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- Title
THE FALLACY OF "LIVE" CONFRONTATION: A SURPRISING LESSON FROM VIRTUAL COURTS.
- Authors
Roth, Andrea
- Abstract
As the COVID pandemic besieged court systems, many commentators insisted that "virtual" procedures were undesirable or even unconstitutional, given a criminal defendant's right to be "confronted with" the witnesses against him. Proposals for modified procedures were judged largely by their fidelity to "liveness." This Essay explores an underappreciated dark side to equating the right of confrontation with "liveness." In fact, COVID's lesson should be precisely the opposite: confrontation should be recognized not merely as a right to specific in-person trial procedures but as a right to meaningful scrutiny of the government's proof. As such, the right of confrontation will often be better protected through "virtual" forms of scrutiny outside, rather than inside, the courtroom, from access to witnesses' prior statements, to a broader right to impeach with extrinsic evidence, to a right to impeach nonhuman evidence that cannot be cross-examined "live." The Essay draws upon similar critiques of "liveness" from the history of sound reproduction, in the context of music.
- Subjects
CORONAVIRUS diseases; RIGHT of confrontation; CRIMINAL defendants; SOUND recording &; reproducing; MUSIC
- Publication
University of Illinois Law Review, 2023, Vol 2023, Issue 5, p1657
- ISSN
0276-9948
- Publication type
Article