By Andrea Westerfeld
Assistant County & District Attorney in Ellis County
One change that the Covid lockdowns ushered in was a new familiarity with Zoom and other videoconference technology. It’s no longer a tool of solely the young and tech-savvy, and everyone got a crash course in the world of web cams, microphones, and virtual backdrops. Even after the lockdowns ended, this new convenience seems to have stuck around. Why bring in witnesses from distant locations when they can testify remotely instead?
Remote testimony is nothing new in criminal law. Courts have been dealing with rules for closed-circuit television (CC-TV), recordings, and video testimony for more than 30 years. But with the surge of interest in remote options, it is important to review these rules to make sure we take advantage of the opportunities of modern technology while preserving the defendant’s rights and maintaining the courtroom as a crucible for finding the truth.
Maryland v. Craig
The seminal case on remote testimony is Maryland v. Craig, a 1990 case from the Supreme Court of the United States.[1] Maryland, like several states at the time, had a law authorizing a child victim of certain crimes to testify via CC-TV. The procedure involved the witness testifying in a separate room with only the prosecutor and defense attorney present, while the defendant, judge, jury, and anyone else in the courtroom watched on a one-way CC-TV feed. The witness could not see or hear the defendant, but the defendant could electronically communicate with counsel, and the parties could make and obtain rulings on objections.
To justify the procedure, the State called several expert witnesses to testify that each of the four child witnesses would have “considerable” difficulty testifying in the defendant’s presence, would stop talking and withdraw, or would become highly agitated and refuse to talk.[2] The trial court made a finding that the children would suffer serious emotional distress if required to testify in the defendant’s presence and allowed them to testify.
An earlier Supreme Court case, Coy v. Iowa,[3] had found that the Confrontation Clause was violated when two child witnesses were permitted to testify from behind a screen, blocking the defendant’s view. But in Craig, Justice O’Connor wrote that the Confrontation Clause’s guarantee to a face-to-face confrontation of witnesses was not an absolute right and could be bypassed in some circumstances.[4]
The key distinction between Coy and Craig was the individualized nature of the protection. Iowa’s rule in Coy involved a blanket law that applied to all child witnesses. The Supreme Court criticized this as a “legislatively imposed presumption of trauma.”[5] But in Craig, the State put on specific evidence about the trauma that the specific witnesses in the case would face testifying live, with experts testifying how each specific child would be affected by testifying in front of the defendant.
The Craig court identified four key elements of the Confrontation Clause’s protection:[6]
1) Physical presence of the witness. Face-to-face confrontation reduces the risk that a witness will wrongfully implicate an innocent person because it is “more difficult to tell a lie about a person to his face than behind his back”;
2) Giving statements under oath. This impresses the witness with the seriousness of the matter and giving the protection of perjury against false statements;
3) Cross-examination. “The greatest legal engine ever invented for the discovery of truth”; and
4) Observation of the witness’s demeanor by the trier of fact. A jury’s ability to determine credibility of witnesses is enhanced by being able to view them in person.
Thus, the Craig court determined that the Confrontation Clause has a preference for face-to-face confrontation at trial, but that preference can give way to important public policy and necessities of an individual case. Denial of physical, face-to-face confrontation is permitted as necessary only to further an important public policy and, where the reliability of the testimony is otherwise assured, by ensuring the other goals of the Confrontation Clause are met.[7]
In the specific instance of Craig, the Supreme Court found that protecting minor victims of sex crimes from further trauma and embarrassment is a compelling interest. The State supported that interest with testimony specific to the witnesses in the case, not a general class of witnesses. And the other protections of the Confrontation Clause were met, because the witnesses were still placed under oath, the defendant was able to fully cross-examine them, and the jury was able to observe the witnesses’ demeanor.[8]
What is a compelling interest?
The most important factor in determining whether remote testimony will be allowed is whether the interest being protected is a compelling public policy interest. Craig and later decisions by the Texas Court of Criminal Appeals (CCA) have laid out some guidelines to consider when establishing a compelling interest.
