Closed-Circuit Testimony in Prosecutions Other than Child Sex Crime Cases

Today, the First Department announced a 3-2 decision in People v. Wrotten (1st Dept. 12/30/2008), reversing a defendant's conviction for Assault in the Second Degree. 

The facts were fairly simple:

Defendant, a home health aide, briefly cared for the complainant's wife in the couple's Bronx home until the wife moved to a nursing home. Approximately two and a half months after the wife moved to the nursing home, defendant, who maintained a relationship with the couple, went to the complainant's house. While both defendant and the complainant testified that defendant helped the complainant prepare snacks to bring to the wife, they offered dramatically different accounts of what happened at the house. The complainant testified that defendant assaulted him with a hammer and demanded (and took) money from him before fleeing the house. Defendant testified that the complainant grabbed her breasts and that, to get his hands off her, she "picked up something and hit him with it." Defendant denied demanding or taking money from the complainant.

By the time of the trial, the complainant's health had deteriorated and there was evidence---albeit challenged to some extent by the defense---that forcing him to travel to New York would have been detrimental to his health and, in fact, could have caused his death.  At issue was whether Supreme Court erred in allowing the complainant to testify, from California, via a closed-circuit television feed from his assisted-living facility:

The complainant, while physically in California, gave the televised testimony. The complainant could see the courtroom, including the Judge and defendant, although the extent to which the witness could see the courtroom participants is in dispute, and could hear the proceedings in the courtroom. Those in the courtroom could see and hear the complainant. Ultimately, the jury considered four counts: one count of assault in the first degree, one count of assault in the second degree and two counts of robbery. The jury acquitted defendant of assault and robbery in the first degree but convicted her of assault in the second degree. On her appeal from her conviction of assault in the second degree, defendant's principal contention is that Supreme Court erred in permitting the complainant to give televised testimony.

(footnote omitted). 

The majority, in an opinion written by Justice McGuire, held that the procedure employed in this case was not statutorily authorized and required a new trial.  The court cited the following reasons for its decision:

• Testimony through closed-circuit feed was not statutorily authorized because this was not a child sex offense case.  See CPL Article 65.
• Judiciary Law § 2-b(3), which restricts courts from adopting "new process and forms of proceedings" unless they are "necessary to carry into effect the powers and jurisdiction possessed by it," is not a license for a court to delve into areas of public policy.  Whether to permit closed-circuit testimony is a matter left for the Legislature.
• The judiciary does not have inherent authority to create a new class of complainants to supplement those in the existing statutes.
• By enacting CPL Article 65, dealing with closed-circuit testimony in child sex offense cases, the Legislature sub silentio expressed its judgment that use of such testimony in other cases was forbidden.  It can be "infer[red] that the expression of authority to permit such testimony under specific circumstances indicates an exclusion of authority under other circumstances."  Expressio unius est exclusio alterius.
• The claimed authority to permit closed-circuit testimony is inconsistent with CPL Article 680, a rarely-used procedure for the appointment of "commissioners" to take out-of-state testimony.  "Article 680 contains no exception to that prohibition for cases in which either the witness' testimony would be critical to the prosecution's case or the witness cannot travel to New York without endangering his or her life or health. At the very least, that prohibition would be undermined if the People can obtain an order from a trial court authorizing the receipt into evidence of the televised testimony of a prosecution witness who resides outside the state without regard to whether the defendant has sought a similar order relating to a defense witness."
• The procedure was also inconsistent with CPL Article 660, which permits the use of conditional examinations before trial.  Such examinations may be conducted if a witness is physically ill and may occur outside the county where the trial is to take place.  However, the statute requires that the examination occur within the Empire State.

The dissent, in an opinion by Justice Friedman, would have affirmed the conviction for the following reasons:

• The procedure satisfied the Confrontation Clause.
• Regarding the necessity showing, "our case is not one of those in which it would be merely inconvenient or impractical to transport a witness from a remote location; here, it was plainly dangerous to the witness's life or health."
• Supreme Court had inherent authority, as well as statutory authority under Judiciary Law § 2-b(3), to order the televised testimony.
• Nothing about the enactment of CPL Article 65 suggests that the Legislature intended, sub silentio, to prohibit closed-circuit testimony in other types of cases.
• Likewise, CPL Articles 660 and 680 are, by their plain terms, irrelevant to the unique situation in this case.
• "[G]iven the distant location and infirm condition of the complaining witness, this prosecution could not have gone forward at all if Supreme Court lacked power to provide for the witness's testimony from outside the courtroom. Thus, the reception of such testimony by televised means was, in fact, 'necessary to carry into effect the powers and jurisdiction possessed by [Supreme Court]' in this particular case."

As usual, the First Department delivered a thoughtful and careful analysis of the case.  Here is my take on some of the issues presented:

• As noted by the majority, this statutory issue was not briefed by the parties, although it was preserved below.  The court notes the "possibility of prejudice to the People by reversing on the basis of an issue" that they were not given an opportunity to brief.  The court noted that Court of Appeals' review was warranted on this important issue and that the People would have a full and fair opportunity to brief the statutory authority issue in that court.  Nevertheless, I am a bit troubled by all of this.  Appellate courts function best when they decide cases after receiving the benefit of having issues fully researched and briefed by the parties.  Briefs hone the questions involved and bring out the best authorities to decide the case.  For this reason, I am surprised that the First Department decided this issue without first inviting supplemental briefing from both sides.
• For me, this case boils down to whether Supreme Court's order was a proper exercise of either its "inherent authority" or its statutory authority to enact procedures "necessary" to effect its powers and jurisdiction.  More information is needed about both Supreme Court's "inherent authority" as well as Judiciary Law § 2-b(3).  Regarding § 2-b(3), what is its origin?  Function?  Legislative history?  Both the majority and dissent cite historical U.S. Supreme Court decisions to interpret the term "necessary."  In this context, it would be more helpful to know what the New York Legislature meant when it enacted Judiciary Law § 2-b(3).  Here, again, I think full briefing on the issue would have been helpful.
• CPL Article 65 tell us very little, one way or another, about the "inherent authority"/§ 2-b(3) question.  The majority says that it shows that the Legislature intended to preempt the field of closed-circuit televised testimony.  However, the enactment of Article 65 could be viewed as a mere codification of existing authority and not necessarily a sub silentio prohibition on televised testimony in cases that do not involve child sex crimes.  Statutory construction gets very murky when one has to interpret action from non-action.  In particular, expressio unius est exclusio alterius is typically helpful only if the Legislature gave some consideration to the circumstances that were eventually excluded.  If the excluded circumstances were simply not considered, then there is less of an argument that the statute supports one's proposition.  Here, too, I think more information is needed about the legislative history of CPL Article 65. 
• That there were apparently no use of televised testimony before 1985, when CPL Article 65 was enacted, is of no moment.  After all, the technology for long-distance closed-circuit transmissions was not readily available back then. 

This is an important case to watch for several reasons.  Obviously, whether closed-circuit televised testimony can be used in non-child sex crime cases will be important, particularly in elder abuse prosecutions.  In addition, this case presents important questions about Supreme Court's inherent authority as well as its statutory authority under the Judiciary Law.  Finally, it invites discussion about whether the Appellate Division should reach out and decide issues that have not been fully briefed by the parties.  (LC)