Opinion
SC-2023-0465
08-18-2023
EX PARTE Cody BRAGG (In re: Cody Bragg v. State of Alabama)
Stephen D. Boyd of Boyd Law LLC, Livingston, for petitioner.
Petition for Writ of Certiorari to the Court of Criminal Appeals (Sumter Circuit Court: CC-17-57; Eddie Hardaway, Jr., J.; Court of Criminal Appeals: CR-21-0361).
Stephen D. Boyd of Boyd Law LLC, Livingston, for petitioner.
Submitted on certiorari petition only. SELLERS, Justice.
WRIT DENIED. NO OPINION.
Wise and Stewart, JJ., concur.
Parker, C.J., concurs specially, with opinion.
Cook, J., concurs specially, with opinion.
PARKER, Chief Justice (concurring specially).
This case concerns whether two-way video testimony in a criminal trial is permitted under the Confrontation Clause of the Sixth Amendment to the United States Constitution. For the reasons I explained in Ex parte Rodriguez, 380 So.3d 434, —— (Ala. 2023) (Parker, C.J., dissenting), I believe that the balancing approach of Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), has been effectively overruled by the textual-historical approach established in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Other judges have recognized the incompatibility of these two approaches. See United States v. Cox, 871 F.3d 479, 492-95 (6th Cir. 2017) (Sutton, J., concurring); People v. Jemison, 505 Mich. 352, 355-56, 952 N.W.2d 394, 395-96 (2020). As Justice Scalia explained in his dissent in Craig, "[w]e are not free to conduct a cost-benefit analysis of clear and explicit constitutional guarantees, and then to adjust their meaning to comport with our findings." 497 U.S. at 870, 110 S.Ct. 3157 (Scalia, J., dissenting).
Craig and Crawford, however, involved the question whether a particular infringement of the confrontation right was nevertheless permitted by an exception. The present case involves a more basic, threshold inquiry: whether a particular method of testimony infringes the confrontation right in the first place. At present, courts are split on whether two-way video testimony infringes the confrontation right. Some have held that this method can meet all the requirements of face-to-face confrontation. See United States v. Gigante, 166 F.3d 75, 79-82 (2d Cir. 1999); United States v. Benson, 79 F. App’x 813, 820-21 (6th Cir. 2003). Others have held that it cannot. See United States v. Bordeaux, 400 F.3d 548, 552-55 (8th Cir. 2005); United States v. Yates, 438 F.3d 1307, 1312-15 (11th Cir. 2006); State v. Rogerson, 855 N.W.2d 495, 498-506 (Iowa 2014); United States v. Carter, 907 F.3d 1199, 1206-08 (9th Cir. 2018). And this question -- whether high-quality, technologically advanced, two-way video testimony infringes the confrontation right solely because the witness is not physically present -- is worthy of serious consideration.
I concur in denying certiorari review because petitioner Cody Bragg does not address this threshold question; he instead proceeds under Craig, which I believe has been overruled. But future litigants should address it. And when they do, they should examine "the right of confrontation at common law," Crawford, 541 U.S. at 54, 124 S.Ct. 1354.
COOK, Justice (concurring specially).
I concur with denying certiorari review of petitioner Cody Bragg’s assertion that the testimony of two witnesses via two-way video during his trial violated his right to confrontation as guaranteed by the Sixth Amendment to the United States Constitution and Article I, § 6, of the Alabama Constitution. Although Judge Minor’s dissent in Bragg’s direct appeal below provides insightful commentary on this issue, see Bragg v. State, 390 So.3d. 578, —— (Ala. Crim. App. 2023), Bragg’s certiorari petition nevertheless fails to satisfy the requirements of Rule 39, Ala. R. App. P., and is thus due to be denied.
I write separately, however, because I believe our Court will eventually be called upon to .decide this issue in a future appropriate case. In his special concurrence in this case, Chief Justice Parker provides a thorough discussion of the relevant case-law that may be invoked in such cases. Although I am not yet ready to declare that Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), has been "effectively overruled" by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), like Chief Justice Parker suggests, 390 So.3d at ——, I nevertheless echo his invitation for future litigants to address whether a particular method of testimony infringes on a criminal defendant’s right to confrontation in the first place.
I note that recently, in Ex parte Rodriguez, 380 So.3d 434 (Ala. 2023), this Court was confronted with a confrontation-clause issue when, during the COVID-19 pandemic, witnesses were permitted to wear a mask during their trial testimony. In that case, Chief Justice Parker dissented to denying certiorari review of that issue, explaining that a witness being permitted to wear a mask during his or her trial testimony violates a criminal defendant’s right to confrontation under the Sixth Amendment to the United States Constitution. In support of his contention, Chief Justice Parker dove deeply into the history and meaning of the original text of the federal confrontation clause and its purpose, which I believe could be helpful in a future case in which we are called upon to decide whether live-video testimony violates a defendant’s right to confront the witnesses against him or her during a criminal trial.
