United States District Court, D. Hawaii
ORDER NUMBER TWO ON PRETRIAL MOTIONS
GILLMOR UNITED STATES DISTRICT JUDGE.
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).
Government initially requested the following witnesses be
permitted to testify via deposition or via live two-way video
(1) April Yates;
(2) Kathy Coonce;
(3) Samantha Vega; and,
(4) Julie Marlowe.
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.
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.
Kathy Coonce - The Government has withdrawn its
request for Kathy Coonce to testify via deposition. She will
no longer be called as a witness.
Government continues to maintain that Ms. Vega and Ms.
Marlowe are unavailable due to their child care
responsibilities for their disabled children.
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.
Julie Marlowe - The Government requests that Julie
Marlowe be permitted to testify via live two-way video
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,
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
Public Policy Exceptions
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).
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.
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.
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