Are online criminal court hearings constitutional?

Due to the pandemic, courts have resorted to online hearings. In the Philippines, the platform used in most courts is Microsoft Teams. Even hearings in criminal cases are now conducted online. Direct examinations and cross-examinations of witnesses are currently done over the internet for fear of infection.

There are lawyers who say that online criminal court hearings may be considered violative of the constitutional right of the accused to confrontation of witnesses. According to the 1987 Constitution:

In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable.[1]
The accused shall enjoy the right to meet the witnesses face to face. This is called the "confrontation clause" which ensures and promotes fairness in the criminal justice system. Under this right, an accused may demand to see witnesses eye to eye, hear them speak and ask (through counsel) cross-examination questions face to face. This right guarantees the accused an opportunity to face his or her accusers and to put their honesty and truthfulness to test before the jury.[2]

The confrontation clause, however, has expanded in meaning throughout the years. Currently, it includes the opportunity to have the judge see the demeanor of the witness. This gives the accused the chance to prove his innocence (or, at least, the lack of proof beyond reasonable doubt) by attacking the credibility of the witness and the weight of his/her testimony not only by cross-examination questions but also by his/her outward behavior during trial. Hence, the Supreme Court has held that the confrontation clause now has a two-fold purpose: (1) primarily, to afford the accused an opportunity to test the testimony of the witness by cross-examination; and (2) secondarily, to allow the judge to observe the deportment of the witness.[3][4]

In an online court hearing, especially in criminal actions, an important challenge to judges and prosecutors is to make sure that no objection based on the confrontation clause can be interposed by the accused, thereby resulting in acquittal. The clarity of the video or audio outputs and inputs must be ensured, especially during the cross-examination of a witness.

Of course, this is not to say that there is not enough justification for online court hearings during this pandemic. Although the Constitution does express a strong preference for face-to-face confrontation at trial, such preference must occasionally give way to considerations of public policy and the necessities of the case.[5] For example, during this pandemic, the right of the accused to good life and good health obviously outweighs the necessity for a face-to-face physical trial. However, with the same argumentative strength, it must be emphasized that the confrontation clause cannot be done away with or treated lightly.

Another example of an exception to the general rule on confrontation is the case of People v. Sergio.[6] In this case, the private complainant, Mary Jane Veloso (Mary Jane), was under detention in Indonesia. She was scheduled to be killed with the death penalty (by firing squad) but, fortunately, the Philippine Government was able to convince the Indonesian Government to delay her execution while the former attempts to convict the accused who are allegedly behind Mary Jane's arrest for cross-border transfer of illegal drugs. Mary Jane's conviction, the waivable nature of the right of confrontation and the doubtful application of the rule on parts of res gestae are what the Supreme Court used to arrived at the conclusion that face-to-face confrontation of the witness Mary Jane can be replaced with a deposition under the auspices of the trial court judge and with the use of written questions.[7] Ironically, this is precisely the reason why the confrontation clause in the Constitution exists, i.e., to prevent the conviction of a defendant upon written evidence (such as depositions or ex parte affidavits) without that defendant having an opportunity to face his or her accusers and to put their honesty and truthfulness to test before the jury.[8]

[1] Section 14, Article III.




[5] Maryland v. Craig, 497 U.S. 836 (1990).