State v. Tate
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The Supreme Court affirmed the opinion of the court of appeals affirming the decision of the district court to allow a witness to testify using live, two-way remote view technology during a jury trial in the midst of the COVID-19 pandemic, holding that Defendant's right to confrontation was not violated in the proceedings below.
During Defendant's jury trial on a third-degree sale of a controlled substance charge, the district court allowed one of the State's witness to testify via Zoom because she had been exposed to COVID-19 and was forced to quarantine. Defendant appealed. The Supreme Court affirmed, holding (1) the two-part test set forth in Maryland v. Craig, 497 U.S. 836 (1990), is the appropriate test to assess whether a Confrontation Clause violation under the federal or state constitutions; and (2) Defendant's right to confrontation under the federal and state constitutions when the district court permitted the witness to testify using remote view technology under the circumstances of this case.
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STATE OF MINNESOTA IN SUPREME COURT A21-0359 Court of Appeals Chutich, J. Dissenting, Thissen, J. State of Minnesota, Respondent, vs. Filed: February 8, 2023 Office of Appellate Courts Kim Marie Tate, Appellant. ________________________ Keith Ellison, Attorney General, Lydia Villalva Lijó, Assistant Attorney General, Saint Paul, Minnesota; and Brian W. McDonald, Becker County Attorney, Detroit Lakes, Minnesota, for respondent. Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant State Public Defender, Saint Paul, Minnesota, for appellant. ________________________ SYLLABUS 1. The two-part test set forth in Maryland v. Craig, 497 U.S. 836 (1990), applies to determine whether a defendant’s right to confrontation under the Sixth Amendment of the United States Constitution and Article I, Section 6, of the Minnesota Constitution has been violated when a witness testifies during trial by use of live, two-way, remote video technology. 1 2. The defendant’s right to confrontation under the federal and state constitutions was not violated when the district court permitted one witness to testify using live, two-way, remote video technology during a jury trial because the remote testimony was necessary under the circumstances then presented by the COVID-19 pandemic, and the testimony was sufficiently reliable. Affirmed. OPINION CHUTICH, Justice. The issue raised by this case is whether a criminal defendant’s right to confrontation under the Sixth Amendment of the United States Constitution and Article I, Section 6, of the Minnesota Constitution is violated when a district court allows a witness to testify using live, two-way, remote video technology during a jury trial in the midst of the COVID-19 pandemic. Appellant Kim Marie Tate was charged with the third-degree sale of a controlled substance. During her jury trial, the district court allowed one of the State’s five witnesses to testify via Zoom 1 after the witness was exposed to COVID-19 and forced to quarantine. After the jury found Tate guilty, she challenged her conviction on appeal, arguing that her constitutional right to confrontation was violated when the district court allowed the witness to testify via Zoom. In a precedential opinion, the court of appeals Zoom is a cloud-based technology platform used for live, two-way video conferencing. The Minnesota Judicial Branch used Zoom during the COVID-19 pandemic to conduct remote hearings and to facilitate remote testimony in certain matters. 1 2 affirmed the decision of the district court to allow the remote testimony. State v. Tate, 969 N.W.2d 378, 381 (Minn. App. 2022). We hold that Maryland v. Craig, 497 U.S. 836 (1990), sets forth the appropriate test to assess whether a Confrontation Clause violation under the federal or state constitutions has occurred. Applying that test to the circumstances presented here, we conclude that Tate’s right to confrontation was not violated when the district court allowed one of the State’s witnesses to testify via Zoom because the remote testimony was necessary under the circumstances then presented by the COVID-19 pandemic, and the testimony was sufficiently reliable. Accordingly, we affirm. FACTS In March 2018, three law enforcement agents from the West Central Minnesota Drug and Violent Crimes Task Force—one lead investigator and two additional task-force agents—worked with a confidential informant to conduct a controlled buy of methamphetamine from appellant Kim Marie Tate. The task-force agents and lead investigator provided the confidential informant with an audio recording