There is a rule of court in New Jersey that can allow the use of a video taped deposition in a criminal trial, if a material witness is unavailable because of death or physical or mental incapacity.  Given the recent rulings by the United States Supreme Court on the Confrontation Clause contained in the Sixth Amendment, the legitimacy of the rule is suspect.

In October 2009, an appellate panel concluded that the use of a video taped deposition violated a defendant’s Sixth Amendment rights even though his attorney had an opportunity to cross-examine the witness at the deposition. In this case, the witness, an employee at a fast food store, told police that the defendant passed a gun to him through a rotating window at the store.  When the case’s trial date was adjourned, the government learned that the witness was going to travel to Pakistan.  At the government’s request, the defendant’s attorney consented to a video taped deposition, where he was allowed to cross-examine the witness.  The video was ultimately put into evidence and the defendant was convicted.

The appellate court reversed the conviction and concluded that the government had not satisfied the clear language of the rule, despite its contention that the witness’s presence in Pakistan was “physical incapacity.”  The clear import of this decision is that the rule will be strictly construed because of the problems it poses with the Confrontation Clause.