FSM SUPREME COURT TRIAL DIVISION
Cite as Kosrae v. Tilfas, 22 FSM R. 72 (Kos. S. Ct. Tr. 2018)
STATE OF KOSRAE,
Plaintiff,
vs.
SEPE S. TILFAS,
Defendant.
CRIMINAL CASE NO. 54-15
ORDER GRANTING REMOTE WITNESS TESTIMONY VIA VIDEO CHAT; SETTING PLEA HEARING/TRIAL
Dennis K. Yamase
Specially Appointed Justice
Decided: October 5, 2018
APPEARANCES:
For the Plaintiff:
Snyder H. Simon, Esq.
Assistant Kosrae Attorney General
P.O. Box 870
Tofol, Kosrae FM 96944
For the Defendants:
Yoslyn G. Sigrah, Esq.
P.O. Box 3018
Kolonia, Pohnpei FM 96941
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Article II of the Kosrae Constitution provides for the constitutional rights of the people of Kosrae and also guarantees the right to be confronted by accusers. Kosrae v. Tilfas, 22 FSM R. 72, 75 (Kos. S. Ct. Tr. 2018).
In all Kosrae State Court criminal trials, the testimony of witnesses must be taken orally in open court, unless otherwise provided by an Act of the Kosrae State Legislature or by a Kosrae State Court rule. Kosrae v. Tilfas, 22 FSM R. 72, 75 (Kos. S. Ct. Tr. 2018).
The criminal procedure rules are silent about whether video testimony is admissible in a criminal trial, and there is no legislation on this. Kosrae v. Tilfas, 22 FSM R. 72, 75 (Kos. S. Ct. Tr. 2018).
Rule 26 does not seem to preclude the admissibility of video testimony because remote video
testimony will be taken orally in open court as required by the rules. Kosrae v. Tilfas, 22 FSM R. 72, 75 (Kos. S. Ct. Tr. 2018).
Whether remote video testimony is admissible in a criminal trial is left to the court's sound discretion since Rule 26 does not seem to preclude the admissibility of video testimony because the remote video testimony will be taken orally in open court as required by the rules. Kosrae v. Tilfas, 22 FSM R. 72, 75 (Kos. S. Ct. Tr. 2018).
Live video testimony is not the equivalent of in-person testimony, and the decision to excuse a witness's presence in the courtroom should be weighed carefully. Kosrae v. Tilfas, 22 FSM R. 72, 75 (Kos. S. Ct. Tr. 2018).
Criminal Rule 2 which requires that the Rules be construed to provide fairness in administration and the elimination of unjustified expense and delay in criminal proceedings. Kosrae v. Tilfas, 22 FSM R. 72, 75 (Kos. S. Ct. Tr. 2018).
Although remote testimony via video chat is not equivalent to in-person testimony, when the testimonies of the alleged victims seem to be crucial to the determination of the issues, the court will exercise its discretion to ensure a fair and just criminal trial by allowing the alleged victims to testify via video chat at trial. Kosrae v. Tilfas, 22 FSM R. 72, 75-76 (Kos. S. Ct. Tr. 2018).
The confrontation clause requires the defendant to cross examine the adverse witness face-to-face, thereby permitting the finder of fact to evaluate the witness's credibility, but this is not an absolute right. Kosrae v. Tilfas, 22 FSM R. 72, 76 (Kos. S. Ct. Tr. 2018).
Confrontation rights may, in limited circumstances, be satisfied without a physical, face-to-face confrontation at trial when the reliability of the testimony is otherwise assured and when there is an individualized determination that the denial of a face-to-face confrontation is necessary to further an important public policy. Kosrae v. Tilfas, 22 FSM R. 72, 76 (Kos. S. Ct. Tr. 2018).
Testimony may be admissible so long as it contains the essential indicia of reliability, including 1) the giving of testimony under oath; 2) the opportunity for cross examination; 3) the ability of the fact-finder to observe demeanor evidence; and 4) the reduced risk that a witness will wrongfully implicate an innocent defendant when testifying in his presence. Kosrae v. Tilfas, 22 FSM R. 72, 76 (Kos. S. Ct. Tr. 2018).
When the traditional indicia of reliability safeguards remote video testimony, a court must decide whether, under the case's circumstances, allowing witnesses to testify via video chat is necessary to further an important public policy. Kosrae v. Tilfas, 22 FSM R. 72, 76 (Kos. S. Ct. Tr. 2018).
Public policy supports justly resolving criminal cases while allocating resources efficiently within the criminal justice system. Kosrae v. Tilfas, 22 FSM R. 72, 76 (Kos. S. Ct. Tr. 2018).