One factor is whether the witness is a child or an adult. The Craig court noted that protecting children from being further traumatized and embarrassed is an obvious interest, and one of the CCA’s main cases on remote testimony involved child witnesses.[9] By contrast, adults “are generally considered to be made of sterner stuff and capable of looking after their psychological well-being.”[10] Adults wishing to testify remotely will thus need to provide more justification of their need than a child. An adult who was a victim of the offense will be able to justify that more than one who was merely a witness, as a victim is presumed to have significantly more trauma in facing the defendant.[11]
In addition to protecting emotional needs, the CCA has considered the physical protection of witnesses as well. In one case, Romero v. State, the CCA found that a witness had not shown a significant enough reason where he was merely afraid of the defendant based on the offense.[12] But in McCumber v. State, a witness reported that she had experienced threats and break-ins soon after reporting the victim’s outcry to law enforcement.[13] She believed that they were related to the case and attributed it to the defendant’s associates. She was so afraid that she had fled the state before the trial, and she refused to voluntarily return to testify. The court concluded that she had shown a legitimate fear of retaliation and could testify remotely.
The key distinction between the two cases was the legitimacy of a potential danger to the victim. The McCumber victim had received specific threats and been so afraid of them that she fled the state and refused to return. But the Romero witness could not articulate any threats or anything the defendant had done beyond the offense itself. A witness wanting to testify remotely should articulate any specific or implied threats by the defendant or those associated with him. Note that the threats in McCumber were merely by the defendant’s “associates,” and the Romero court noted that the defendant was not part of any organization or street gang “from which retaliation might be anticipated.”[14] It is therefore not only the defendant who can cause a legitimate fear of retaliation in a witness.
Finally, practical considerations can be a compelling interest to justify remote testimony. Lower courts have approved of remote testimony for witnesses who were:
• in the hospital with a heart attack;
• suffering from Stage IV cancer and whose doctors said travel would be dangerous to her health;
• in a high-risk pregnancy and advised not to travel;
• elderly, living out of state, and suffering from serious heart problems; and
• in active-duty military currently deployed overseas.[15]
Several of these lower-court cases were favorably cited by the CCA in a recent case, Haggard v. State, as potentially legitimate justifications for remote testimony.[16] But the CCA also drew a strong line that only an important public policy can justify remote testimony, not mere inconvenience or preference. In Haggard, the SANE nurse moved out of state before trial but agreed to return for trial as long as the State paid her expenses. But the Friday before trial, she changed her mind. She cited not being paid by her employer or the State and inconvenience (because she would need to travel to Texas again a week later) as her reasons for not wanting to testify in person. The CCA noted that the State could have subpoenaed her but chose not to, and “mere inconvenience to a witness” was not enough to justify discarding face-to-face confrontation.[17]
In all, reasons that have been found as important public policy to justify remote testimony include causing trauma to child witnesses and possibly adult victims, fear of specific retaliation or danger from the defendant or his associates, serious medical issues, or a witness being out of the country or out of the State’s subpoena power. Mere discomfort, generalized fear, and inconvenience are not sufficient.
Setting up your case for remote testimony
If you have a case with an important public policy reason, what do you need to do to ensure that remote testimony is actually permitted (and upheld on appeal)?
First, see if a particular statute applies or if you are making a general necessity request. In Code of Criminal Procedure Art. 38.071, child witnesses in certain cases, including murder and sexual offenses, may testify via closed-circuit television if the trial court finds that the victim is “unavailable to testify in the presence of the defendant.”[18] This required finding saves this statute from Confrontation Clause violations, unlike Coy’s general rule applicable to all child victims.[19] Additionally, Art. 38.076 provides for testimony of a forensic analyst by videoconference. However, this provision applies only if the use of videoconferencing is approved by all parties and the court.[20]
Whether proceeding under statute or a general request, the most important thing is to have case-specific findings made by the trial court. In Craig, these were findings both that the procedure was necessary to protect the specific witness testifying and that the child would be traumatized by the defendant’s presence rather than the courtroom generally.[21] In McCumber, the CCA held that these findings do not need to be factually detailed. The court does not even need to explain the specific reasons on the record.[22] The requirement for “case specific findings” simply means that the finding must be that this particular witness needs an accommodation rather than a generalized finding, such as that all child witnesses would be traumatized by face-to-face testimony.[23]
For a court to make case-specific findings, it needs to have evidence before it. Some form of evidence should be put on, as opposed to the attorneys simply summarizing the need. This could include the witness personally explaining why she is afraid to appear in person or what medical issues she might have. It could also include testimony from a doctor or other expert on the witness’s medical condition or the psychological effect of testifying in front of the defendant on the witness stand. An investigator could also explain why a witness could not be subpoenaed before the issue arose. Remember, as a preliminary ruling on the admissibility of evidence, the Rules of Evidence do not apply.[24]
In addition to explaining the public policy reasons for remote testimony, be sure to put on the record how the remote testimony will actually occur so as to preserve the other elements of Confrontation Clause protection—being under oath, being subject to cross-examination, and the jury being able to observe the witness’s physical demeanor.[25]
First, the witness should be placed under oath and impressed with the importance of his testimony. The judge can warn the witness that he is still under oath and bound by the penalties of perjury even though he is not physically present in the courtroom.
