The right to confront witnesses in a criminal case is guaranteed by both the United States and Tennessee Constitutions. But violation of the right to confront witnesses does not necessarily invalidate a criminal conviction if the error is determined to be harmless beyond a reasonable doubt. In the recent Tennessee case of State v. Clark, M2012-01744-CCA-R3-CD (Tenn.Crim.App. 11-21-13), the Court of Criminal Appeals determined the State violated confrontation rights by allowing the use of a video recorded deposition rather than a live witness at trial (absent ‘extraordinary circumstances’ which would have allowed the substitution of the deposition). However, the Court found the error to be harmless beyond a reasonable doubt.

In the Clark case, the defendant was charged with and ultimately convicted of first degree murder, aggravated arson, and other crimes. The defendant had been accused of shooting his brother and his brother’s wife with a shotgun and burning down their home, with the bodies inside. One of the witnesses the state sought to use to establish the defendant premeditated the crime was a coworker of the defendant’s. The coworker was a truck driver who drove regularly to California. Being available for trial would cost him a week of work, which would result in financial hardship. The trial court, on the state’s motion, allowed the state to take the witness’ deposition and use the deposition at trial. The deposition testimony was that the defendant had complained to the witness about the victim and a fence the victim had constructed over the defendant’s driveway. According to the witness, the defendant told the witness he intended to kill the victim if the victim did not remove the fence.

The Court of Criminal Appeals found the trial court erred in in admitting the video deposition. The Court concluded the witness’ financial hardship from missed work did not meet the ‘extraordinary circumstances’ requirement for the use of deposition testimony rather than a live witness at trial. Therefore, the use of the video deposition violated the defendant’s right to confront the witness at trial. However, because the Court also concluded there was additional overwhelming evidence of premeditation, the Court found the error to be harmless beyond a reasonable doubt, and affirmed the convictions.

For more information on the right to confront witnesses in a criminal trial, contact Hindman & Associates.