Vt. R. Crim. P. 26.2
Vt. R. Crim. P. 26.2
Reporter's Notes
Rule 26.2 is added to provide for video conference testimony in criminal proceedings, upon agreement of the parties and approval by the court. In contrast to the provisions of V.R.C.P. 43.1 and V.R.P.P. 43.1, the present amendment makes no provision for receipt of video testimony over defendant's objection, and absent express waiver, in recognition of the Sixth Amendment and Article 10 rights to confrontation and cross examination accorded to the accused, subject only to the limited exception authorized by V.R.E. 807 (providing for testimony of victim who is a minor or person with a mental illness, or an intellectual or developmental disability based on findings of substantial risk of trauma and impairment of ability to testify).
The rule is not intended to address issues of remote participation and presence of criminal case participants (including the defendant) generally, as those are governed by other provisions of law, including the constitutionally premised V.R.Cr.P. 43 and Administrative Order No. 38. See also State v. Grace, 2016 VT 113, ¶¶ 12-19, 204 Vt. 68, 165 A.3d 122.
When confrontation rights are applicable, the appellate cases simply do not permit the court as a general rule to authorize remote testimonies without consent, or over the defendant's express objection. The context is determinative, ranging from the trial itself, State v.Tribble, 2012 VT 105, 193 Vt. 194, 67 A.3d 210; New Mexico v. Truett, 376 P.3d 184 (N.M. 2016), to pre-trial suppression hearings, State v. Grace, 2016 VT 113, to violation of probation merits hearings. State v. Eldert, 2015 VT 87, 199 Vt. 520, 125 A.3d 139 (citing State v. Austin, 165 Vt. 389, 685 A.2d 1976 (1996) and discussing "good cause" standard for denying probationer confrontation rights); see also Crawford v. Washington, 541 U.S. 36 (2004); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).
In Tribble, the Court noted that most jurisdictions have recognized the validity of an attorney's waiver of the Right to Confrontation on a defendant's behalf via stipulations for admission of evidence, where the attorney's waiver is made for tactical reasons, and with a defendant's record awareness and agreement. However, such waivers by attorney are consistently held to be ineffective, where the defendant dissents from or objects to the attorney's decision. 2012 VT 105, ¶¶ 14, 15. In Tribble, the defendant had clearly expressed objection to his attorney's stipulation to admission of a "preservation" deposition of an expert witness at trial in lieu of testimony in person. The Court observed that there are a number of cases establishing that valid attorney waiver of confrontation rights may occur if the waiver is stated by the attorney on the record in the presence of the defendant, with no objection voiced by the defendant. The Court explained, however that it had "found no authority to support the proposition that counsel can stipulate to the admission of out-of-court testimony thereby waiving defendant's Confrontation Clause rights in the face of defendant's express objection." Id. ¶ 37. The Court found "no doubt" that the defendant dissented from his attorney's decision to stipulate to admission of the deposition testimony, and that admission of the testimony was thus error. Id. ¶ 38. The Court did not expressly reach the issue of whether a defendant's silence in the presence of an attorney's record stipulation to waiver of confrontation rights would constitute a waiver on the defendant's part, or whether a personal colloquy with a defendant would be required to establish waiver. State v. Koveos, 169 Vt. 62, 732 A.2d 722 (1999), held that a defendant could not argue that his Confrontation rights were denied when he had specifically agreed to the process which resulted in admission of a pretrial deposition without live testimony of the witness.
Subdivision (a) authorizes provision of witness testimony via video conference by agreement of the parties and with approval of the court.
Subdivision (b) defines contemporaneous video conference.
Subdivision (c) prescribes the timing and required content of a notice of intent to provide testimony of a witness via video conference at trial. As a general matter, notice of intent to provide such testimony must be given to the court no less than 14 days prior to the proceeding in issue. By agreement of the parties, and court finding of good cause, a shorter period of notice may be recognized, provided that any advance notice must otherwise comply with any particular notice requirement imposed by V.R.Cr.P. 26. In addition to other prescribed content, the notice must include a signed waiver by the defendant of any claims as to that component of confrontation rights related to the physical presence of the witness providing video-conference testimony.
The advance notice requirement where the testimony of a trial witness via video conference is contemplated is driven by a number of important considerations, not least among them the paramount interest of a defendant to confront state witnesses at trial and the significance of waiver of the right to the physical presence of the witness, and the interests of parties and the court in clarity of procedure, where a case is to be scheduled for fixed jury selection and trial dates. The advance notice seeks to avoid surprise, and potential disruption of a trial set for fixed dates, and permits reasonable scheduling of the testimony of the remote witness, consistent with the progress of the trial. Advance notice also serves to permit the details and circumstances of the remote witness' testimony to be settled, and parties' reasonable expectations as to such known in advance, facilitating fair and efficient conduct of the trial. And it serves to provide opportunity for meaningful colloquy by the court with the defendant prior to trial as to waiver of the right to physical presence of the witness, and the consequences of such waiver. The advance notice requirement of subdivision (c) does not apply to remote witness testimony given by agreement other than at trial. However, all other requirements of the rule do apply as pertains to such testimony.
Subdivision (d) provides that before approving witness testimony via video conference, the court must address the defendant directly in open court and determine that the defendant understands the nature of the confrontation rights related to presence of the witness that are being waived, and that the waiver is knowing and voluntary. See Tribble, 2012VT 105, and related cases. The specific elements of the court's colloquy with the defendant are not prescribed by the rule. At a minimum, per paragraphs (d)(1) and (2), the court must inquire as to whether the defendant had adequate time to discuss waiver and agreement with counsel-including the pros and cons of permitting testimony of a witness by video conference. The court must advise the defendant that the waiver is a personal decision, that an attorney cannot make that decision without the defendant's express agreement, that the waiver and agreement is final and binding, and that, once given and accepted by the court, may not be withdrawn absent good cause as provided in (g).
Subdivision (e) provides that the party seeking to produce the testimony of the witness via video conference is responsible for coordinating the technology into the courtroom and bears the expenses for audio/visual arrangements. However, given widespread employment of Webex and other technologies employed in courtrooms for remote proceedings, to the extent available, and with consent of the court, court technologies may be used in the preparation or presentation of the testimony provided by the provisions of this rule.
Subdivision (f) prescribes the specific requirements for the manner of provision of the video conference testimony, including but not limited to locations; persons authorized to be in the presence of the remotely testifying witness; ability for the participants to observe each other; and ability of counsel and defendant to consult privately during the proceeding. Under (f)(1) and (2), location of the witness and presence of any other person with the witness are as approved or determined by the court. The standards required under subdivision (f) parallel, but are not identical to, the factors that must be considered by the court under V.R.C.P. 43.1(c)(6) in determining whether to permit, require, or deny testimony by video conference.
Subdivision (g) provides criteria for the court to consider if a party seeks to withdraw from agreement for testimony of a witness by video teleconference. Establishment of good cause is required for court approval of any withdrawal. The subdivision specifies criteria to guide the court in the exercise of its discretion to grant or deny any such request to withdraw from waiver and agreement. These criteria include among other factors good cause attributable to the failure or inadequacy of the technology to be employed in the presentation of a witness's testimony.
These criteria recognize the difficulties presented in a trial on the merits of a criminal charge that has commenced before jury or judge, where jeopardy has attached, and where in reliance upon agreement and waiver for remote testimony, a party may be unable to physically produce the witness for testimony at trial. The rule entrusts the decision to grant or deny a request to withdraw from agreement for testimony by video conference to the court's discretion because that determination must be made in the presenting, case-specific circumstances, with opportunity for the parties to be heard in context of those existing case dynamics.