United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
matter is before the Court on the government's Motion for
Trial Testimony by Two-Way Video Conference [ECF No. 140].
The government seeks to have two witnesses, Dorothy Hardesty
and Dorothea Wolfe, testify against Defendant George R.
McKown remotely. The government represents that this motion
is unopposed, and that Defendant waives “any Sixth
Amendment issues relating to the confrontation clause.”
Mot. for Trial Test. at 1, ECF No. 140. Defendant has not
responded within the allotted time to dispute this, making
this matter ripe for ruling. For the reasons stated below,
this Motion is GRANTED.
has been indicted on charges arising out of an alleged scheme
to defraud investors. See Indictment, ECF No. 1.
This matter is set for trial on January 27, 2020. Scheduling
Order, ECF No. 103. The following background is alleged by
the government and the Court accepts as true for the purposes
of this motion only.
Mrs. Hardesty and Ms. Wolfe desire to testify at trial, but
both live in Florida. Mot. for Trial Test. at 1, ECF No. 140.
Mrs. Hardesty is 98 years old, blind, and hard of hearing,
and due to her age and health conditions she is not capable
of traveling to the Northern District of Indiana to testify
in person. Id. at 1-2. Ms. Wolfe is Mrs.
Hardesty's daughter and primary caregiver, and she cannot
travel to the Northern District of Indiana to testify in
person because of her caregiving responsibilities to her
mother. Id. The government seeks to have these two
witnesses testify at trial remotely via two-way video the
United States District Court in the Northern District of
Florida, Tallahassee Division. Id. at 6.
Court concludes that it has the inherent power to grant the
government's request. See United States v.
Beaman, 322 F.Supp.2d 1033, 1034 (D.N.D. 2004)
Confrontation Clause of the Sixth Amendment reads in relevant
part 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
requirement constrains what Courts may allow, and
“reflects a preference for face-to-face confrontation
at trial.” Maryland v. Craig, 497 U.S. 836,
849 (1990) (quoting Ohio v. Roberts, 448 U.S. 56, 63
(1980)). While “the face-to-face confrontation
requirement is not absolute” it may only be dispensed
with “where denial of such confrontation is necessary
to further an important public policy and only where the
reliability of the testimony is otherwise assured.”
Id. at 850.
begin, the Court notes that the government represents that
Defendant has waived any confrontation clause issues with the
two government witness testifying remotely. See Mot.
for Trial Test. at 1 (“The Government seeks this
request without objection by the defendant, through counsel,
Richard S. Kling, waiving any Sixth Amendment issues relating
to the confrontation clause.”). This is an independent
ground that the Court could rely on to grant the
government's motion. See Yu Tian Li v. United
States, 648 F.3d 524, 531 (7th Cir. 2011) (noting that
“defendant's attorney can waive his client's
Sixth Amendment confrontation right so long as the defendant
does not dissent from his attorney's decision, and so
long as it can be said that the attorney's decision was a
legitimate trial tactic or part of a prudent trial
strategy.” (quoting United States v. Cooper,
243 F.3d 411, 418 (7th Cir. 2001)). But even without this
waiver it would still be appropriate to grant the
government cites to Maryland v. Craig for its
argument that the confrontation clause does not prevent the
two witnesses from testifying remotely. The Court notes that
the Craig analysis may be too restrictive for this
circumstance, as that case involved a one-way video where the
testifying child could not see the defendant while here the
government seeks to utilize two-way video testimony. See
United States v. Gigante, 166 F.3d 75, 81 (2d Cir. 1999)
(declining to apply Craig because the remote
testimony involved two-way video, and instead analogizing to
admission of a deposition under Fed. R. Crim. P. 15 where the
witness is unavailable).
because the government's motion also satisfies a more
stringent Craig analysis the Court will apply that
framework. The Supreme Court in Craig confirmed that
“a defendant's right to confront accusatory
witnesses may be satisfied absent a physical, face-to-face
confrontation at trial only where denial of such
confrontation is necessary to further an important public
policy and only where the reliability of the testimony is
otherwise assured.” Craig, 497 U.S. at 849.
The “necessity” requirement is
“case-specific.” Id. at 855. While the
“reliability” requirement may be satisfied when:
(1) the witness is under oath; (2) the witness is subject to
cross-examination; and (3) the jury can observe the
witness's demeanor. Id. at 845-46.
as to necessity the Court is satisfied that due to the
witness' age, health conditions, and caregiving
responsibilities they cannot testify at this trial in person.
See generally United States v. McGowan, 590 F.3d
446, 455-56 (7th Cir. 2009) (“LaMie's illnesses
were chronic, unlikely to change over time except to worsen,
and in fact did worsen over the time that passed between the
indictment and trial. In this context, the court's
finding of LaMie's unavailability was timely, sound, and
well within the court's discretion.”).
Court also concludes that allowing the witnesses to testify
remotely is necessary because they would not be able to
otherwise, and that allowing them to testify supports two
important public policies. First, there is an important
public interest in the government prosecuting serious crimes
such as the alleged fraud in this case. And second, there is
an important public interest in allowing witnesses to testify
who cannot travel because of age or health. As to
reliability, live two-way video testimony at a remote
courthouse meets the requirements laid out in Craig.
The witnesses will be under oath and subject to cross
examination, and the jury will be able to observe the
witnesses' behavior. See McGowan, 590 F.3d at
456 (“We have already held that there is no
Confrontation Clause violation when admitting fully
cross-examined testimony preserved by a properly conducted
Rule 15 deposition, and that this holding had not changed
after Crawford.”); see also Gigante,
166 F.3d at 81 (“We agree that the closed-circuit
presentation of Savino's testimony afforded greater
protection of Gigante's confrontation rights ...