Confronting an accuser — and COVID

Like many other jurisdictions, Minnesota courts have had to weigh concerns related to the COVID-19 pandemic against defendants’ constitutional rights.

The latest clash occurred in State of Minnesota v. Anthony James Trifiletti, in which the  Minnesota Court of Appeals ruled Sept. 12 that the defendant’s constitutional right of confrontation trumped the district court’s reasonable concern for the health and well-being of the people present in the courtroom.

Trifiletti got into an altercation with a driver while traveling on Interstate 94. After leaving the interstate, the situation escalated, resulting in Trifiletti shooting and killing the man. Trifiletti was charged with second-degree international murder and second-degree felony murder.

At trial, Trifiletti argued that the man had reached into his waistband and, because he assumed he was grabbing a gun, shot at him in self-defense. However, the state’s only other eyewitness contradicted Trifiletti’s account, arguing that Trifiletti ran to his car, grabbed a gun, and then ran back to shoot the other driver, who had been walking away at the time.

As the jury was unable to reach a unanimous verdict, the district court declared a mistrial.

There was a second trial a month later in April 2021. On the first day of trial evidence, the court learned that the eyewitness may have been exposed to COVID-19. She had experienced some symptoms of illness but was getting better. However, her doctor had advised her against getting a COVID-19 test. The next day, the district court judge announced that it had consulted with a Ramsey County public health official, who said it would be fine if the eyewitness testified if masked and remained at an appropriate distance.

However, the state argued that she was unavailable and instead sought to either read her testimony from the first trial or allow her to testify remotely using video technology.

Trifiletti objected, claiming his constitutional right to confront his witness in person was being violated. He also claimed that the court only received self-reported, secondhand information about the witness’s health and availability.

Nevertheless, the court determined that she was unavailable to testify. It did not conduct a remote voir dire to inquire about the potential exposure to arrive at this conclusion. The court simply decided that the reported exposure to someone COVID-positive presented a clear public health risk.

Trifiletti was presented two choices: Have the prior trial testimony read or use video technology to examine the witness. He rejected both. Trifiletti’s counsel proposed a continuance or mistrial. When those were rejected, defense counsel opted for the prior testimony to be read into the record. Trifiletti was found guilty of second-degree murder while committing a felony and was sentenced to 150 months in prison.

Anders Erickson, assistant public defender, argued that case law implied that any exceptions to the Confrontation Clause must have existed at the time the Sixth Amendment was enacted. Erickson received pushback from the panel, asking him whether at the time the Sixth Amendment was enacted, an event such as a global pandemic could have been anticipated.

“There is no doubt that the global pandemic had an effect on the judicial system…but there is no authority for the idea that constitutional rights were somehow cast aside just because of the pandemic, especially when, at this point of the pandemic, we were having trials and district courts were doing their best to make sure that courtrooms were safe. But in the Supreme Court chief justice’s orders, there was nothing about abandoning constitutional rights,” Erickson insisted.

The court ultimately disagreed on how to resolve the issue, and a great deal of the disagreement centered on its 2022 decision of State v. Tate. In that case, the Minnesota Court of Appeals found that the appellant’s confrontation clause rights were not violated when the district court allowed a police officer, quarantined due to known exposure to COVID-19, to testify via remote video technology.

The state—and dissent—found the Tate decision to be binding. The dissent, written by Judge Carol Hooten, argued that not giving district courts discretion to render a witness unavailable due to COVID-19 was untenable.

“[T]he coronavirus pandemic continues to smolder and would unnecessarily bind district courts in future public health crises involving infectious diseases,” the dissent said. “The nature and extent of [eyewitness’s] exposure, the severity of her symptoms, the COVID-19 positivity rate, and the level of risk posed to those in the courtroom are all issues best reserved to the district court’s sound discretion.”

Thomas Ragatz, assistant Ramsey County attorney, argued that the district court did not err in finding the witness unavailable.

“If we are talking about whether she is factually unavailable, there is no limit to unavailability to only being dead,” Ragatz said at oral arguments. “This court would have to say that medical reasons do not equal unavailability. Because, really, what’s the difference between a virus you could give to someone else and being in a coma?”

However, the majority opinion, written by Judge Randall J. Slieter, did not find Tate informative. It claimed that the question to resolve was whether the state proved that the eyewitness’s possible COVID-19 exposure—and fully dissipated cough symptoms—rendered her unavailable to testify? Tate, it claimed, was based on a different legal framework than the present one, where a witness’ tape-recorded testimony was played to the jury.

Under the U.S. Supreme Court case of Crawford v. Washington (2004), testimonial statements of a witness can be admitted if the witness is unavailable and if the defendant had an opportunity to cross-examine her. The court determined that she was not unavailable, noting that she was “willing to testify, she was physically and mentally able to testify, she was within the jurisdiction, and she remained in contact with the prosecutor.”

It concluded that the case law had no public-health basis for admission of an unconfronted testimonial statement. Additionally, it found that, even if case law supported the unavailability of a witness due to a potential public-health risk, the state failed to show that she would be a public health risk if she did testify in person.

As a result, the court found that Trifiletti’s constitutional right to confrontation was violated and that the error was not harmless. The court reversed and remanded the case. Trifiletti will get a new trial.

RELATED: Court: Video testimony doesn’t violate Confrontation Clause