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Is The Defendant’s 6th Amendment Right To Confrontation Violated By Video Testimony?

The Sixth Amendment to the United States Constitution guarantees every person accused of a crime the right to “confront” and cross examine the witnesses against him in court. The United States Supreme Court has emphasized over the years that except in the most extreme circumstances, this guarantee requires face to face confrontation in an open courtroom. However, when it comes to allegations of sexual assault against minors, trial courts will frequently try to take shortcuts; and in one recent case, a majority of the Michigan Supreme Court turned a blind eye to serious allegations of attorney and constitutional misconduct.

James Buie was convicted by a jury in Kent Circuit Court of sexually assaulting three minors. The jury heard testimony from a physician who conducted the rape kits for two of the victims, and a state forensic examiner who performed DNA testing on the kits and other crime scene evidence. Neither witness testified in the courtroom. Instead, the trial judge, Dennis Leiber, permitted them to appear by two-way interactive video. At the time, the prosecutor claimed it would be “inconvenient” for the two experts to testify in person at the courtroom.

In response to the Prosecutor’s request, Buie’s lawyer unfortunately dropped the ball. He acquiesced to the video testimony, while telling Judge Leiber, “I understand this is this particular courtroom’s first attempt at this type of technological proceeding, and my client has — wanted to question the veracity of these proceedings, so I’ll leave that to the Court’s discretion.” Following the conviction, the defendant appealed, arguing the video testimony “violated his constitutional right of confrontation and was not properly admitted under any statute or court rule.”

The Court of Appeals subsequently directed Judge Leiber to further elaborate on whether his decision to allow video testimony was “necessary to further an important public policy or state interest.” The prosecution and Buie both sought further relief from the Supreme Court in 2010, but the justices declined to take up the case at that time.

The case returned to Judge Leiber, who conducted an evidentiary hearing. The key issue was whether Buie’s attorney effectively waived her client’s constitutional claims by consenting to the video testimony before trial. Buie told the court that “he and defense counsel did not get along” and that “he had no knowledge of the video testimony until it was about to happen.” He recalled telling her to object, which she did not. As noted above, the attorney merely said her client questioned the “veracity” of the video testimony but left the final decision up to the court.

According to the trial court, that was enough to constitute a waiver of Buie’s constitutional rights. The Court of Appeals, which retained jurisdiction over the case, later disagreed and found not only that Buie made a timely objection, but that the video testimony did in fact violate his right of confrontation under the Sixth Amendment. The appellate panel vacated Buie’s conviction and ordered a new trial. The prosecution then appealed to the Supreme Court, which agreed to hear the case.

Justice Stephen J. Markman, writing for a four-justice majority, reinstated the trial court’s original decision that Buie’s attorney waived her client’s right to object to the video testimony. Justice Markman said it was well established that “the right of confrontation may be waived, and that the waiver may be effected by counsel, as long as counsel’s decision constitutes reasonable trial strategy and the defendant does not object to the waiver.” Since Buie’s attorney never expressly objected in open court, and since the attorney is presumed to act in her client’s interest, Justice Markman said the court must assume Buie intended to waive his constitutional rights on this issue. Accordingly, the Supreme Court reversed the Court of Appeals’ earlier decision to vacate Buie’s conviction, and returned the case to the lower court for disposition of other issues Buie raised on appeal.

While four justices signed Justice Markman’s opinion, Justice Diane M. Hathaway issued a one-sentence statement concurring “in the result only in this factually unique case.” Three other justices, led by Justice Michael F. Cavanagh, dissented. Addressing the substantive issue, Justice Cavanagh said the trial court failed to identify any “important public policy” or state interest that would “outweigh defendant’s right of confrontation” in this case. Justice Cavanagh goes on to accuse the majority of “improperly” avoiding this conclusion by declaring Buie waived his rights at trial:

Assuming arguendo that defense counsel’s statement that she would leave the matter to the discretion of the trial court constituted an attorney’s waiver, I disagree with the majority’s conclusion that defense counsel’s statement effected a valid waiver of defendant’s right of confrontation. Rather, I would hold that there can be no effective waiver of that right by an attorney when the record clearly shows that the attorney’s purported waiver was in direct contravention of the defendant’s express objection.

Justice Cavanagh correctly pointed out that the majority’s decision “condones” an attorney who expressly ignores her client’s instructions to object by placing the burden on the defendant to do his lawyer’s job for him:

By holding that “the right of confrontation may be waived by defense counsel as long as the defendant does not object on the record,” the majority essentially charges criminal defendants with the legal knowledge and skill of an attorney. Under the majority’s new rule, when an attorney fails to voice a proper objection to a procedure that implicates a core constitutional right, the defendant will be required to know the legal basis for the objection, override his attorney, and make the objection on the record himself.

Nobody facing prison and sex offender registration should be required to defend himself from the mistakes of his own attorney, or second-guess his lawyer’s decisions throughout the case. As this case aptly demonstrates, you simply cannot count on the courts to correct a bad attorney’s mistakes. That’s why it’s critical you go into court with experienced counsel that specialize in defending child abuse and sexual assault allegations – one who knows the law and won’t get tripped up at a critical moment during trial. Contact the attorneys at Satawa Law right away if you or a loved one is facing similar charges.

Mark A. Satawa practices in the area of criminal defense, specializing in sex crimes. He is a member of the board of directors of the National Association of Criminal Defense Lawyers (, the Criminal Defense Attorneys of Michigan (, and is a frequent continuing legal education speaker on sex offenses, most recently at the Institute for Continuing Legal Education seminar on Proven Defense Strategies for Challenging Criminal Sexual Conduct Cases.

Mark Satawa

Mark Satawa is a criminal defense attorney specialized in forensic DNA,
sex crimes, child abuse, shaken baby, medical child abuse, white collar,
and federal crimes.