The case of Berkman v. Indiana raised an interesting issue under the Sixth Amendment regarding the meaning of a prior opportunity for cross examination. As a Massachusetts OUI Lawyer, Sixth Amendment case law will continue to shape how drunk driving and other criminal charges are defended in Massachusetts.

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. The Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees a defendant the right to face his accusers. In the matter of Berkman v. Indiana [976 N.E. 2d 68 (Ind. App. 2012), the appellate court affirmed the trial judge’s decision to allow the transcripts in lieu of the witnesses’ live testimony, holding that the defendant had an opportunity to question the witnesses during earlier proceedings.

Berkman was accused of murdering a drug dealer during a scheduled drug exchange in a supermarket parking lot. After the murder, 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 Mr. 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.

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), Mr. Berkman’s right of confrontation was not violated.

The appeals court in Berkman affirmed the trial judge’s decision finding Berkman’s girlfriend too ill to testify, correctly declaring her to be unavailable. The judge also correctly allowed the transcript of the initial trial since Mr. Berkman had an opportunity to cross-examine the witness then. With regard to the second witness, the appeals court also affirmed the trial judge’s finding that the witness was unavailable since the witness was believed to be on the run from several arrest warrants on his own criminal charges. And since Berkman’s counsel did thoroughly question this latter witness during an earlier deposition, there is no violation of Berkman’s right to confront his accuser.

The Court should not have allowed the testimony as depriving a defendant a right of face to face confrontation with an accuser deprives the jury of not only hearing the witnesses testimony, but seeing how a witness communicates, the body language, degree of certainty, demeanor and tone that reading a transcript cannot convey. These factors were recognized by the Founders when the Sixth Amendment was included in the Bill of Rights and are essential to the right to a fair trial.