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United States v. Harris

United States District Court, D. Hawaii

April 26, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
SHEILA HARRIS, Defendant.

          ORDER NUMBER TWO ON PRETRIAL MOTIONS

          HELEN GILLMOR UNITED STATES DISTRICT JUDGE.

         The Government filed four Motions in Limine seeking to permit testimony from witnesses that it claims are unavailable to appear in-person. (ECF Nos. 52, 53, 54, and 77).

         The Government initially requested the following witnesses be permitted to testify via deposition or via live two-way video testimony:

(1) April Yates;
(2) Kathy Coonce;
(3) Samantha Vega; and,
(4) Julie Marlowe.

         Following a hearing on April 12, 2018, the Government made additional efforts in order to assist the witnesses and make them available to testify in-person.

         (1) April Yates - The Government states that arrangements were possible to enable April Yates to come to Hawaii in order for her to testify in-person.

         (2) Kathy Coonce - The Government has withdrawn its request for Kathy Coonce to testify via deposition. She will no longer be called as a witness.

         The Government continues to maintain that Ms. Vega and Ms. Marlowe are unavailable due to their child care responsibilities for their disabled children.

         (3) Samantha Vega - The Government seeks to admit the deposition testimony of Samantha Vega. In the alternative, the Government requests permission for Ms. Vega to testify via live video.

         (4) Julie Marlowe - The Government requests that Julie Marlowe be permitted to testify via live two-way video teleconference.

         I. Confrontation Clause

         The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. Amend. VI. This clause, known as the Confrontation Clause, “guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 1016 (1988).

         The right to a physical, face-to-face confrontation is not absolute and may be compromised in limited circumstances. First, the right to face-to-face confrontation is not violated if there is:

(1) a public policy exception where the necessities of the case dictate an alteration to the confrontation, as set forth in Maryland v. Craig, 497 U.S. 836, 848 (1990); or,
(2) the witness is unavailable and the defendant already had a prior opportunity to cross-examine the witness, as set forth in Crawford v. Washington, 541 U.S. 36, 59 (2004).

         II. Public Policy Exceptions

         The United States Supreme Court has found an exception to the Confrontation Clause where “considerations of public policy and necessities of the case” so dictate. Maryland v. Craig, 497 U.S. 836, 848 (1990).

         In Craig, the United States Supreme Court upheld a Maryland rule of criminal procedure that allowed a child victim of abuse to testify by one-way closed circuit television from outside the courtroom, despite a challenge by the defendant pursuant to the Confrontation Clause of the Sixth Amendment to the United States Constitution. Id. at 858. The defendant and the courtroom could see the testifying child witness on a video monitor but the child could not see the defendant. The United States Supreme Court upheld the Maryland rule on the basis that it served “an important public policy” and the reliability of the testimony was otherwise assured. Id. at 850. The Court found that the State's interest in protecting child witnesses from the trauma of testifying in a child abuse case was sufficiently important to justify the use of the video testimony. Id. at 852.

         In United States v. Gigante, 166 F.3d 75, 80 (2d Cir. 1999), the United States Court of Appeals approved the use of two-way, closed circuit television to present the testimony of a witness from an undisclosed location outside the courtroom due to “exceptional circumstances.” The appellate court found that a witness's own severe health problem could allow for a public policy exception to allow for video testimony.

         The appellate court permitted the use of live video testimony outside the court because the witness: (1) was a former mobster participating in the Federal Witness Protection Program; (2) was at an undisclosed location; and (3) was in the final stages of inoperable, fatal cancer. Id. at 80-81. The appellate court held that the defendant's Confrontation Clause rights were protected because the trial court held an evidentiary hearing and made specific factual findings ...


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