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.
* Professor of Law, UC Berkeley School of Law. Many thanks to Hadar Dancig-Rosenberg and Itay Ravid for organizing this symposium; to the participants for their helpful feedback; to UC Berkeley Professor of Music Nicholas Mathew, for introducing me to existing critiques of liveness in the music context; to research assistant Kate Bulger for excellent edits; and to the student editors of the Illinois Law Review.
The full text of this Symposium is available to download as a PDF.