Can a Witness Testify Against You Via Zoom in a Florida Criminal Trial?

One of the most important rights that a defendant has in a Florida criminal prosecution is to “confront” the witnesses and other evidence against them. The Sixth Amendment to the United States Constitution explicitly protects this right of confrontation. As one Florida appellate judge recently observed, the Sixth Amendment was a direct response to a colonial-era British practice where “officers of the court would examine the witnesses before trial” and then read that testimony to the jury, instead of having the jurors hear live testimony.

Appeals Court Upholds Life Sentence Despite Trial Court’s Constitutional Violation

Here in present-day Florida, there has been renewed attention on the Sixth Amendment’s Confrontation Clause due to the easy availability of technology that makes it possible for a person to appear and testify remotely in a criminal trial. Indeed, the judge quoted above wrote in a case where this was an issue.

The case, Lopez v. State, [include proper legal citation either here or in footnote for this case]involved a defendant accused of capital sexual battery against a child under the age of 12. Specifically, the nine-year-old daughter of the defendant’s then-girlfriend accused him of rape. Five days after reporting this alleged crime, a United States marshal arrested the defendant in Texas.

At trial, the marshal testified via Zoom, as he lived in Texas and was unavailable to testify in-person in Florida. The defense objected. The judge ultimately allowed the Zoom testimony. The jury found the defendant guilty of two counts of sexual battery, and the judge imposed a life sentence.

On appeal, the defendant again challenged the decision to allow the marshal to testify via Zoom as a violation of his Sixth Amendment rights. The Florida Fourth District Court of Appeal agreed the trial judge committed a legal error. The mere fact the marshal lived outside of Florida did not mean he was beyond the court’s subpoena power. As one judge noted in a concurring opinion, the only recognized common-law exceptions to the Confrontation Clause’s requirement of in-person testimony was if the witness was unavailable due to the defendant’s own wrongful act or the witness made a dying declaration. Neither exception applied here.

That said, the Fourth District still affirmed the defendant’ s conviction. The trial judge’s Confrontation Clause violation was a “harmless error” in the appellate court’s judgment that did not fundamentally deprive the defendant of his right to a fair trial. The marshal’s testimony in this case was “limited” to him apprehending the defendant and returning him to Florida for trial. Even without this testimony, the state presented other “compelling” evidence of the underlying sexual battery charge.

Contact a Fort Lauderdale Sex Offense Lawyer Today

Allegations of sexual battery, especially when the accuser is a child, carry some of the most significant criminal penalties under Florida law. That is why you must be prepared to defend yourself in court against such charges. Our Fort Lauderdale sex offense lawyers can help. Call Haber | Blank LLP today at 954-767-0300 to schedule a consultation.

Source:

4dca.flcourts.gov/content/download/2443302/opinion/Opinion_2023-0104.pdf