Second, the witness must be subject to cross-examination. This includes not only that the defense attorney is able to ask questions but also that the defendant is able to communicate with his attorney about any questions he needs to ask. With Zoom and other videoconferencing technology, the witness typically appears on a screen in the courtroom and everything otherwise proceeds as normal. In other cases, the defendant may be in a separate room. The proceeding outlined for child witnesses in Art. 38.071, for example, places only the judge, court reporter, attorneys, and witness in the room. But the defendant must be allowed to communicate with his attorney, either contemporaneously or during periods of recess.[26] Outline the exact procedure that will be followed in your particular case.
Finally, the witness must be able to be seen clearly enough by the trier of fact to evaluate the witness’s demeanor. It would be helpful to explain on the record—for the benefit of appellate justices who will not see your courtroom or how the remote testimony occurs—exactly how the set-up will work. If there is a large, well-lit screen where the witness can be easily seen by everyone in the courtroom, that is ideal. If the witness will be on a very small screen or has connection problems that would make it difficult to be seen and heard, consider other options that will make him more easily viewable.
Special rules for the defendant
There are a few special rules and applicable statutes if the defendant is the one who will appear remotely. Generally speaking, a defendant has the right to physical presence at all critical phases of trial, which includes not only the trial itself but also plea proceedings.[27] This is a right under both the Confrontation Clause and the Due Process Clause, which extends it to apply not only to trial proceedings but also to revocation or adjudication hearings.[28] Additionally, in Texas there is a statutory right for the defendant to be physically present at trial for all felonies and any misdemeanors where jail is a potential punishment, unless he voluntarily absents himself from the trial after entering a plea in a bench trial or selecting a jury in a jury trial.[29]
There are two statutes that specifically provide for videoconferencing. Article 15.17 of the Code of Criminal Procedure permits magistration to be done by videoconference and treats it the same as an in-person magistration.[30] Because this is not a trial proceeding, the Confrontation Clause guarantee to physical presence is not yet in play.
The second statute is for any plea or waiver of rights that is required to be done in “open court.” Article 27.18 provides that these proceedings can be done via videoconferencing so long as the State and defendant file written consent to do so.[31] The videoconference procedure must allow for simultaneous video and sound between the judge, attorneys, and defendant, and the defendant must be able to communicate privately with his attorney upon request. This is a procedure some counties commonly use to take pleas from jail rather than going through the expense and time of physically transporting inmates to the courtroom. It can even be used to take a plea remotely from another county.[32] An Art. 27.18 waiver should be made part of the plea papers in the case. Because consent by the defendant is required, it does not run afoul of any constitutional protections.
During the Covid lockdowns, emergency orders from the Texas Supreme Court authorized courts to modify court procedures, including requiring anyone in a hearing, deposition, or proceeding of any kind to participate remotely.[33] However, the Court of Criminal Appeals held in Lira v. State that the emergency order could not grant the trial court authority where none existed. A trial court has authority to enter a felony conviction only if a defendant appears “in person and in open court” to enter his plea or waives his rights pursuant to Art. 27.18. Because it is a matter of the trial court’s authority to act, the emergency order did not permit the trial court to force the defendant to appear remotely.[34]
While the Covid-era emergency orders are no longer in effect, the Lira decision is an important reminder that Art. 27.18 is mandatory for the court to have authority to take a plea. Any future emergencies or a trial court’s preference cannot overcome this constitutional and statutory protection. If pleas are taken via videoconferencing, make sure the defendant has waived his rights pursuant to the statute.[35]
The right to be physically present is a waivable-only right.[36] That means a defendant does not have to object if he is prevented from being physically present. He must instead affirmatively waive the right to be physically present. Nothing is more frustrating than everyone going along with a procedure and the case later being reversed on appeal because no one remembered to just ask the defendant if he waived his right to be present in the courtroom!
