Proposed Amendments to Fed. R. Crim. P. 26: An Exchange: Remote Testimony – A Prosecutor’s Perspective

Although the Supreme Court has declined, for now, to endorse the Judicial Conference proposal to add a Rule 26(b) of the Federal Rules of Criminal Procedure to permit live video testimony under limited circumstances, I agree with Professor Friedman that the matter is far from over. This is both because the potential benefits to be realized from the use of remote video testimony are too large to ignore and because, on closer inspection, any Confrontation Clause concerns that might underlie the Court’s hesitation to adopt the proposal are not warranted. My purpose in writing is to summarize some of the benefits of remote video testimony, to address the constitutionality of the proposal (including the issues that apparently caused a majority of the Court and cause Professor Friedman to hesitate before endorsing it), to discuss some particulars of the Judicial Conference proposal and Professor Friedman’s suggested alternative, and to take a quick look at potential future use of live two-way video testimony.