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The Sixth Amendment guarantees that criminal defendants have the right to confront witnesses in court — but is that right satisfied when the accusers testify by videoconference from Australia? That was the question Thursday before judges of the 11th U.S. Circuit Court of Appeals, who discussed truth, technology and whether high-tech communication fundamentally differs from face-to-face contact. The case involved Anita Yates and her fianc�, Anton Pusztai, who in 2002 were convicted in an Alabama federal court on charges that they operated an unlicensed Internet pharmacy that illegally sold Viagra and other prescription drugs, with revenues of more than $6 million. Trial testimony revealed that some orders were placed through an Internet business established in Australia. Senior U.S. District Judge Anthony A. Alaimo allowed witnesses who did not want to come to the U.S. to testify via two-way videoconference. Sentenced to six and 15 years in prison, respectively, Yates and Pusztai appealed. Last November, a three-judge panel of the 11th Circuit, Chief Judge J.L. Edmondson, Senior Judge Emmett R. Cox and visiting U.S. District Judge Maurice M. Paul ruled that the two-way videoconference violated the defendants’ Sixth Amendment rights. The case, U.S. v. Yates, No. 02-13654, was one of the handful the full 11th Circuit agreed to rehear. On Thursday, several 11th Circuit judges questioned whether technology could capture the nuances of personal communication. Judge Charles R. Wilson asked Michael A. Rotker, the lawyer for the U.S. Department of Justice, about a hypothetical situation in which a witness testifies as his knees are knocking. Jurors might assume the witness is lying, Wilson said, but with videoconferencing such verbal cues might go unseen — or be hidden by a camera operator trying to influence a jury. “Would you agree with me that a jury is better able to assess the credibility and demeanor of a witness in person?” Wilson asked. Rotker agreed, but said a videoconference sometimes offers the best available alternative, because the witness and accused can see each other, and some confrontation is better than none. The Supreme Court in 1990 ruled that witnesses may testify using one-way video transmission under extraordinary circumstances, such as protecting a child witness in an abuse case. In the case, Maryland v. Craig, 497 U.S. 836, the court said, “A defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” “The purpose of face-to-face confrontation is to make it harder to lie at trial,” Rotker told the 11th Circuit on Thursday. “From the standpoint of making it harder to lie, [videoconferencing] is certainly superior to a one-way procedure.” “Who says?” Judge Rosemary Barkett asked. She said that the psychology and physiology of communicating may change when people aren’t face to face. “We have all done teleconferencing. You act differently. You respond differently,” she said to Rotker. “You have to concede there is some difference, but then your argument is there is no difference.” Rotker said the right to confront witnesses is not absolute, and that a two-way videoconference forces a witness to face an accuser. “It has to be better than no confrontation at all,” he said. The government also argued face-to-face confrontation is less of a requirement than a “preference” that “must occasionally give way to considerations of public policy and the necessities of the case” — language that comes from an 1895 U.S. Supreme Court case, Mattox v. United States, 156 U.S. 237. Judge Edward E. Carnes questioned the applicability of the 110-year-old ruling. “They didn’t have video transmission back then,” Carnes said. “They didn’t have videotaping back then, and they didn’t have Craig.” The defendants’ attorneys faced questions about what satisfies the constitution’s requirements for a “confrontation.” Judge Stanley Marcus asked why it isn’t enough for the witness and defendant to see each other on video monitors. “For reasons psychological and legal,” said Sam Heldman of Gardner, Middlebrooks, Gibbons, Kittrell & Olsen, the appellate lawyer for defendant Yates. Heldman said that an “immense difference” exists for a witness “between talking to a TV screen” and sitting 12 feet from a person you might send to jail. “There is still something in human nature about being present,” Heldman said, adding that the pressure of facing the court on Thursday would diminish if he could argue the case from 1,000 miles away.

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