Can you hear me now?

On 12/15/09 in People v Wrotten (a name that works), the Court of Appeals, relying on People v Cintron (75 NY2d 249 [1990]) held that permitting an adult complainant living in another state to testify via real-time, two-way video after finding that because of age and poor health he was unable to travel to New York to attend court was within the trial court's inherent powers under Judiciary Law § 2-b, absent any specific statutory authority for such procedure.

The majority elides over the substantial impairment to the defendant's rights under the Confrontation Clause that must necessarily result from attempting to cross-examine a witness who is watching the process on T.V.; roughly equivalent to trying to hit a marshmallow out of the new Yankee Stadium (even over the short wall). By contrast, Judge Smith in dissent, while not using that analogy exactly, gets the point across:

"The right of confrontation includes -- indeed, is, at its core -- the right to meet one's accuser face to face (Coy v Iowa, 487 US 1012, 1016 [1988]). Neither our Court nor the United States Supreme Court has held, and I would not now hold, that a two-way-television encounter is "face to face" in this sense. The assumption underlying the constitutional right of confrontation is that a witness brought into the presence of the accused will be less likely to swear to a false accusation, or to do so convincingly (id. at 1019). The point of confrontation is thus the psychological effect it has on the witness. That effect is, beyond question, substantially diluted when, though the witness and the accused can see each other, the witness knows that the accused is far away. I therefore conclude that defendant in this case was not permitted to "confront" her accuser in the constitutional sense . . ."

Judge Jones, also in dissent, notes that absent any legislative authority that would explicitly provide for the procedure used here, the majority essentially manufactures some extra trial court authority out of whole cloth, noting that "the majority's view of the courts' inherent powers presents a number of problems . . . there does not appear to be any discernible limitation, within the inherent powers of the courts, on a court's authority to allow the admission of an absent witness's televised testimony as long as it is 'necessary to carry into effect the powers and jurisdiction possessed by [the court]' . . . what happens when individual courts, on similar facts, reach different conclusions as to whether to allow the admission of televised testimony or some other subject pertaining to the state's public policy? . . . it appears that the majority's ruling effectively circumscribes the Legislature's role by allowing trial courts to . . . create procedural rules for the sole purpose of allowing prosecutions to proceed (in direct contravention to state law)."

Another case of bad facts making bad law. The 85 year old complainant in this case was in ill health and unable to travel to the trial. Judge Jones proposed the remedy of a pretrial deposition, a solution that either didn't occur to the trial court, or couldn't be swallowed (who wants be known as the judge who let an attorney cross-examine a witness to death?) So the appellate result is an amorphous, undefinable, boundry-less "I'll know it when I see it"-like legal standard.