The Cat Filter Hearing and the Right to Confront Your Accusers

Posted On February 26, 2021 Charles Ramsay
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The 6th Amendment of the Constitution says that in criminal cases you have the right to be confronted with the people who have accused you of a crime—in person, live and in color, face to face. This is known as the Confrontation Clause.

Why is this important? Without this constitutional right, the prosecution and witnesses don’t have enough skin in the game. You could be dragged into court (from where you might already be sitting behind bars awaiting trial) and be convicted based on nothing more than sworn testimony on a piece of paper.

With the Confrontation Clause in mind, let’s consider the COVID-19 pandemic, which has pushed the legal system into something it may have never done otherwise: that is, the remote Zoom hearing.

The Famous Cat Filter Hearing

By meow, you may have seen the famous clip of the lawyer who couldn’t turn off his cat filter during a virtual hearing (but kept his game face on): “I’m prepared to go forward with it. I’m here live. I’m not a cat.”

As funny as this is, it underscores the point that we must be able to identify our accusers and hear their evidence directly—and to put them to their proof by asking questions in cross-examination. This is fundamental to due process and a fair trial. And it explains the legal system’s reluctance to use videoconferencing in the pre-COVID world.     

“The public health crisis, for which there is no definitive end point,” wrote the American Bar Association in late August 2020, “has spurred immediate use of videoconferencing and other technology that was not largely present in litigation or in the courtrooms.”

But it has also led to trouble: Two defendants have been given death sentences via Zoom since the pandemic began (although these were not U.S. cases). “In the criminal law context,” wrote the ABA, “a defendant’s right to confrontation is constitutionally guaranteed.” And for good reason.

The Show Must Go On

With or without a public health crisis, people will still be charged with crimes, and the Speedy Trial Clause (also in the 6th Amendment) demands that “the accused shall enjoy the right to a speedy and public trial.” It should be “speedy” because you shouldn’t be stuck in jail or have a cloud hanging over your head. We don’t have the luxury of time to wait until the pandemic is over (whenever that might be) to start hearing cases again.   

In a May 2020 post about “Zoom justice,” Brandon Draper for the Northwestern Law Review wrote how videoconferencing tools have helped to “maintain a functioning criminal justice system amid the COVID-19 pandemic,” but went on to describe two concerns: (1) speedy trials vs. jury trials and (2) speedy trials vs. the right to confront witnesses.

  1. If you want a jury trial, you might have to wait until it’s safe enough to do so in person, because “the impediments to exercising the jury right with [Zoom] technology are staggering.” The legal system may get better at how it uses technology over time, but defendants don’t have time to wait.
      
  2. If you want to confront witnesses properly, which we’ve discussed above, Draper wrote that virtual hearings compromise your right in the Confrontation Clause. How can you tell if the accuser’s testimony is any good? Or if the testimony is “being fed to him off-screen”? You probably can’t.

But this doesn’t mean all hope is lost. COVID-19 and Zoom hearings may involve the Confrontation Clause in a new way, but our focus—DWI cases—already raise many other constitutional issues, from the initial traffic stop, to the arrest, to testing for blood-alcohol content or other substances like marijuana. Despite COVID-19, we still believe that every DWI case is winnable. That’s our philosophy. And that hasn’t changed.