By Benjamin Morrell

Law360 (October 5, 2020, 1:55 PM EDT )

Benjamin Morrell

As many businesses find themselves increasingly targeted and cited for safety violations by the Occupational Safety and Health Administration and its state counterparts, these agencies have recently begun pushing for virtual hearings and trials in order to keep up with their heavy dockets and limit the spread of COVID-19.

But some employers may object to participating in a trial conducted by videoconference for a variety of reasons, including the inability to effectively cross-examine investigative witnesses and the difficulty in presenting to the judge physical evidence that may be at issue, especially complex machinery and equipment.

In order to challenge these virtual settings, defense counsel may need to get creative. This article presents a constitutionally based option for effectively objecting to remote proceedings where workplace conduct gives rise to criminal charges.

Critical Background

In addition to its more widely known civil enforcement mechanisms, the Occupational Safety and Health Act includes criminal prohibitions. Section 17 of the act establishes criminal penalties for (1) willful violations of any standard resulting in an employee's death; (2) giving advance notice of an OSHA inspection; and (3) making false statements to OSHA.[1]

In addition to a hefty fine, a conviction under one of these provisions can lead to as many as six months in prison — and if a defendant is convicted of a willful violation resulting in death a second or subsequent time, they may be imprisoned for up to a year.

Many states' occupational safety and health statutes contain similar criminal provisions. For example, North Carolina closely tracks the federal act but increases the maximum fine for a willful violation resulting in death if the deceased employee was under 18.[2] Because every state is different, it is critical to check the law in your local jurisdiction.

Generally applicable criminal laws may also come into play for certain workplace safety violations, like negligent homicide or manslaughter for deaths in the workplace. Moreover, the U.S. Supreme Court confirmed last year in Gamble v. U.S. that a person can be prosecuted under state law and federal law in separate cases for the same conduct without violating the Fifth Amendment's double jeopardy clause.[3] As a result, prosecution under the federal OSH Act does not preclude subsequent prosecution under a state's similar laws.

Avenue for Objections: Confrontation Clause

While no employer welcomes criminal charges resulting from workplace conduct, such charges bring a unique opportunity for lodging an objection. That's because they trigger several constitutional protections, including the Sixth Amendment's confrontation clause, which provides the strongest basis for objecting to a virtual or remote trial.

According to the Supreme Court's 1988 decision in Coy v. Iowa, "the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact."[4] In Maryland v. Craig in 1990, the Supreme Court emphasized that physical presence is one of the core aspects of confrontation; it "ensur[es] that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings."[5]

Courts have consistently thrown out convictions where defendants were deprived of their face-to-face confrontation rights. This has often taken place in the form of prosecution witnesses testifying remotely.

For example, in U.S. v. Yates in 2006, the en banc U.S. Court of Appeals for the Eleventh Circuit vacated a defendant's conviction after the government called two witnesses who lived in Australia and had them testify via live, two-way video conferencing.[6] In doing so, the court declared that the "Sixth Amendment's guarantee of the right to confront one's accuser is most certainly compromised when the confrontation occurs through an electronic medium."[7]

This right is not unlimited, however. Courts may excuse a witness from testifying in person if two conditions are satisfied. First, the witness's absence must be necessary to advance an important public policy. Second, the reliability of the remote testimony must be otherwise assured.

In Craig, the Supreme Court held that "a State's interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court."[8] The court indicated that this requirement is not easily met, and the lower courts have reliably rejected prosecutors' requests to have witnesses testify remotely based solely on the expense and inconvenience of traveling to the court.

Last year, the U.S. District Court for the Eastern District of North Carolina held in U.S. v. Rivera that "the inconvenience to the witness of traveling to Raleigh from Hawaii a second time" did not "rise to the level of an important public policy" under the Craig test.[9]

Applying Constitutional Standards in a Coronavirus World

Courts across the country are currently grappling with the application of Craig to the COVID-19 pandemic. The key question: whether the government's interest in limiting the spread of the coronavirus qualifies as an important public policy to justify witnesses testifying remotely in criminal trials.

In New York City, the U.S. District Court for the Southern District of New York recently held in U.S. v. Donziger that under "the Craig standard, there is no question that limiting the spread of COVID-19 and protecting at-risk individuals from exposure to the virus are critically important public policies."[10] There, the witness in question was in his 70s and suffered from a medical condition that increased the "risk of dangerous complications should he contract COVID-19."

The court allowed him to testify "via live video rather than in person, which would require boarding a plane and spending at least two weeks in New York City." The court then approved the government's proposed procedure of having the witness testify "under oath from a federal court in Texas in the presence of court personnel using a two-way video system," allowing the court, the defendant and his attorney to interact with him in real time.

But in U.S. v. Crittenden, the U.S. District Court for the Middle District of Georgia recently went a different route — setting an in-person jury trial and requiring "all persons entering the courtroom, including parties, lawyers, witnesses, jurors, and spectators ... to wear masks that cover their nose and mouth."[11]

While the government expressed concern that this lesser requirement may violate the confrontation clause — by preventing some aspect of face-to-face confrontation — the court found it "necessary to further an important public policy: ensuring the safety of everyone in the courtroom in the midst of a unique global pandemic."

Conclusion

These two cases highlight the differences in available approaches and the factors upon which they are based. For one thing, New York City has been a notable hot spot for COVID-19 infections, while the more rural Columbus, Georgia, has seen a relatively low number of cases.

For another, the witness in question in the New York case was elderly and had a preexisting health condition — both risk factors for an increased severity of COVID-19 symptoms — while the court in the Georgia case made no mention of any witnesses that were acutely at risk.

Once a court determines that limiting the spread of the coronavirus qualifies as an important public policy under the Craig test, it will then consider whether a particular witness's absence is necessary to further that interest. As case law on this issue develops, courts will likely consider at this step the infection rate in its locale and the profile of the particular witness whose remote testimony the government seeks.

Returning to the OSHA context, it is important to note that the confrontation clause applies only in criminal prosecutions. Courts have consistently "rejected the argument that OSHA civil penalty assessment proceedings violate Sixth Amendment protections."[12]

Thus, if a business finds itself subject to a civil enforcement action, it cannot rely on the confrontation clause to object to a remote trial. The good news, however, is that employers do not face the risk of going to prison if their civil case goes poorly.

---

Benjamin S. Morrell is an associate at Fisher Phillips.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] 29 U.S.C. § 666 (e)–(g).

[2] N.C. Gen. Stat. §95-139(a)–(c) (2018).

[3] Gamble v. United States , 139 S. Ct. 1960 (2019).

[4] Coy v. Iowa , 487 U.S. 1012, 1016 (1988).

[5] Maryland v. Craig , 497 U.S. 836, 846 (1990).

[6] United States v. Yates , 438 F.3d 1307 (11th Cir. 2006) (en banc).

[7] Id. at 1315.

[8] Craig, 497 U.S. at 853.

[9] United States v. Rivera , 372 F. Supp. 3d 311, 316–17 (E.D.N.C. 2019).

[10] United States v. Donziger , No. 11-CV-691 (LAK), 2020 WL 5152162, at *2 (S.D.N.Y. Aug. 31, 2020).

[11] United States v. Crittenden , No. 4:20-CR-7 (CDL), 2020 WL 4917733, at *5 (M.D. Ga. Aug. 21, 2020).

[12] Savina Home Indus., Inc. v. Sec'y of Labor , 594 F.2d 1358, 1366 (10th Cir. 1979) (collecting cases).

For a reprint of this article, please contact reprints@law360.com.