Court: Video testimony doesn’t violate Confrontation Clause

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The Minnesota Court of Appeals has found that a defendant’s Confrontation Clause rights were not violated when a district court allowed a law enforcement agent who had been exposed to COVID-19 to testify using two-way, live, remote video technology.

The decision, issued Jan. 3, stems from events in March 2018, when Kim Marie Tate sold methamphetamine to a confidential informant. This was part of a controlled buy being conducted by agents with the West Central Drug and Violent Crimes Task Force. The task force included a special agent of the task force, a sheriff’s deputy, and a police officer. A confidential informant did the actual buy.

Task force agents conducted surveillance during the controlled buy, listening to the audio device’s live feed while it was recording. After the buy was completed—which was captured in its entirety on audio—analysts with the Minnesota Bureau of Criminal Apprehension determined  that Tate had sold 1.265 grams of methamphetamine.

Tate was charged with violating Minn. Stat. § 152.03, subd. 1(1) (2016), third-degree sale of a controlled substance. The case was scheduled for trial on Nov. 16-17, 2020.

One of the key witnesses was the special agent. But just four days before the start of trial, the special agent was exposed to an individual who had tested positive for COVID-19. Given this known exposure, the agent was instructed by public health officials to quarantine. The state asked that the special agent be allowed to provide testimony remotely through Zoom, as the testimony was fundamental to the state’s case. Objecting to their request on the grounds that remote testimony violated her rights under the Confrontation Clause, Tate requested a trial continuance.

At a hearing, the district court reasoned that the Confrontation Clause reflects a preference for in-person testimony, but held that “it’s not an absolute right.” Citing the pandemic and the importance of not exposing attorneys, court staff, or jurors to COVID, the court found that exceptional circumstances justified remote testimony.

The court did impose requirements on the testimony:

“But I do want the largest possible screen available so jurors can view and actually see the witness while he is testifying, and if it takes longer to fully complete any cross-examination because of Zoom, we’ll take as much time as necessary to make sure that the defendant’s rights for cross-examination are vindicated.”

The court requested a 65- or 70-inch screen be used with the remote testimony so that jurors could best establish credibility.

At trial, the judge also instructed the jury:

“Our first witness today will be appearing on the video screen remotely. This is a result of the pandemic. But you are to judge the credibility just as a live witness with the factors that I had given you, and any other factors you believe bear on the credibility and weight; that is to be considered live testimony, to be judged as you have been judging the credibility of any other witness that appears live.”

During final jury instructions, the judge also instructed the jury:

“Throughout the trial, you have seen a number of safety precautions implemented in an effort to minimize the potential spread of COVID-19. Many of these steps may have made this process less comfortable or less convenient. However, you should not draw any inference from these procedures against the state or the defendant.”

Tate was convicted and appealed. The court’s first order of business was determining whether a 1990 case concerning remote testimony in a child-abuse case, Maryland v. Craig, was binding authority. It held that, since the United States Supreme Court did not overrule Craig, and finding that Crawford v. Washington did not overrule Craig, that it must apply the Craig approach.

Applying Craig, the court found that the necessity and reliability prongs were satisfied. Citing emergency orders both from Gov. Tim Walz and Chief Justice Lorie Gildea, the court found that the exceptional circumstances present from the pandemic gave rise to the realities of the case. The appellate court, however, disagreed with the district court in one important sense. Judge Lucinda Jesson wrote: “But we disagree with the district court’s reasoning that the COVID-19 pandemic, standing alone, satisfies the necessity requirement.” The Court of Appeals, however, found that the state did make a particularized showing of necessity, by showing that the particular witness was susceptible to the virus and could not testify without imperiling the health of other discrete individuals present in the courtroom.

Tate argued that a continuance would have only been two weeks, citing the 14-day quarantine period imposed by public health officials. The court disagreed: “If [the special agent] became infected, it was unknown how long his sickness would last, and it could have far exceeded 14 days. We are further mindful that in November 2020, the virus-infection rates were high.” Because there was “no definite end date of the pandemic,” the court found denial of the continuance appropriate.

Additionally, the court found that the testimony was reliable. “Nothing in the transcript suggests that the court ran into technical problems during either examination. Nothing in the transcript demonstrates that anyone in the courtroom had difficulty seeing or hearing the witness, or observing his demeanor,” the court wrote.

Tate is not the first Minnesotan to allege that her constitutional rights were violated as a result of the pandemic. In November 2021, a Minnesota appeals court held that delay of trial because of COVID did not violate the speedy trial rule.

Additionally, defendants from across the country have raised confrontation clause issues on appeal. On Jan. 11, 2022, the Missouri Supreme Court reversed the statutory rape conviction of Rodney Smith, concluding that video testimony from an investigator violated the defendant’s Sixth Amendment right to confront the witness. In that case, the investigator was appearing remotely due to being on paternity leave, and the court found that this did not render the witness “unavailable.” However, it did not rule on whether “the combination of oath, cross-examination, and observation of demeanor, when utilized in a two-way video setting in which the witness is in a remote location with minimal or no safeguards, is ever enough to ensure the reliability of any witness.”