Monday, November 5, 2018
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Ninth Circuit:
Pregnant Victim’s Inability to Travel Didn’t Justify Use of Testimony Via Live Video
By a MetNews Staff Writer
The Ninth U.S. Court of Appeals on Friday invalidated the conviction of a man on one count of sex trafficking of a minor or by force, fraud, or coercion and one count of transportation of a minor in interstate commerce to engage in prostitution based on a Confrontation Clause violation because the victim, who was in a late stage of pregancy, could not travel from Minnesota and testified by two-way closed circuit television.
Circuit Judge Jay Bybee wrote:
“We now…expressly hold that a defendant’s right to ‘physical, face-to-face confrontation at trial’ may be compromised by the use of a remote video procedure only upon a ‘case-specific finding’ that (1) the denial of physical confrontation ‘is necessary to further an important public policy,’ and (2) ‘the reliability of the testimony is otherwise assured.’ ”
He recited that the trial judge, Chief Judge Virginia A. Phillips of the Central District of California, had found that the victim, denominated “J.C.,” was “unavailable to travel to be physically present” at trial, held in 2016. J.C., who had become an adult, was seven months pregnant.
Temporary Condition
But pregnancy, Bybee observed, is “a temporary disability. He said:
“There were alternatives available to preserve Carter’s right to physical face-to-face confrontation, meaning that denying him that right was not necessary.
“The most obvious alternative would have been to continue the trial in anticipation of J.C.’s recovery.”
The jurist noted that charges against defendant Laron Carter based on his alleged offenses against the woman in Minnesota could have ben severed from those in which six other females were found to be victims.
He also pointed to a suggestion by the government of a videotaped deposition of J.C. in Minnesota, with Carter present.
Error Not Harmless
Bybee continued:
“The government has not carried its burden of showing that the Confrontation Clause violation was harmless beyond a reasonable doubt. J.C. was not merely a witness, but the alleged victim of Carter’s crimes, and she was the most recent of Carter’s alleged victims.”
He said her testimony was “clearly critical” with respect to the two counts relating to her and quoted the government as acknowledging that her testimony was “especially central to the government’s case.”
The case is United States v. Carter, No. 16-50271.
Carter’s convictions on 12 other counts were affirmed in a separate memorandum opinion.
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