Matter of State of New York v. Robert F.
Matter of New York v. Robert F. Decided May 14, 2015
Issue before the Court: Whether it was error to permit an expert witness to give rebuttal testimony at a MHL Article 10 civil confinement dispositional hearing via live, two-way video conference. At this hearing, the judge decides whether confinement is appropriate after a jury has determined, beyond a reasonable doubt, that the offender has a “mental abnormality” that predisposes him to the commission of sexual offenses.
Held: It was error. “The Supreme Court has the discretion to utilize live, two-way video testimony pursuant to its inherent power, but only where exceptional circumstances so require or when all parties consent.” However, the error was harmless because of “overwhelming” evidence that confinement was appropriate.
CAL Observes: In People v. Wrotten, 14 N.Y.3d 33 (2009), cert. denied 131 S.Ct. 1020 (2011), the Court of Appeals affirmed after the trial court permitted an elderly and infirm complainant to give trial testimony via live two-way video conferencing from California. The Court stressed that trial courts have discretion to employ “innovative procedures” where “necessary to carry into effect the powers and jurisdiction” possessed by the court. Several statutes provided for non-live testimony under other circumstances but were inapplicable to Wrotten. Nevertheless, the Court found that the existing statutory authority was not exclusive. Nor was the Confrontation Clause a bar.
Despite Wrotten’s language about innovation and judicial discretion, Robert F. shows that the trial court’s discretion is narrow. In Robert F., the expert witness had already testified extensively in person at the disposition hearing, and was being asked to return – presumably from upstate to Brooklyn – on “short notice” to comment on a statement made by the defendant at the hearing. Moreover, the MHL separately permits electronic appearances at preliminary, probable cause hearings – with only a showing of “good cause.” The Court of Appeals held that the short notice and the expert’s unspecific work commitments were not enough to permit the expert to appear by video.
Robert F. does not discuss a question explicitly reserved in Wrotten: whether “two-way live video” alone satisfies the Confrontation Clause's “face-to-face meeting” requirement. Cf. Maryland v. Craig, 497 U.S. 836 (1990) (live testimony via one-way closed-circuit television is permissible, provided there is an individualized determination that denial of “physical, face-to-face confrontation” is “necessary to further an important public policy” and “the reliability of the testimony is otherwise assured.”) However, the Robert F. holding suggests that the Court is unlikely to approve two-way live video alone.