United States District Court, W.D. Washington, Seattle
C. COUGHENOUR, J.
matter comes before the Court on Defendant's motion to
allow telephonic or video testimony of an incarcerated
defense witness (Dkt. No. 272). Having thoroughly considered
the parties' briefing and the relevant record, the Court
finds oral argument unnecessary and hereby GRANTS the motion
for the reasons explained herein.
parties in this case are scheduled to commence a jury trial
on April 2, 2018. (Dkt. No. 253.) Defendant wants to call a
witness, Alfred Anderson, who is currently incarcerated in
the Olympic Correctional Facility in Forks, Washington. (Dkt.
No. 272 at 1.) Defendant states that Mr. Anderson will
testify about his time as a crew member aboard the F/V
Native Sun, and that his testimony is relevant to
Defendant's conduct as the ship's captain.
(Id. at 2.) Mr. Anderson previously testified in the
related trial of Defendant's father, Bingham Fox. (Dkt.
No. 170.) In that case, Mr. Anderson was brought to federal
custody on a writ of habeas corpus ad
testificandum. (Dkt. No. 145.) After testifying, Mr.
Anderson was held at the Federal Detention Center for 30 days
before being transported back to the state facility. (Dkt.
No. 272 at 2.) In this motion, Defendant asks that Mr.
Anderson be allowed to testify via teleconference because a
potential delay in transportation back to the State DOC
facility would cause him to lose an opportunity to
participate in work-release and other correctional
programming. (Id.) The Government objects to the
motion, arguing that Mr. Anderson is not truly unavailable to
testify and that it would be prejudiced were he to testify
remotely. (Dkt. No. 273 at 2.)
every trial the testimony of witnesses must be taken in open
court, unless otherwise provided by a statute or by rules
adopted under 28 U.S.C. §§ 2072-2077.” Fed.
R. Crim. P. 26. Notwithstanding that rule, courts have
recognized that in certain situations, witnesses may testify
remotely. See United States v. Swisher, 360 F.
App'x 784, 786 (9th Cir. 2009) (affirming district
court's ruling to allow unavailable defense witness to
testify by telephone at the request of Defendant). A
fundamental reason for requiring live testimony in criminal
trials is to protect a Defendant's right to confront the
witnesses against him. See U.S. Const. amend. VI;
see also United States v. Yida, 498 F.3d 945, 950
(9th Cir. 2007) (discussing the Sixth Amendment's general
requirement that a criminal defendant gets to confront
adverse witnesses in court).
as here, it is a defense witness testifying remotely, the
Court is not concerned with violating the Confrontation
Clause. See Crawford v. Washington, 541 U.S. 36, 68
(2004) (the Confrontation Clause “applies to witnesses
against the accused.”) While the Court's chief
consideration in allowing remote testimony is the
Confrontation Clause, the Ninth Circuit has expressed a
general preference for live testimony. See Yida, 498
F.3d at 950-51 (explaining the importance of the jury being
able to observe a witness's demeanor while testifying).
does not provide a statute or rule that exempt's Mr.
Anderson from the Rule 26 requirement for live testimony.
Instead, Defendant asserts that it would be in the interests
of justice to allow Mr. Anderson to testify remotely. (Dkt.
No. 272 at 4.) The Court agrees. First, there is no
Confrontation Clause concern because Mr. Anderson will be
providing testimony favorable to Defendant. Second, the Court
does not believe the Government would be unduly prejudiced by
having to cross-examine Mr. Anderson over a
video-conferencing program such as Skype. The Government
argues that its cross-examination of Mr. Anderson “will
likely be cumbersome, disjointed, and entirely blunted if he
is permitted to hide behind a telephone or even a video
screen.” (Dkt. No. 273 at 4.)
testimony via video-conferencing would allow the jury and
Government to see the witness's demeanor during his
testimony. In this regard, live video-testimony does not pose
the same problem as former recorded testimony such as
transcripts from depositions or prior hearings that are read
to the jury. See Yida, 498 F.3d at 950-51
(discussing the importance of live testimony in contrast to
the use of former testimony under Federal Rule of Evidence
804). This Court has previously allowed defense witnesses to
testify remotely when a defendant has made a showing of
unavailability. See United States v. Rahman, No.
CR17-0001-JCC, slip op. at 1 (D. N. Mar. I. Aug. 15, 2017)
(presiding by designation over a criminal trial, Court allows
defense witness to testify using video conferencing because
he was out of the country). Finally, Defendant has
demonstrated that Mr. Anderson would endure some hardship
were he forced to testify in trial under a writ of habeas
corpus ad testificandum. (Dkt. No. 272 at 2.)
foregoing reasons, Defendant's motion to allow telephonic
or video testimony of an incarcerated defense witness (Dkt.
No. 272) is GRANTED. Defense counsel is ORDERED to coordinate
with the Courthouse information technology staff to arrange
for the use of video conferencing for Alfred ...