New Mexico Supreme Court Holds Skype Testimony Violates Sixth Amendment

In a recent opinion, the New Mexico Supreme Court held that witness testimony, via two-way video conferencing such as Skype, violates a defendant’s right of confrontation under the Sixth Amendment.

In New Mexico v. Thomas, Truett Thomas was charged with first-degree murder and first-degree kidnapping. During his trial, one of the prosecution’s witnesses, who had moved out of the state since the defendant’s arrest, delivered his courtroom testimony via Skype two-way video conferencing.

The defense initially agreed, believing the testimony to be solely related to determining the chain of custody. They announced their misgivings a week later, believing the video testimony would violate defendant’s right to confrontation as guaranteed by the Sixth Amendment. The district court judge later stated he believed defendant’s right to object had been waived, though nobody had discussed waiving confrontation rights with the defendant.

The New Mexico Supreme Court found that as no one had addressed the defendant’s confrontation rights with him, writing “there is no evidence that Defendant understood those rights or that he voluntarily agreed to waive them.” Then, having determined the defendant maintained his confrontation rights, the court applied the requirement in the Supreme Court of the United Sates case Maryland v. Craig to demonstrate “an important state interest” in using video testimony to two-way video transmission, as present in this case.

Here, the court found that prosecution failed to demonstrate that the use of two-way video was “necessary to further an important public policy.” Writing for the court, Chief Justice Charles W. Daniels stated, “Inconvenience to the witness is not sufficient reason to dispense with this constitutional right.”

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