For drunk driving defense lawyers in Massachusetts, the area of law that is most in flux and subject to changing court decisions is the Sixth Amendment Right of Confrontation. A recent case from Indiana addressed the meaning of a defense lawyer’s prior opportunity for cross examination that is required if testimony is presented at trial without the live testimony of a witness.

In a felony murder case, the Indiana Court of Appeals ruled that a defendant’s Sixth Amendment right was not violated when a trial judge allowed transcripts of witness testimony into evidence without the presence of the witnesses in court. A petition for writ of certiorari was filed in the United States Supreme Court and recently denied.

In the matter of Berkman v. Indiana, the appellate court affirmed the trial judge’s decision to allow the transcripts in lieu of the witnesses’ live testimony because the defendant had an opportunity to question the witnesses during earlier proceedings. Unfortunately, the Supreme Court recently denied the defendant’s application for review of the decision.

Berkman was accused of murdering a drug dealer during a scheduled drug exchange in a supermarket parking lot. After the murder, Mr. Berkman allegedly brought the victim’s body in the victim’s car to a girlfriend, who later watched Berkman ignite the victim’s car on fire. Berkman was charged with murder and felony murder. The jury acquitted Berkman as to the murder charge, but was unable to reach a verdict on the felony murder charge.

The felony murder charge was subsequently retried and heard by a new jury. During the second trial, the prosecutor called Berkman’s girl friend to testify as she did in the first trial about the circumstances of the murder. After the prosecutor began the direct examination, the witness said that she was having “issues” and the trial court ordered a recess.

During the recess, the witness told the judge that she had health conditions causing her to feel noxious, and that she was just released from a hospital after several days of treatment. The trial judge excused the witness, and permitted the prosecutor to read the witness’ former testimony from the first trial to the jury.
The prosecutor then requested permission to admit into evidence a transcript of a deposition of yet another witness implicating Berkman in the murder. The trial judge also allowed a transcript of a deposition of a second witness accusing Berkman of the crime, although this second witness was not present in court. Berkman was convicted and sentenced to 60 years for felony murder.

Berkman raised several arguments on appeal, including asking the appellate court to reverse the trial judge’s decisions to allow the transcripts into evidence. In the case of both witnesses, the appeals court ruled that, under the Supreme Court case of Crawford v. Washington [541 U.S. 36 (2004), Berkman’s right of confrontation was not violated.

The decision of the Indiana Court should have been reversed. Not only are the objectives of cross examination different depending on the court proceeding, but by permitting the testimony to be read into the record it deprives the jury of the ability to see the demeanor of the witness, the level of certainty, confidence, whether there are any hesitations, body language that indicates that the witness is not quite sure or that may leave a jury unsure whether to accept the testimony.