Criminal Sexual Conduct and Video vs. In-Person Court During COVID

Michigan Criminal Sexual Conduct (CSC) cases are what we concentrate our practice on at Prain Law, PLLC. All CSC charges are extremely serious, such as the Capital offense of First Degree Criminal Sexual Conduct, MCL 750.520b and the 15 year offense of Third Degree Criminal Sexual Conduct, MCL 750.520d. That's why it's no wonder that the use of Zoom and other video technology to conduct certain hearings in serious CSC cases can leave the accused Defendant feeling like their Constitutional rights are taking a backseat.

Here, we address the question "Despite COVID, don't I have a right to face the witnesses against me in person in Court in my Criminal Sexual Conduct case?"

"Zoom" video technology has proven very useful in the legal world, and staying safe and healthy is always a top priority. But there's no doubt that in certain hearings where witnesses are actually testifying, allowing them to do so on video over Zoom presents an obstacle in terms of every accused person's Constitutional right to see, hear, and question (or "confront") the witnesses against them, commonly known as the "Sixth Amendment Right of Confrontation," or simply the "Confrontation right." The right of Confrontation has filled volumes upon volumes of legal texts, but here, we are concerned about Confrontation in the context of Zoom court hearings due to COVID.

If you're being prosecuted for some low-level misdemeanor, unless you go to trial, it is very unlikely that there will be any hearings where witnesses actually testify. But with the exception of Fourth Degree Criminal Sexual Conduct, MCL 750.520e, and Indecent Exposure, all Michigan CSC charges and other "Sex Crimes" are felonies, and that means there are several types of hearings where witnesses may testify besides just the trial itself (most notably, the Preliminary Examination).

As you are probably aware, ever since the shut-down due to COVID in March of 2020, our Michigan Courts have adopted special procedures, guided by the recent Administrative Orders of the Michigan Supreme Court, and they rely heavily on holding Court hearings via Zoom. This is fine (and actually more convenient) for routine "check-up" type hearings like Pretrials and Status Conferences...

But how is this crucial right of Confrontation being protected in Criminal Sexual Conduct hearings requiring witness testimony being protected when the accuser or another witness could be testifying over Zoom while also reading things on the internet, texting with other witnesses, taking cues from someone in the background, etc., not to mention all of the technical problems with connection speeds, interruptions, time delays, computers freezing up, poor resolution and visibility, and the like? Recently, a funny story went viral where a filter turned a lawyer into a cat during a Zoom hearing. We'll admit, it was quite funny, but it might not be so funny if it were your case where you're accused of a serious CSC crime and your life and future are at stake.

This is even more of a problem where the charge is Criminal Sexual Conduct, because in every trial, the Judge reads standard Michigan Criminal Jury Instruction 20.25, stating the law that the Prosecution can base a CSC conviction off of the word of the accuser alone - there is no requirement that they corroborate the allegations with DNA, scientific evidence, or other witnesses.

Even the Supreme Court has found that the reasoning behind this right of face-to-face Confrontation is that Judges and Juries should be deciding whether or not to believe a witness / accuser under circumstances where the witness actually has to face the person they're accusing and state their allegations to their face and in their presence, It makes complete sense (just think of the common phrase "...then why don't you say it to my face?"). There's no doubt that video testimony over Zoom diminishes this. But as with every Constitutional right, the Confrontation right is a qualified right, and many exceptions have been carved out in the law over time.

RELATED: click here to read about the Michigan Criminal Sexual Conduct Court process.

In Michigan, you may be surprised to learn that the groundwork for Zoom video Court hearings was laid long before COVID in the Michigan Court Rules ("MCR"), the rules governing our Court procedures. MCR 6.006, Video and Audio Proceedings, addresses the use of this technology in criminal cases. What the Rule basically says is this:

  • Courts may hold the following types of hearings by video (remember, this was before COVID, and this part of the Rule actually contemplates situations where the Defendant is joining the hearing via video from Jail, Prison, or elsewhere), none of which typically involve testimony by anyone except the Defendant: ​​​​​​
    • Initial Arraignment on the Warrant or Complaint
    • Probable Cause Conferences (PCC)
    • Arraignments on the Information (AOI)
    • Pretrial Conferences
    • Pleas
    • Sentencing (on Misdemeanors)
    • Show Cause hearings
    • Waivers and Adjournments of Extradition
    • Referrals for Forensic Determinations of Competency
    • Preliminary Examination Waivers
    • Postjudgment Motions to amend restitution

  • Hearings involving witness testimony are treated differently because Confrontation comes into play. The Rule breaks-down these types of testimonial hearings into two main types: Preliminary Examinations and "Other Proceedings." In either case, in order to have a video hearing, the Defendant must either be physically present in the Courtroom, or waive their right to be physically present.

  • for Preliminary Examinations: if either the Prosecution or Defense makes a "Motion" (a request), the Court can hear the testimony by video of an Expert Witness even without finding a specific, "sound" reason ("good cause"), or "any other person" by video upon a showing of "good cause." However, under MCL 766.11a, the following witnesses may NOT testify by video if you object: "the complaining witness, an alleged eyewitness, or a law enforcement officer to whom the defendant is alleged to have made an incriminating statement.

  • for Other Proceedings: if either the Prosecution or Defense makes a Motion, the Court can hear the testimony of a witness by video upon a showing of "good cause." This includes the following types of hearings:
    • Proceedings to revoke special statuses, such as under the Holmes Youthful Trainee Act (HYTA)
    • Probation Revocation hearings
    • Sentencings
    • Competency hearings
    • Evidentiary hearings

  • for Trials: the Court may take video testimony if the parties consent. If a party does not wish to consent to video, the Court cannot force them to state their reason for not consenting. This rule regarding trials was recently affirmed by the Michigan Supreme Court in their June 22, 2020 decision in People v. Jemison, Case No. 157812. Jemison had been convicted of Criminal Sexual Conduct 1st Degree in one of the old Wayne County Detroit Rape Kit test cases in 2029, before COVID. Despite Jemison's objection, the Court allowed a DNA expert to testify from out of State by video. The Supreme Court said Jemison was denied his Confrontation right by this. The case was decided during COVID, but the trial (and therefore the context of the decision) was in the pre-COVID world.

RELATED: click here to view the Michigan Supreme Court's helpful Remote Court Participation Chart that summarizes the above (May 11, 2020).

Since the shut-downs due to COVID, the Michigan Supreme Court has continually issued Administrative Orders ("AO") guiding Court procedures in these times. Notably, Michigan Supreme Court AO 2020-6 from April 7 of 2020 even allows the Judge to participate in hearings from remote locations. AO 2020-6 makes it clear that as we deal with Zoom video technology during these "unprecedented" times, "such procedures must be consistent with a party's Constitutional rights."

If you or someone you care about is currently under investigation or facing pending charges of Criminal Sexual Conduct in Michigan during these unprecedented times, don't mess around with a "general" practitioner Criminal Defense Attorney. Contact Prain Law, PLLC, your Michigan Criminal Sexual Conduct Attorney, immediately at (248) 731-4543, or fill-out our Contact Form. As with any trying situation, the right professional is often the difference between which one of two very different futures a person charged with CSC faces.

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Prain Law, PLLC is focused only on the types charges featured on our website. This helps us deliver the decisive, effective advocacy for which our clients know us. We only serve individuals currently under investigation or who have a current case pending in court. Our firm does not represent injury victims, defendants who have already taken a plea or have been sentenced, or those seeking to expunge a criminal record. We do not respond to anyone who is not involved in a pending investigation or who has a court case for a type of charge we do not handle, but we wish you the very best of luck.