11/2/18: Great confrontation clause case

In United States v. Carter, --- F.3d ---, No. 16-50271 (9th Cir. 2018), the Court held  that a defendant’s right to physically confront an adverse witness (whether child or adult) cannot be compromised by permitting the witness to testify by video (whether one-way or two-way) unless use of the remote video procedure is necessary and the reliability of the testimony is otherwise assured.

The issued centered on the district court's decision to allow a critical witness to testify remotely via two-way video because she was seven months pregnant and could not travel.  

The Court held this violated the defendant's confrontation rights, because there were other alternatives, such as a continuance or severing counts.  Further, the error was not harmless. 

There is lots of good language.  For instance:

• Not only does physical confrontation at trial serve as a symbol of fairness, but it also promotes reliability, for “[i]t is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back.’” Compelling “adverse witnesses at trial to testify in the accused’s presence” thus “enhances the accuracy of factfinding” at trial.  

•  a criminal defendant’s constitutional rights cannot be neglected merely to avoid “added expense or inconvenience.” 

Congrats to Ben Coleman for another fantastic win!