Computers, Privacy & the Constitution

So what about Confrontation? (aka PartSix)

Does it limit what technology judges and lawyers can use in a courtroom, when they'd otherwise use lots more technology that might not have the accused and testimony in the same room anymore?

Physicality and Jurisdiction

Europeans are very comfortable with trying in absentia- presence is a matter of fairness. In the English tradition, presence is a matter of jurisdiction, and so a prerequisite. (This is not a constitutional question.) Historically in English law failure to consent to jurisdiction (to plea) makes you an outlaw. You can also force pleading (once you've got the person) through peine forte et dur. Question eventually arises- what can you do to create jurisdiction in the modern US? Kidnapping across borders used to create a due process problem, but once you're in US borders you can do some kidnapping (more or less) and probably even reach across borders now.


Note that until relatively recently (1700s) the English system /prohibited/ counsel in criminal trial- confrontation was assumed to be the sole test of truth. This changes gradually (starting with treason statute in 1697), and is partially a result of importation into Britain from the Colonies. Goal of right to counsel in PartSix is to limit/constrain the federal government from regressing to the British norm of less than 100 years ago; the confrontation clause has older roots, historically speaking. Even in brutal contempt cases we still bring you in, see, e.g., though now we use closed circuit TVs- filling only the right to see. Kentucky v. Buchanan suggests that seeing, plus the ability to confer with the lawyer about cross-examination, is sufficient, though probably only for child molestation or other cases where there are particularly strong malevolent relationships present.

Given that you can now broadcast a trial so trivially, does physicality during testimony still have a place?

Seems like the key question is whether or not one thinks that physicality has a relationship to truth; our system is certainly invested in the idea that tone of voice/view of face is very important, and that transcripts are insufficient- hence (in part) deference of appellate courts to juries.

so what does it mean now?

What about video (particularly HD?) The technical shortcomings of 'I saw it on TV' may in the near future be less than the shortcomings of the physical courtroom- distraction, distance from jury box to parties, etc. Open question, of course, as to the psychological questions- do they become an actor, someone abstract, and hence not trusted (or less valued, if they are the defendant?)

If the goal of the criminal trial judge is to streamline proceses, they can use technology to do that- judge can watch testimony whenever is convenient; rewind, rewatch, etc. but does confrontation clause cause a problem for that?


What does it mean to have a 'non-disparagement' theory of rights? Obviously, could mean nothing, like we've treated in for much of American history. Could mean that there is a penumbra; a fudge factor stemming from the rest of the rights- 'its right there in that neighborhood somewhere.'



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r3 - 17 Jan 2012 - 17:49:15 - IanSullivan
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