Remember that a defendant voluntarily absenting himself from trial is considered “a waiver of that right by action”—the defendant’s actions of being disruptive or choosing not to return to trial amount to an affirmative waiver.[37] If a defendant acts disruptively, having him appear remotely may be a less restrictive way of stopping the disruption without entirely removing him from trial. Just make sure in that case that the judge makes very clear findings on the record. Also ensure that the defendant has the ability to consult with his attorney even while appearing virtually.[38]
Conclusion
In the modern world, videoconferencing has become ubiquitous. We use it regularly, whether for work or for pleasure. It can be a valuable tool in trial for witnesses who cannot appear in person. But this value must be balanced against the defendant’s statutory and constitutional rights. Remote testimony can always be agreed to by the parties. But if the defendant objects, it must be limited only to the most important public policy reasons, not a mere matter of inconvenience or preference by the witness or the parties. By keeping these goals in mind and following the rules laid out here, remote testimony can become an effective part of your trials in the future.
[1] Maryland v. Craig, 497 U.S. 836 (1990).
[2] Id. at 843.
[3] 487 U.S. 1012, 1021 (1988).
[4] Craig, 497 U.S. at 845.
[5] Coy v. Iowa, 487 U.S. 1012, 1021 (1988).
[6] Craig,497 U.S. at 846.
[7] Id. at 851.
[8] Id. at 856-57.
[9] See Marx v. State, 987 S.W.2d 577 (Tex. Crim. App. 1999).
[10] Romero v. State, 173 S.W.3d 502, 506 (Tex. Crim. App. 2005).
[11] Id. at 506 (noting, among other reasons, witness had not shown adequate reason was that he was merely a bystander rather than a victim).
[12] Id.
[13] McCumber v. State, 690 S.W.3d 686, 692-93 (Tex. Crim. App. 2024).
[14] Romero, 173 S.W.3d at 506.
[15] Lara v. State, No. 05-17-00467-CR, 2018 WL 3434547, at *4 (Tex. App.—Dallas 7/17/18, pet. ref’d) (not designated for publication) (heart attack); Paul v. State, 419 S.W.3d 446 (Tex. App.—Tyler 2012, pet. ref’d) (cancer); Acevedo v. State, No. 05-08-00839-CR, 2009 WL 3353625 (Tex. App.—Dallas 10/20/09, pet. ref’d) (not designated for publication) (pregnant); Stevens v. State, 234 S.W.3d 748 (Tex. App.—Fort Worth 2007, no pet.) (elderly); Rivera v. State, 381 S.W.3d 710 (Tex. App.—Beaumont 2012, pet. ref’d) (military).
[16] Haggard v. State, 612 S.W.3d 318, 328 (Tex. Crim. App. 2020).
[17] Id. at 326-28.
[18] Tex. Code Crim. Proc. Art. 38.071, §1.
[19] Coy, 487 U.S. at 1021.
[20] Tex. Code Crim. Proc. Art. 38.076(b).
[21] Craig, 497 U.S. at 855-56.
[22] McCumber, 690 S.W.3d at 691 (trial court’s statement “there is a necessity shown” was sufficient).
[23] McCumber, 690 S.W.3d at 692; compare to Coy, 487 U.S. at 1021 (holding state law authorizing remote testimony for all child witnesses was not valid).
[24] Tex. R. Evid. 104(a).
[25] Craig, 497 U.S. at 846.
[26] Tex. Code Crim. Proc. Art. 38.071, §3(a).
[27] Lira v. State, 666 S.W.3d 498, 511 (Tex. Crim. App. 2023).
[28] Id. (Confrontation Clause); Hughes v. State, 691 S.W.3d 504, 519 (Tex. Crim. App. 2024) (Due Process).
[29] Tex. Code Crim. Proc. Art. 33.03.
[30] Tex. Code Crim. Proc. Art. 15.17(a).
[31] Tex. Code Crim. Proc. Art. 28.17(a).
[32] Tex. Code Crim. Proc. Art. 28.17(d).
[33] Supreme Court of Texas, First Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket Nos. 20-9042, 596 S.W.3d 265, 265–66 (Tex. 2020).
[34] Lira, 666 S.W.3d at 511-13.
[35] The Lira court indicated that the failure may be harmless if the record is clear that the defendant did waive his rights and there was simply an incorrect written form. Lira, 666 S.W.3d at 518-19. It is the defendant’s waiver that is required for the court to have authority to act, not necessarily the form.
[36] Hughes v. State, 691 S.W.3d 504, 515 (Tex. Crim. App. 2024) (constitutional rights); Tates v. State, ___ S.W.3d ___, 2025 WL 1812826, at *5 (Tex. Crim. App. July 2, 2025) (not yet published) (statutory rights).
[37] Tates, 2025 WL 1812826, at *5.
[38] Id. (criticizing trial court requiring defendant to appear virtually and muting him for outbursts without giving him any ability to consult with his attorney during the trial).