Proposed Amendments to Fed. R. Crim. P. 26: An Exchange: Remote Testimony

Recently, the Supreme Court declined to pass on to Congress a proposed change to Federal Rule of Criminal Procedure 26 submitted to it by the Judicial Conference. In this Article, Professor Friedman addresses this proposal, which would allow for more extensive use of remote, video-based testimony at criminal trials. He agrees with the majority of the Court that the proposal raised serious problems under the Confrontation Clause. He also argues that a revised proposal, in addition to better protecting the confrontation rights of defendants, should include more definite quality standards, abandon its reliance on the definition of unavailability found in the FederalR ules ofE vidence, and allow defendants greaterfl exibility in the use of remote testimony.

Finally, he tentatively offers a suggested revision that addresses the concerns he raises.