Metropolitan News-Enterprise


Friday, August 31, 2018


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Riverside Superior Court Appellate Division:

Videoconferencing in Infraction Trial, Over Objection, Subject to Harmless Error Rule

Majority Hints, but Does Not Hold, There Is No Confrontation Clause Violation


By a MetNews Staff Writer


The majority of a specially constituted Riverside Superior Court Appellate Division has skirted the question of whether the federal and state constitutional confrontation clauses are breached where a bench officer in a traffic infraction case conducts a trial from a separate courtroom from the defendant and witnesses, over objection, using video conferencing technology.

“[E]ven if the trial court erred in requiring the use of two-way video conferencing, any such error was harmless,” Acting Presiding Judge Carlos Cabrera said in an opinion joined in by Judge David A. Williams. Judge Khymberli S. Apaloo dissented, maintaining there was constitutional error, requiring reversal.

All three jurists are members of the San Bernardino Superior Court, sitting on assignment by the chief justice. A spokesperson for the Riverside Superior Court explained:

“Our Presiding Judge made the original order for use of the video, so she recused our appellate division and requested that another court hear the appeal.” 

 The opinions, springing from eight cases that were consolidated on appeal, were filed July 3 and made public Tuesday after the Court of Appeal determined that transfer to itself was unnecessary.

First Impression

The right to be present at a trial on a charge of a traffic infraction, Cabrera wrote in what he said is a case of first impression, is derived from a statute and, as such, is subject to the harmless error rule. None of the eight appellants, he said, had shown prejudice by virtue of the procedure that was used.

While avoiding a decision as to whether the confrontation clauses were violated, Cabrera did address—and reject—the contention that the appellants were denied their rights to public trials, and hinted that there was no violation of the right of confrontation. He said:

“Nothing in the record demonstrates Appellants were not afforded the right to a public trial. There is no allegation the images displayed or the sound quality on either end of the two-way video conferencing were unclear or inaudible. Additionally, the advent of major developments in videoconferencing equipment, including the use of high definition technology, allow a judge to see the most detailed observations of a witness, almost eliminating any concerns of a judge not being physically present in the same courtroom.”

Apaloo’s Dissent

In her dissent, Apaloo argued:

“Although a defendant can always waive their [sic] rights, the practice of the trial court requiring defendants to submit to a trial via two-way remote video communication denies defendants their right to personal presence, absent a waiver. Under section 15 of article I of the California Constitution, a criminal defendant has the right to be ‘personally present with counsel, and to be confronted with the witnesses against the defendant.’ ”

Citing the U.S. Supreme Court’s 1987 decision in Kentucky v. Stincer, the judge said:

“Further, under the Sixth Amendment’s confrontation clause, a criminal defendant has the right to be personally present when his appearance is necessary to prevent ‘interference with [his] opportunity for effective cross examination.’ ”

The Fourteenth Amendment right to procedural due process, she contended is also implicated.

“Therefore, I find the denial of a person’s constitutionally guaranteed right  represents a fundamental change in the process, which not only denies face-to-face confrontation, but a trial court’s ability to observe a witness to determine  credibility,” Apaloo declared.

While the majority found California Rules of Court, rule 4.220 inapposite because it only relates to videoconferencing rules where a defendant requests use of such technology, Apaloo viewed teleconferencing in the absence of such a request to be violative of the rule.

The case is People v. Sekhon, 2018 S.O.S. 4358.


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