A defendant's constitutional right to confront his accuser is not absolute. It can be met even without a face-to-face confrontation when it is necessary to further an important public policy and it is assured that the testimony is reliable. Thus, when the alleged victims testify by appearing visibly on a screen to the court and to the defendant and her counsel, these witnesses will, through video chat, deliver their testimonies orally, under oath, and in open court where the defendant will have an opportunity to cross-examine them and the court will be able to observe their demeanor. Kosrae v. Tilfas, 22 FSM R. 72, 76 (Kos. S. Ct. Tr. 2018).
Considering our people's migration realities, there are important public policies to uphold as the FSM's and Kosrae's geographical configuration make the ability to use video conferencing an advantage for the process by significantly reducing costs for plane tickets to and from Kosrae, by helping to reduce delay, and by allowing testimony of witnesses who otherwise would not be able to appear at all. Kosrae v. Tilfas, 22 FSM R. 72, 76 (Kos. S. Ct. Tr. 2018).
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DENNIS K. YAMASE, Specially Appointed Justice:
NOW pending before the Court is Plaintiff State of Kosrae's ("Kosrae State") request for witness testimony through video chat/conference at trial. Pursuant to Court Order dated March 22, 2018, Plaintiff Kosrae State filed its brief on the use of video conference for witness testimony on May 21, 2018 for which Defendant Sepe Tilfas ("Tilfas") filed her Opposition thereto on June 1, 2018.
According to Plaintiff Kosrae State, the alleged victims are living in Kona, Hawaii and are unable to travel to Kosrae to testify at trial. Plaintiff Kosrae State represented that Ms. Donna Penrose is unable to travel to Kosrae because she is the primary care-giver for her ill husband and Ms. Diana Aliksa has been bed-ridden for some time now. Consequently, Plaintiff Kosrae State is requesting that the Court permit the alleged victims to testify through video conference at trial.
In support of its motion, Plaintiff Kosrae State cited to various U.S. caselaw arguing (1) that the Court has the authority and discretion in a variety of selected circumstances and when there is a public policy to allow oral testimony via video conferencing/chat in a criminal matter; (2) that the Court has personal jurisdiction over the witnesses even though they are not physically within the Federated States of Micronesia because they are Kosraean and are the alleged victims in this matter, and public policy and the totality of their respective circumstances makes their absence unavoidable; (3) that in the current situation, it is likely that the court reporter/secretary in Kosrae will swear-in the witnesses through video chat before they testify at trial; and (4) that the Defendant's right to confront her accusers will not violated through the use of video chat testimony because the defendant can cross-examine the witnesses, and the trier of fact can observe the witnesses' demeanor during their remote testimony via video chat.
In opposition, Defendant Tilfas urged the Court to deny Plaintiff Kosrae State's request for lack of proper legal authority to support their motion. Defendant Tilfas further argued: (1) that the Court
does not have the authority to permit witness testimony through video chat because it goes against the intent of Rule 26 of the Kosrae Rules of Criminal Procedure and does not align with the realities of Kosrae; (2) that the Court does not have personal jurisdiction over the alleged victims to testify through video chat because they currently reside outside of Kosrae State; (3) that the bailiff or officer of the court usually swear-in the witnesses but there are no rules allowing for the bailiff or officer of the court to swear-in the witnesses over the internet; and (4) that it would be prejudicial to the Defendant if the accusers or witnesses do not appear to testify under oath in open court. Defendant Tilfas also represented that there may be issues of competency pertaining to Ms. Diana Aliksa due to her health issues that prevents her from traveling to Kosrae.
Article II of the Kosrae Constitution provides for the constitutional rights of the people of Kosrae of which also guarantees the right to be confronted by accusers. Rule 26 of the Kosrae Rules of Criminal Procedure provides, in pertinent part: "In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise provided by an Act of the Kosrae State Legislature or by any rule adopted by this Court." Kos. Crim. R. 26.
This issue is one of first impression for Kosrae State. However, in 2015, the FSM Supreme Court was presented with a similar case of first impression bearing essentially the same issues. Noteworthy, the U.S. precedents cited by the parties to support their arguments were considered in the decision reached by the FSM Supreme Court. Consequently, this Court looks to FSM v. Halbert, 20 FSM R. 42 (Pon. 2015) for guidance.
a. Court's Discretion in Permitting Video Chat Testimony
The Kosrae State rules of criminal procedure provide no guidelines for this Court to follow. The FSM Rules of Criminal Procedure are also silent regarding whether video testimony is admissible in a criminal trial, and there is no national legislation on this issue. It is, therefore, left to the Court's sound discretion to determine whether to allow remote video testimony since FSM Criminal Rule 26 does not seem to preclude the admissibility of video testimony because remote video testimony will be taken orally in open court as required by the rules. FSM v. Halbert, 20 FSM R. 42, 45 & n.1 (Pon. 2015); See also People v. Wrotten, 923 N.E.2d 1099, 1101-02 (N.Y. 2009).
