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STATE of Louisiana v. Yousef HAMED
Relator, Yousef Hamed, seeks review of the trial court's ruling granting the State's “Motion to Allow Witness to Testify by Zoom.” Relator contends that the trial court's ruling violates his right to confront his accuser. For the reasons which follow, we vacate the trial court's March 29, 2021 order granting the State's motion to permit a prosecution witness to testify via video-conferencing, and we remand for an evidentiary hearing consistent with this opinion, and for further proceedings.
On April 21, 2019, the Jefferson Parish District Attorney filed a bill of information charging defendant, Yousef Hamed, with second degree kidnapping. On March 11, 2021, the State filed a Motion to Allow Witness To Testify By Zoom, requesting that the witness, M.S., be permitted to testify at relator's trial by Zoom after a hearing by the trial court.
The trial court conducted a hearing, and granted the State's motion subject to certain conditions. The March 29, 2021 minute entry of the hearing provides in part, “State's Motion to Allow Witness to Testify by Zoom -- GRANTED, with stipulations.” The minute entry also provides, “The Court ordered that the Witness’ zoom connection must be tested prior to trial. The Court ordered that the Witness’ connection/location be stable and not disrupted in any type of fashion. The Court ordered that the location be as if she was sitting in the courtroom testifying.”
In his application, Mr. Hamed provided a copy of the minute entry, but did not provide a transcript of the hearing. According to the minute entry, the hearing on the motion was held via Zoom. The only person sworn was the interpreter for the defendant. No one else was administered an oath, nor was any evidence admitted.
LAW and ANALYSIS
The absence of a transcript generally prevents a reviewing court from a complete consideration of the validity of the trial court's ruling. La. U.R.C.A., Rule 4-5 C; La. C.Cr.P. art. 912.1 C(1); City of Baton Rouge v. Plain, 433 So.2d 710 (La. 1983). Without a transcript, the reviewing court is generally unable to determine arguments made to the trial court by the State as to why the witness will be unavailable to testify in person, and the opposing arguments by defendant; whether any evidence in support of or against the State's Motion to Allow Witness to Testify by Zoom was admitted; and whether the trial court gave reasons for granting the motion, particularly as required by Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990); Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988); Kentucky v. Stincer, 482 U.S. 730, 748, 749–750, 107 S.Ct. 2658, 2669–2670, 96 L.Ed.2d 631 (1987); State v. Hoff, 19-475 (La. 06/26/19), 275 So.3d 871, 872; State v. Vallo, 13-1369 (La. 1/10/14), 131 So.3d 835; State v. Luckey, 16-494 (La. App. 5 Cir. 2/8/17), 212 So.3d 1220; and State v. Lewis, 04-1074 (La. App. 5 Cir. 10/6/05), 916 So.2d 294, 300-301.
The minute entry, however, shows that no witness was placed under oath, and that no other evidence was admitted. The requisite findings and determinations which must be made by a trial court before allowing testimony of an out-of-court witness against a criminal defendant cannot be made without evidence to support such findings. Further, the conditions and procedures required by the trial court, albeit appropriate, are alone insufficient. Therefore, there could have been no affirmative factual finding, based on properly admitted evidence, that the requirements of Craig and other case authorities have been satisfied, and that the State has met its burden.
In Craig, the United States Supreme Court addressed the issue of whether the Confrontation Clause precluded a child witness in a child abuse case from testifying against a defendant at trial outside the defendant's physical presence, via one-way closed circuit television. Although the Craig Court acknowledged that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact, the Court recognized that it has never held that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial. Id., 497 U.S. at 844, 110 S.Ct. at 3163. Rather, “the Confrontation Clause reflects a preference for face-to-face confrontation at trial, a preference that must occasionally give way to considerations of public policy and the necessities of the case.” Id., 497 U.S. at 849, 110 S.Ct. at 3165. That the face-to-face confrontation requirement is not absolute does not, of course, mean that it may easily be dispensed with. Id., 497 U.S. at 850, 110 S.Ct. at 3166. The right of confrontation “(1) insures that the witness will give his statements under oath—thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the ‘greatest legal engine ever invented for the discovery of truth’; [and] (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.” Id., 497 U.S. at 846, 110 S.Ct. at 3163; California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970).
The Court in Craig concluded that “a defendant's right to confront accusatory witnesses may be satisfied absent a physical face-to-face confrontation at trial: (1) only where denial of such confrontation is necessary to further an important public policy; and (2) only where the reliability of the testimony is otherwise assured.” Id. [Emphasis added.] The requisite finding of necessity to further an important public policy must be a case-specific one. Id., 497 U.S. at 855, 110 S.Ct. at 3169. The trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify. Id. [Emphasis added.] Although face-to-face confrontation is not an absolute constitutional requirement, it may be abridged only where there is a case-specific finding of necessity. Id., 497 U.S. at 855, 110 S.Ct. at 3170. The burden is on the State to make an adequate showing of necessity. Id., 497 U.S. at 855, 110 S.Ct. at 3169. “[W]e hold that, if the State makes an adequate showing of necessity, the State interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant.” Id.
