does not depend on witness unavailability. So, the Federal Rules of Evidence (or similar state rules) certainly include a general exception to the hearsay rule that, under certain circumstances, would potentially allow an out-of-court witness to testify in court via a live video feed, just like Pleasants did.
In criminal cases, the other big legal obstacle to video testimony is the Confrontation Clause of the Sixth Amendment of the United States Constitution, which says that, “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” This simply means that a criminal defendant has the right to see the witnesses again him face-to-face, the idea being that a defendant should be afforded the opportunity to look witnesses against him in the eye. There are literally hundreds of years of jurisprudence interpreting the Confrontation Clause, and certainly there have been minor exceptions made in special cases where witnesses have been allowed to testify by video. For instance, in cases where there are very young victims involved and courts seek to shield them from further trauma that may be caused by the “glare” of public, courtroom testimony, courts have allowed some bend in the Confrontation Clause and employed video testimony. But, generally speaking, the Confrontation Clause would in most cases preclude Skype-like testimony against a defendant in a criminal case. One must assume that, in the Zimmerman case, the defense simply acquiesced to the Pleasants testimony, as it seems clear that a very strong Confrontation Clause objection existed but was not asserted.
There are at least two other known cases, besides Zimmerman, where witnesses were allowed to testify via Skype. One was a Georgia state court criminal case in 2011, in which a judge allowed a witness for the defense, located in Texas, to testify via Skype, based on the defendant’s assertion that he could not afford the travel costs associated with bringing the witness to Georgia. The prosecution objected, based on the Confrontation Clause, but the judge ruled that the Confrontation Clause was inapplicable because the testimony was offered by the defendant, not against him. It is not clear whether the prosecutor lodged a hearsay objection.
The other known case occurred in February 2013, where an Illinois man was seeking to extend a protective order against his estranged wife, but he was bedridden and unable to physically appear in court. The court allowed him to appear by Skype. The Confrontation Clause wasn’t an obstacle because this wasn’t a criminal case. It’s not clear if there was anyone opposing the motion for extension, much less whether anyone asserted a hearsay objection. Nonetheless, the live video testimony was allowed, and relied upon by the court.
All of this is to say that, although the Zimmerman-trial-Skype-snafu got loads of media attention, the idea of video testimony during a jury trial, and even testimony via Skype, is not as unique as it may seem at first glance. It’s been done before, and the rules governing admissibility of evidence at trial, at least generally, contemplate it.
“Convergence” and Lessons Learned
So, if the Zimmerman Skype testimony is not without precedent or particularly novel, who cares? Perhaps the reason you should care is what the episode teaches us about “convergence.” The idea of technological convergence has been much discussed over the past decade and can be defined differently depending on context. But a good, broad definition is “previously separate technologies such as voice (and telephony features), data (and productivity applications), and video that now share resources and interact with each other synergistically.” Your smart phone – which likely includes within its functionality things like texting, e-mail, social media, directions, weather and, yes, don’t forget, a telephone, is a good example. Whether convergence is a good thing or a bad thing may be a meaningless debate because, like it or not, it is happening.
What the Zimmerman Skype episode teaches us is that convergence is something that we ought to seriously think about in our rush to make use of the latest available technology. I don’t know for a fact, but I suspect what happened is that the prosecutors approached Zimmerman’s lawyers about this particular witness appearing by video, to avoid the expense and inconvenience of bringing him all the way to Florida for a short snippet of testimony that wasn’t absolutely the most critical piece of testimony in the trial. The defense lawyers probably perceived some strategic advantage in the witness not physically appearing in the courtroom – maybe that the jury might just ignore his testimony altogether – so they agreed. Then one of the lawyers probably said something like “Hey, my teenager uses this video calling technology called Skype, and it’s free, so what if we use that?” The rest of the parties to this conversation, not appreciating that Skype is more of a social media platform than a video conference technology, all thought this was a great idea. So the plan proceeded. What none of the lawyers or the judge apparently appreciated, however, was the potential for the social media aspect of Skype to take over the proceeding once the professor’s Skype username was broadcast on the other technology that was in play – cable television (a rather blasé and antiquated technology, some might say, but technology nonetheless). It was really this apparent failure to appreciate the risk of combining these two technologies that led to something quite remarkable – the ability of non-participants in the proceeding, not present in the building where the proceeding was taking place, to completely disrupt the proceeding and cause a national spectacle of sorts; AND, to do it all with virtual anonymity.
When viewed this way, one might begin to understand that this kind of risk could play out in a variety of contexts. Thinking of offering a live video feed to your next shareholders’ meeting or users’ conference? Want to conduct your next earnings call by video conference? Mulling over the cool suggestion by your VP of sales to do your next monthly, nationwide sales meeting over Skype? Have you thought about those confidential reports that you were reviewing online, via your iPad, during your latest flight to the West Coast, making use of the airplane’s wi-fi system?
None of these are bad ideas. In fact, they may all be very good ideas, taking advantage of advances in modern technology to make it easier for us all to do our jobs.
But beware. Combining technologies creates risk. You should give a few moments of thought to your use of technology and how you couple the various technologies that you use, and if you’re responsible for an organization, you should give some thought to the impact of “convergence” on your organization, and the risks that might be lurking around the corner. You certainly don’t want to be the person responsible for next round of national news stories about the technology snafu heard round the world.