"In applying its discretion to the circumstances of this case the Court is mindful that live [video] testimony is certainly not the equivalent of in-person testimony, and the decision to excuse a witness's presence in the courtroom should be weighed carefully." Halbert, 20 FSM R. 42, 45-46 (Pon. 2015) (other citations omitted). "However, the Court is also guided by FSM Criminal Rule 2 which requires that the Rules be construed to provide 'fairness in administration and the elimination of unjustified expense and delay' in criminal proceedings." Halbert, 20 FSM R. at 46. Thus, to support the policy expressed in FSM Criminal Rule 2, allowing video testimony in exceptional circumstances is essential. Id.
Here, the Kosrae criminal procedure rules are silent with regards to this issue, and there is no state legislation on it. Thus, it is left to the Court to decide whether it will exercise its discretion in allowing remote testimony via video chat. On that note, the Court is persuaded that remote testimony via video chat meets the requirement of Kosrae Criminal Rule 26 because the alleged victims' testimonies will given orally and in open court. Moreover, the exceptional circumstances found in this case support the Court's decision to allow remote testimony via video chat because it is essential that the alleged victims be given the opportunity to testify on their own behalf and that the Defendant Tilfas is able to confront her accusers. Although the Court acknowledges that remote testimony via video
chat is most certainly not equivalent to in-person testimony, the testimonies of the alleged victims would seem to be crucial to the determination of the issues in this matter. Therefore, the Court will exercise its discretion in ensuring a fair and just criminal trial by allowing the alleged victims to testify via video chat at trial.
b. Confrontation Clause
"The confrontation clause requires the defendant to cross examine the adverse witness face-to-face, thereby permitting the finder of fact to evaluate the witness' credibility." Halbert, 20 FSM R. at 46; see Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990). "However, the right to confrontation is not an absolute right." Halbert, 20 FSM R. at 46. Courts have indicated "that confrontation rights may be satisfied without a physical, face-to-face confrontation at trial in limited circumstances when there is an individualized determination that the denial of a face-to-face confrontation is necessary to further an important public policy, and in circumstances when the reliability of the testimony is otherwise assured." Id. at 47.
"Testimony may be admissible so long as it contains the essential indicia of reliability, including (1) the giving of testimony under oath; (2) the opportunity for cross examination; (3) the ability of the fact-finder to observe demeanor evidence; and (4) the reduced risk that a witness will wrongfully implicate an innocent defendant when testifying in his presence." Halbert, 20 FSM R. at 46. Remote video testimony is safeguarded by "the traditional indicia of reliability"; therefore, the Court must decide whether, under the circumstances of this case, allowing the witnesses to testify via video chat is necessary to further an important public policy." Id. at 47. It has been held that public policy supports justly resolving criminal cases while allocating resources efficiently within the criminal justice system. Id., See also Harrell v. State, 689 So. 2d 400, 404 (Fla. Dist. Ct. App. 1997).
The Court recognizes the constitutional right of a defendant to confront his accuser. However, the Court notes that this right is not absolute, and the constitutional rights of a defendant can be met even without a face-to-face confrontation when it is necessary to further an important public policy and it is assured that the testimony is reliable. In the case here, the alleged victims will testify by appearing visibly to the Court and to the Defendant Tilfas with her counsel on a screen. Through video chat, the witnesses will deliver their testimonies orally, under oath, and in open court. The Defendant Tilfas will have an opportunity to cross-examine the witnesses and the Court will be able to observe the witnesses' demeanor.
Furthermore, Defendant Tilfas is charged with Count One: Forgery and Count Two: Cheating whereby it was alleged that she signed or forged the signatures of the alleged victims, without their consent or knowledge, on a document to transfer ownership of land. The alleged victims in this case reside in the State of Hawaii. In consideration of the migration realities of our people, there are important public policies to uphold in this matter. The geographical configuration of the FSM, and indeed Kosrae, would make the ability to use video conferencing in this matter, in circumstances similar to those found in this case, an advantage for the process. It would significantly reduce costs for plane tickets to and from Kosrae, it would help reduce delay, and it would allow testimony of witnesses who otherwise would not be able to appear at all.
NOW, THEREFORE, IT IS HEREBY ORDERED that the Plaintiff Kosrae State's Motion is GRANTED. IT IS FURTHER ORDERED that the Defendant Sepe S. Tilfas appear on Thursday, October 25, 2018 at 9:30 a.m. at the Kosrae State Court in Tofol, Kosrae to enter her plea and that, if a not guilty plea is entered, trial will follow immediately thereafter. Counsel for Plaintiff Kosrae State is directed to coordinate with its
witnesses in order that they may stand ready to initiate their remote testimony via video chat to the Kosrae State Court on Thursday, October 25, 2018 at 9:30 a.m., Kosrae local time in the event of trial.
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