Witness In Zimmerman Case Testifies By Skype

Two problems arise with the new technology: The witness's testimony in this case was interrupted by pranksters; and appearing via Skype may violate the constitutional right to face your accuser. Weekend Edition Saturday host Scott Simon talks with attorney John Hutchins about using Skype in criminal cases.

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SCOTT SIMON, HOST:

When George Zimmerman stood trial this week, the prosecution called his former professor Scott Pleasants to the stand, not in person but over that social media technology called Skype. The state of Florida completed a round of questioning...

(SOUNDBITE OF CRIMINAL TRIAL)

JOHN GUY: Thank you. No other questions, Your Honor.

JUDGE DEBRA NELSON: OK. Cross.

(SOUNDBITE OF BEEPING)

SIMON: Before the defense could begin cross examination, the witness' Skype account was bombarded with calls from people who were outside the courtroom.

(SOUNDBITE OF CRIMINAL TRIAL)

NELSON: Is that his phone that's getting those messages?

GUY: It's someone calling the destination. Yeah.

(SOUNDBITE OF BEEPING)

GUY: I get it - just hit decline.

SCOTT PLEASANTS: (Unintelligible).

GUY: That's all right.

SIMON: The disgruntled judge asked the defense to switch to the plain old phone for cross examination.

(SOUNDBITE OF TRIAL)

NELSON: Is there another phone that you can - that we can call in to, that's not a cellphone?

SIMON: So we wondered about the implication of this kind of technology in the justice system; and we spoke with social media and technology attorney John Hutchins at WABE in Atlanta, Ga., about what his concerns might be in a courtroom with witnesses dialing in over Skype.

JOHN HUTCHINS: Well, there are a couple of complications in taking any kind of video testimony but especially like, a live feed. And one, in a criminal trial, is the confrontation clause of the Sixth Amendment of the United States Constitution, which simply says that criminal defendants have a right to confront their accuser, or confront witnesses against them, in the courtroom. The idea is that they ought to have the right to look them in the eye while they're testifying.

SIMON: There is precedent for electronic testimony, isn't there?

HUTCHINS: There is. There is a lot of precedent for videotaped testimony in criminal trials, where exceptions have been made in things like where you had very young victims testifying, or something like that. It's not particularly novel that there was a video testimony in this trial. What is a little new is the fact that it was a live audio feed - although I am aware of a couple other cases where judges have allowed testimony to take place over Skype.

SIMON: Sorry to play games with you, but when you say there were a couple of other trials that permitted testimony by Skype, is that just hearsay? And does that raise another point?

(LAUGHTER)

HUTCHINS: Well, it's not hearsay because I'm not offering my statement in court.

SIMON: Oh. You really are a lawyer.

(LAUGHTER)

SIMON: But does that raise concern about the hearsay clause?

HUTCHINS: Well, it raises - hearsay is just any statement that's offered out of the physical confines of the court proceedings. So an out-of-court statement is generally not admissible in court, unless it falls within one of the very many exceptions to the hearsay rule.

SIMON: Yeah. So the phrase "the court" is not just some kind of generic term that could include voices from all over. It's an actual, physical courtroom.

HUTCHINS: That's correct.

SIMON: Would attorneys have any concern that their clients - defendants, anybody they call to the stand - would be perceived in a certain way because they appear by Skype or some other electronic means?

HUTCHINS: Yeah. And one is just how it's going to appear to the jury that the witness is not physically there because most of the other witnesses they're going to see in the trial will be physically there. And then, just how is your witness going to appear on video? Some witnesses might appear better on video; some witnesses may appear not as good, on video. And then the other issue - which was raised in the Zimmerman trial - is, is the technology going to work?

(LAUGHTER)

SIMON: Is that going to make attorneys and judges and courts in the future reluctant, just because of that, to take Skype testimony?

HUTCHINS: Well, I think what's interesting about what happened in the Zimmerman trial is really that there were two technologies that were converging, that made the prankster issue arise. And that was really the fact that they were using Skype on television, and the user's name was broadcast for everybody to see. And so it was really more the social media aspect of Skype that caused the problem. So people have to understand the technology they're using in the courtroom, and I think that's what happened here.

SIMON: John Hutchins is a technology and social media attorney. He joins us from member station WABE in Atlanta. Thanks so much for being with us.

HUTCHINS: Thank you, Scott.

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