Lipsitz (Ryan) vs. State (Nev. Supreme Ct. – June 6, 2019)
Lipsitz was convicted of seven sexually related counts, including sexual assault and attempted sexual assault. He argued that the district court erred when it allowed the victim to testify by two-way audiovisual transmission, which violated his rights under the Confrontation Clause of the Sixth Amendment.
Lipsitz trespassed into a residential treatment facility, where he sexually assaulted the victim, an 18-year-old patient seeking treatment for substance abuse and trauma related to her experience as a victim of sex trafficking. On the morning in question, the victim fell asleep while reading in the recreation room around 4 a.m. Approximately one hour later, the victim awoke to find Lipsitz, whom she had never seen before, standing at the end of the couch. Lipsitz exposed himself and forced the victim to have sex with him. Lipsitz then attempted to force the victim to perform fellatio on him. When he failed, he became upset, mumbled something under his breath, and walked away. Another patient and several staff members at the treatment center saw Lipsitz exiting the treatment center through the front gate. He was nearby the center when police officers found him.
Lipsitz was indicted and subsequently invoked his right to a speedy trial. The State moved to allow the victim to testify via simultaneous audiovisual transmission because she was unavailable as a witness for trial. Lipsitz opposed this motion, arguing that it was essential for the victim to be physically present at trial as the case “rises and falls on the victim’s credibility.”
The district court granted the State’s motion, reasoning that the victim was unavailable as a witness for trial because she was a patient at an out-of-state treatment center. Moreover, the district court noted that Lipsitz invoked his right to a speedy trial, and he refused to agree to a continuance of the trial for her to be released from the facility. Therefore, the only way she could testify on the dates set for trial was by alternative means: deposition or audiovisual transmission.
After the six-day trial, the jury returned a guilty verdict on all counts except for one count of sexual assault. The district court sentenced Lipsitz to an aggregate sentence of 20 years to life.
On appeal, Lipsitz argued, among other issues, that the district court erred in allowing the victim to testify via simultaneous audiovisual transmission from the Florida treatment center where she was a patient, depriving Lipsitz of his Sixth Amendment right under the Confrontation Clause.
The Supreme Court of Nevada explained that Sixth Amendment’s Confrontation Clause provides criminal defendants the right to confront the witnesses against them and to cross-examine such witnesses who bear testimony against them. Crawford v. Washington, 541 U.S. 36, 51 (2004). The elements that comprise the right of confrontation, i.e., physical presence, oath, cross-examination, and observation of demeanor by the trier of fact, ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. Maryland v. Craig, 497 U.S. 836, 845-46 (1990). However, the right to a witness’s physical presence at trial is not absolute. As the United States Supreme Court explained in Craig, the Confrontation Clause reflects a preference for face-to-face confrontation at trial, but that preference must occasionally give way to considerations of public policy and the necessities of the case. The U.S. Supreme Court held that a defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured. At issue in Craig was a state statute that allowed child witnesses to testify via a one-way closed-circuit television in child abuse cases. The U.S. Supreme Court concluded that the use of the one-way closed-circuit television procedure did not violate the defendant’s right to confrontation because (1) it was necessary to further the State’s interest in protecting the child victim from emotional trauma that the child would suffer by having to testify in the defendant’s presence, and (2) the procedure adequately preserved the other elements of confrontation, thereby providing indicia of reliability. The U.S. Supreme Court emphasized that the procedure could be used only after the trial court hears evidence and makes a case-specific finding that the procedure is necessary to further an important state interest.
The Supreme Court of Nevada noted that Craig involved one-way video transmission and did not answer whether the same standard would apply to two-way video transmission, whereby the defendant and the victim can see and hear each other simultaneously. See Wrotten v. New York, 560 U.S. 959, 959 (2010) (explaining that whether the use of two-way video transmission violated a defendant’s rights was an important question that was “not obviously answered by Maryland v. Craig”). Nonetheless, many other jurisdictions that have addressed this issue have allowed the use of two-way transmission only where the Craig standard is met. See, e.g., United States v. Carter, 907 F.3d 1199, 1206 (9th Cir. 2018); United States v. Yates, 438 F.3d 1307, 1313-17 (11th Cir. 2006); United States v. Bordeaux, 400 F.3d 548, 554-55 (8th Cir. 2005); State v. Rogerson, 855 N.W.2d 495, 504-06 (Iowa 2014); White v. State, 116 A.3d 520, 544 (Md. Ct. Spec. App. 2015). The Court agreed that the requirements articulated in Craig apply to two-way audiovisual transmission.
Applying the Craig test to the two-way technology used here, the Court concluded that the district court did not abuse its discretion in allowing the victim to testify by audiovisual transmission. The Court explained that the district court made the requisite finding of necessity. There was no dispute that the victim in this case was a patient at a residential drug treatment facility in Florida, and the victim’s doctor opined that she would not be available for a number of months. Admission into a treatment center for a prolonged period is a legitimate basis for the district court to find that a witness is medically unavailable to appear at trial. Cf. Horn v. Quarterman, 508 F.3d 306, 317-18 (5th Cir. 2007) (allowing two-way video testimony of a witness too ill to travel); United States v. Gigante, 166 F.3d 75, 81-82 (2d Cir. 1999) (same); People v. Wrotten, 923 N.E.2d 1099, 1101, 1103 (N.Y. 2009) (same) Additionally, Lipsitz’s insistence on a speedy trial and his refusal to continue the trial until the victim was released from the treatment facility contributed to the district court’s decision to grant the State’s motion to allow the victim to testify remotely at trial. The district court explained that because Lipsitz had invoked his right to go to trial next week, then it seemed that the victim was essentially unavailable, which would allow for either a deposition to be taken of the witness or use in this case of the audiovisual technology. Thus, absent this form of technology, the victim could not have appeared for the trial scheduled the following week. As a result, the Court concluded that use of the technology under these circumstances furthered the important public policy of protecting the victim’s well-being while also protecting the defendant’s right to a speedy trial while ensuring that criminal cases are resolved promptly.
The Court further explained that the use of two-way audiovisual transmission, as set forth in Nevada Supreme Court Rules Part IX-A(B), provides indicia of reliability by satisfying the elements of confrontation enunciated in Craig. It allows the witness to swear under oath, the defendant can cross-examine the witness, and the court and jury have the ability to observe the witness’s demeanor and judge her credibility. The Court noted that the victim-witness in this case complied with these elements. She swore to tell the truth, the defense cross-examined her, and the judge and jury had an opportunity to observe her demeanor and judge her credibility. The district court noted for the record that the video worked better than in-court testimony because the jury was better able to observe her demeanor, she answered all the questions, the audio was clear, both parties had a chance to question her, and there was nothing to preclude the defendant from testing her credibility. Thus, the Court determined that the technology sufficiently provided Lipsitz an opportunity to confront the victim.
Accordingly, the Court concluded that the district court did not abuse its discretion in allowing the victim to testify by two-way audiovisual transmission. The technology allowed Lipsitz to confront the victim when she would have otherwise been unavailable, public policy supports the use of this technology to protect a victim’s well-being while also ensuring that a defendant has a speedy trial, and the procedure for this modern technology satisfied the elements of confrontation.