In Luckey, supra, this court applied the first of the two Craig requirements to a case in which the out-of-court testimony was given not by a child, but by a witness testifying from a correctional facility in north Louisiana via Webex, an online video-conferencing application comparable to Zoom. This court found that the State did not make any showing of necessity, and the record revealed no grounds upon which the district court could have reasonably reached the conclusion that denial of confrontation is necessary to further an important public policy. Luckey, 212 So.3d at 1229. Given that the U.S. Supreme Court determined that Maryland's interest in protecting the well-being of child abuse victims “may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court,” this court declined to find that the State's interest in “a slightly swifter resolution” of the case rose to the level of an important public interest that would justify the denial of confrontation. Id. at 1229-1230, citing Craig, 497 U.S. at 853, 110 S.Ct. at 3167. [Emphasis in original.] Because the defendant was denied his right to a “face-to-face” confrontation, because the State failed to advance any important state interest, and because the district court failed to make a case-specific finding of necessity as required by Craig, this court found that the district court's decision to permit the witness to testify via video-conferencing, even subject to cross-examination, violated the defendant's Sixth Amendment Confrontation Clause rights. Luckey, 212 So.3d at 1230.
In Hoff, supra, the trial court required that seven conditions be met during video-conferencing of the perpetuation of testimony of a dying witness in advance of trial to assure reliability and effective confrontation.1 The defendant applied to the Louisiana Supreme Court for a supervisory writ to prevent video-conferenced testimony in order to confront the prosecution witness face-to-face at trial. The Court declined to grant the writ requested by the defendant, but issued this instruction to modify the trial judge's primary reliability condition, as underscored:
We grant the defendant's application to modify the first condition under which the district court authorized testimony by simultaneous broadcast as follows: “that the witness can see the defendant and the person who is questioning the witness after that person identifies himself, and that the defendant and the opposing attorney and trier of fact can see the witness and his responses at all times.”
While we modify the district court's ruling in this manner, we offer no opinion now without benefit of a full appellate record as to whether the procedure authorized by the district court will ultimately violate the Confrontation Clause.
In granting the writ in part, the Louisiana Supreme Court provided that this, the first of the trial court's conditions, including the Court's underscored additions, is a threshold requirement to assure reliability. Even then, the Court emphasized that there was no inference that such conditions would necessarily satisfy the Confrontation Clause, and that the ultimate decision of constitutionality would be determined on review of the full record of the case.
Hoff is distinguishable from the present case in that the motion granted by the trial court allowed video-conferencing of testimony on direct and cross-examination for the purpose of perpetuation of the testimony of a dying witness “for possible later use at trial,” and the trial court required, among other conditions, that the testimony occur at least 60 days in advance of the trial. The trial court also found as fact that the witness, a stroke victim in an Ohio nursing home, “was present at the time of the incident,” and that “the witness will never be able to come to court, and his time is limited and declining․”2
In the present case, however, the State's motion would allow testimony via video-conferencing during the trial. This necessarily requires great care by the trial court to assure that video-conference testimony of a remote witness in the presence of the jury is reliable and assures fair and effective confrontation. The trial court should, therefore, establish additional pre-trial procedural requirements it deems necessary to assure a genuine and effective cross-examination of the remote witness.
Thus, the trial court must determine at a pre-trial evidentiary hearing that: (1) denial of face-to-face confrontation is necessary to further an important public policy, and that the alleged necessity applies specifically in the trial of this case; and (2) the reliability of the video-conferenced testimony can and will be procedurally assured, as in Hoff. The burden is upon the State to show an adequate assurance of both of these requirements by a preponderance of evidence, and the trial court must establish conditions which assure an untainted process for examining the remote witness.
The minute entry of the trial court's March 29, 2021 hearing indicates an absence of testimony and of introduction of any other evidence at the hearing to support the indispensable Craig, supra, findings. In the absence of any evidence from which the necessary findings of fact can be made, the trial court's ruling and pursuant admission of video-conference testimony of an out-of-court prosecution witness at trial do not meet the standards set by Craig, supra, Hoff, supra, and Luckey, supra. We therefore vacate the trial court's ruling, and remand for an evidentiary hearing consistent with the foregoing, and for further proceedings.
1. In Hoff, the trial judge, William C. Credo, III, ordered that seven conditions be met during video-conferencing of the witness’ perpetuated testimony for “possible later use at trial.” Those conditions were:1) that the witness can see the defendant and the person who is questioning the witness after that person identifies himself, and that the defendant and the opposing attorney and trier of fact can see the witness and his responses at all times;2) that the witness be sworn in both in Ohio and in Division “E” prior to proceeding;3) that the use of the Spontania program that is installed in court be used and that the program not buffer or be interrupted to any large degree;4) that if presented at trial, either by transcript or live video, the trier of fact be given the iPads used in Court or copies of the transcript used in place of the video if agreed to by both State and Defense;5) that the hearing impaired equipment be used, if applicable, during any proceeding;6) that the perpetuation of testimony at the preliminary hearing be conducted at least 60 days before the trial of this matter and that the State and Defense be allowed sufficient time to obtain transcript and/or video for use at trial; and7) that the attorneys contact Aimee Bourgeois of the Judicial Administrator's staff to arrange a specific date and time when the parties, the Court and the out-of-state witness can be present for the hearing.This court denied defendant's writ application. The Louisiana Supreme Court also denied the writ as requested, but granted a writ only to modify condition #1 (as underlined above), which we conclude makes mandatory this condition at a minimum. Condition #2 is also advisable in every case. The remaining conditions (or additional ones) may or may not apply in this or in other cases.
2. While the reasons given by the trial court were compelling, there was no suggestion by the Louisiana Supreme Court as to whether the trial court's findings of fact satisfied the first requirement of Craig's two-prong test, i.e., that testimony by the out-of-court witness furthered an important public policy.
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Docket No: NO. 21-K-167
Decided: August 18, 2021
Court: Court of Appeal of Louisiana, Fifth Circuit.
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