I have no fixed opinion on the outcome of a future case that raises this threshold issue. However, in addressing the issue, future litigants should be prepared to discuss both (1) whether such live-video testimony violates the Confrontation Clause of the Sixth Amendment to the United States Constitution and (2) whether such testimony violates Article I, § 6, of the Alabama Constitution. It is possible that the Alabama Constitution provides an independent reason to exclude such testimony. It is our duty to determine the meaning of the Alabama Constitution, which may be the same or may be different from the construction of the United States Constitution, even where the language is very similar.
In evaluating arguments on the meaning of the confrontation provisions in either Constitution, I believe that we must always begin with the original public meaning of the text (that is, the meaning at the time it was adopted). The original public meaning should not change over time. However, the facts to which the text are applied are constantly changing, and, going forward, courts will be forced to apply the same text to new situations, including the use of new technology in the courtroom. In applying the confrontation provisions of both Constitutions to new facts, courts may need to harmonize those provisions with other constitutional rights -- for instance, the right to a speedy trial, the right to ensure that the jury has adequate facts to fairly decide the case beyond a reasonable doubt, the due-process rights of the defendant, the rights of the victims, and the rights of all parties to a functioning court system. With these observations in mind, I make the following suggestions to members of the bench and bar concerning the handling of live-video testimony in criminal trials.
The confrontation provisions of both the United States Constitution and the Alabama Constitution apply, by their terms, to criminal trials and not civil trials. Thus, civil trials may have a lower threshold for the admission of video testimony. However, I note that civil trials must still comply with, among other constitutional requirements, the due-process protections in both Constitutions. Recently our Court added language to Rule 43(a), Ala. R. Civ. P., to allow for the limited use of live-video testimony in civil jury trials (without a stipulation) and included an extensive Committee Comment regarding safeguards for such use. Despite the differences in constitutional language pertaining to civil and criminal trials, a court faced with a request to allow live-video testimony in a criminal trial may wish to consult the language in this rule and the corresponding Committee Comments (among other authority) for assistance in how to regulate the use of such testimony -- if it is allowed at all.
First, any party wishing to use live-video testimony should provide as much advance notice as possible. See, e.g., §15-25-2, Ala. Code 1975 (addressing the proper procedures, including providing notice, for taking of a video deposition of a victim or witness to a physical, sexual, or violent offense). Live-video testimony has the possibility of unfair surprise and therefore raises due-process and fairness concerns.
Second, live-video testimony must have appropriate safeguards to ensure that the video is high quality and that there is no opportunity for inappropriate coaching of a witness. See, e.g., Rule 30(b)(4), Ala. R. Civ. P. (requiring certain provisions to be made so that a video-deposition recording will be "accurate and trustworthy and that the witness will be treated fairly"); Rule 16.6(d), Ala. R. Crim. P. (cross-referencing civil rules for depositions); and Committee Comments to Amendment to Rule 43, Ala. R. Civ. P., Effective November 23, 2020 ("Contemporaneous transmission of testimony must be undertaken with appropriate safeguards to ensure that the witness understands and appreciates the oath he or she has taken to testify truthfully and so that the parties have a full and fair opportunity to perceive and examine the witness and the fact-finder can reasonably assess the witness’s competency, candor, and truthfulness. Safeguards must be adopted that ensure accurate identification of the witness and that protect against influence by persons present with the witness."). If this is not the case, the opposing party should put his or her objections on the record in detail to allow appropriate review on appeal.
Third, if a party wishes to use live-video testimony (and there is no prior stipulation regarding the use of that testimony), he or she should make every effort to prove any foundation for such testimony by suitable evidence before the admission of the testimony (for instance, affidavit testimony (not mere argument) supporting the necessity of such video testimony). The parties should also ensure that any proof is made on the record and therefore available for appellate review. See Bragg, 390 So.3d at —.
Fourth, the use of a recorded, video deposition is generally preferable to live-video testimony. See, e.g., Committee Comments to Amendment Rule 43, Ala. R. Civ. P., Effective November 23, 2020 ("Ordinarily depositions, including video depositions, provide a superior means of securing the testimony of a witness who is beyond the reach of a trial subpoena or of resolving difficulties in scheduling a trial that can be attended by all witnesses. Deposition procedures ensure the opportunity of all parties to be represented while the witness is testifying."). Such a video deposition will provide far more notice to all parties and may provide a stronger argument regarding compliance with either of the constitutional confrontation provisions.
Again, I have no fixed opinion regarding whether live-video testimony can meet the confrontation requirements in either the United States Constitution or the Alabama Constitution. However, if a trial court chooses to allow live-video testimony, applying these suggestions may assist in im- proving the experience of the parties and our courts and may provide better protections to criminal defendants.