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UNITED STATES v. GIGANTE

July 21, 1997

UNITED STATES OF AMERICA against VINCENT GIGANTE, Defendant


The opinion of the court was delivered by: WEINSTEIN

 WEINSTEIN, Senior District Judge:

 This case raises an issue of apparent first impression in the federal courts. A chief witness in this RICO case is too ill to testify in court. He is in the Federal Witness Protection Program, at some distance from this state so that the jury cannot be convened in his presence. It might jeopardize the safety of the witness were the defendant's full counsel staff to be present at the witness' deposition since that would reveal the witness' location and put him in serious danger from criminals against whom he has testified and provided information. Given defendant's claimed serious physical disabilities, it is conceded that he will not attend any deposition at a place convenient to the witness.

 A full hearing was conducted to determine whether it is practicable for the witness to appear in person at trial. Medical reports and testimony for the government and defendant fully supported the government's contention, by clear and convincing proof, that the witness could not appear in court.

 The government seeks to have the witness' testimony taken through closed circuit television. The defendant contends that this would violate his constitutional right to confrontation. The closed circuit system permits the witness to view and hear counsel and defendant, while simultaneously allowing counsel, defendant, judge and jury to view and to hear the witness. The defendant's objection is overruled.

 The optimal way of conducting a trial under American practice is for the witness in person in court to face the defendant and the trier, and to be subject to immediate cross-examination in their presence. See, e.g., Maryland v. Craig, 497 U.S. 836, 849, 110 S. Ct. 3157, 3165, 111 L. Ed. 2d 666 (1990)(historic preference for in-person encounters between accused persons and their accusers). American criminal procedure, however, is pragmatic. It recognizes that this ideal condition can not be made available in every instance if there is to be an effective search for the truth in an atmosphere protecting the defendant's needs for fairness and due process and the public's right to protection against crime. See, e.g., Craig, 497 U.S. 836, 850, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990)(sanctioning the use of closed circuit television to transmit testimony of a witness when "necessary to further an important public policy" and where "the reliability of the testimony is otherwise assured").

 Modification of the face-to-face in-person confrontation rule is exemplified by the extensive hearsay exceptions permitting the trier to rely upon the statements made outside of court. See, e.g., Fed. R. Evid. 803, 804; White v. Illinois, 502 U.S. 346, 356 n.8, 112 S. Ct. 736, 742, 116 L. Ed. 2d 848 (1992)(exceptions to hearsay rule recognized in Federal Rules of Evidence bear sufficient reliability to satisfy requirements of Confrontation Clause); Lee v. Illinois, 476 U.S. 530, 543, 106 S. Ct. 2056, 2063, 90 L. Ed. 2d 514 (1986)(even when hearsay does not fall within a hearsay exception, "it may nonetheless meet Confrontation Clause reliability standards"); United States v. Sasso, 59 F.3d 341, 348-49 (2d Cir. 1995)(incriminating hearsay statements against a defendant); United States v. Matthews, 20 F.3d 538, 544-545 (2d Cir. 1994)(when a declarant is unavailable and his prior out-of-court statements are sufficiently reliable, admission at trial of his hearsay declarations is constitutionally permissible). Depositions of out-of-court witnesses are permitted in criminal cases. See Fed. R. Crim. P. 15 (depositions when due to exceptional circumstances they are in the interest of justice); United States v. Donaldson, 978 F.2d 381, 392-93 (7th Cir 1992)(permitting the government to present deposition testimony of witness who recently gave birth and had other medical complications causing her to be hospitalized the day before she was to testify at trial). Such depositions are allowed even where they are taken pursuant to continental practice where the examination is conducted by the magistrate rather than by the attorneys. See United States v. Salim, 664 F. Supp. 682 (E.D.N.Y. 1987), aff'd, 855 F.2d 944 (2d Cir. 1988).

 Recognizing this history, the Supreme Court, effective December 1, 1996, amended Rule 43 of the Federal Rules of Civil Procedure to provide explicitly for televised presentation of testimony as follows (strike-outs indicate prior language eliminated and underlining material added):

 [EDITOR'S NOTE: TEXT WITHIN THESE SYMBOLS [O>
 
In [O>allotherwise provided by an Act of Congress or bya federal law, these rules, the Federal Rules of Evidence, or other rules adopted by the Supreme Court provide otherwise. The court may, for good cause shown in compelling circumstances and upon appropriate safeguards, permit presentation of testimony in open court by contemporaneous transmission from a different location.

 In the advisory committee notes to these amendments to Federal Civil Rule of Procedure 43, the appropriateness in special circumstances of testimony being transmitted from a location other than the courtroom was recognized:

 
Contemporaneous transmission of testimony from a different location is permitted only on showing of good cause in compelling circumstances. The importance of presenting live testimony in court cannot be forgotten. The very ceremony of trial and the presence of the factfinder may exert a powerful force for truthtelling. The opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition. Transmission cannot be justified merely by showing that it is inconvenient for the witness to attend the trial.
 
The most persuasive showings of good cause and compelling circumstances are likely to arise when a witness is unable to attend trial for unexpected reasons, such as accident or illness, but remains able to testify from a different place. Contemporaneous transmission may be better than an attempt to reschedule the trial, particularly if there is a risk that other--and perhaps more important--witnesses might not be able to be available at a later time . . . .

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