Legal Question in Criminal Law in Massachusetts

Re: video testimony

In various decisions, Massachusetts Supreme Judicial Court has ruled that video testimony is not admissible in criminal cases because of constitutional protections under Massachusetts Declaration of Rights and the 6th Amendment of the United States constitution. These deal with the right of an accused to confront his accusers. Article 12 of the Massachusetts Declaration of Rights, by its very language, guarantees the accused in a criminal case the right "to meet witnesses against him face to face." Commonwealth v. Johnson , 417 Mass. 498 (1994). This right dates back to Roman times, when an accused was according the right to look his accuser in the Eye. According to the Bible, Acts 25:16, the Roman Governor Festus, discussing the proper treatment of his prisoner, Paul, stated: "It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face-to-face, and has been given a chance to defend himself against the charges." The defendant's right of confrontation requires the physical presence of a

witness testifying against him, the witness's testimony to be under oath,

the defendant's opportunity to cross examine the witness, and the jury's

opportunity to observe the witness's demeanor. Maryland v. Craig, 497 U.S.

836, 846 (1990). Commonwealth v. Kater, 409 Mass. 433, 446 (1991), 412 Mass.

800 (1992), and 421 Mass. 17 (1995). Commonwealth v. Bergstrom, 402 Mass.

534, 543 (1988). These "elements of confrontation" serve, in part, to enable the jury to evaluate the witness's credibility. Maryland v. Craig, at 846. "Absent compelling circumstances, a jury ought to be able to view the interaction between a witness and others who are present. The subtle nuances of eye contact, expressions, and gestures between a witness and others in the room are for the jury to evaluate. Especially where child witnesses are involved, and great

leeway for leading questions is allowed, jurors must be able to choose their own focus in looking for any direct or indirect influences on a child's testimony." Berastrom, supra at 550