device to track the buy. They then conducted surveillance during the controlled buy while listening to the audio device’s live feed. After the sale, the confidential informant met with the agents and lead investigator to turn over the 1.265 grams of methamphetamine purchased from Tate. Respondent State of Minnesota charged Tate with third-degree sale of a controlled substance in violation of Minnesota Statutes section 152.023, subdivision 1(1) (2022). After a series of delays—including four successful requests by Tate for a continuance of the trial—the trial was set for November 16–17, 2020. During this time, 3 the nation was dealing with a second wave of high COVID-19 infection rates, vaccines were not yet available, and Minnesota set a grim new record of daily deaths from the virus. 2 The state court system was then operating under a statewide order governing criminal jury trials, requiring district courts to comply with the Minnesota Judicial Branch’s COVID-19 Preparedness Plan. Operations of the Minnesota Judicial Branch Under Emergency Executive Order Nos. 20-53, 20-56, No. ADM20-8001, Order at 2 (Minn. filed May 15, 2020). Four days before trial, the lead investigator on the case was exposed to COVID-19 and advised by public health officials to quarantine. 3 The State asked the district court to allow the lead investigator to testify via Zoom because his testimony was “fundamental” to its case. The district court held a pretrial hearing to consider the State’s request. Tate objected to the remote testimony. She contended that it would prejudice her case because remote testimony lessens the ability of the jury to observe witness demeanor and the ability of the court to monitor whether a witness is using impermissible materials during the witness’s testimony. Tate asked the district court to continue the trial instead. Emerg. Exec. Order No. 20-97, Extending the COVID-19 Peacetime Emergency Declared in Executive Order 20-01 (Nov. 12, 2020). 2 At this point during the COVID-19 pandemic, the Centers for Disease Control and Prevention (CDC) recommended a 14-day quarantine for anyone exposed to a known case of COVID-19. David J. Sencer, CDC Museum COVID-19 Timeline, CDC.gov, https://www.cdc.gov/museum/timeline/covid19.html (last visited Nov. 2, 2022) [opinion attachment]. Vaccines were then still in the clinical trial phase and not available to the general public. Id. 3 4 The district court granted the State’s request to allow the lead investigator to testify via Zoom. The court emphasized its concern for “the safety of anyone who will be in the courtroom” during the jury trial and their potential for exposure to COVID-19. Acknowledging that the “confrontation clause does reflect a preference for in-person testimony,” the district court stated that in-person confrontation is “not an absolute right.” The court found that the use of Zoom for live video conferencing testimony was an acceptable alternative to testifying in person under certain, exceptional circumstances. The district court reasoned that the “pandemic, even of itself” would likely qualify as a valid reason for remote testimony to ensure that a trial would “not expos[e] any attorneys or court staff or jurors to unnecessary risk of the disease spread[ing].” The court noted that whether jury trials will continue to be held in Minnesota may be under review in the near future, “but for now there have been no changes, and trials are to continue.” The district court also stated the following: 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 the defendant’s rights for cross-examination are vindicated. Before trial began, the district court entertained further argument on Tate’s motion for a continuance and whether remote testimony was permissible under the Confrontation Clause. The district court reiterated its concern that “the pandemic puts us into a different area as far as safety of court personnel.” The court stated, “I am not suggesting that the criminal backlog is in any way a reason for not observing constitutional rights, but I do think that the constitutional rights are protected in this matter.” The district court cited the 5 risk of “exposure to court staff, jurors, lawyers, in bringing someone in that is known to have been in contact with someone, whether or not they do or don’t have symptoms.” In addition, the court noted that additional guidance may be issued from our court “on what type of trials are going to go forward, but as of today the rules haven’t changed.” On the first day of trial, two task-force agents testified in person. Each agent testified about the standard task-force procedure to conduct a controlled buy and stated that the controlled buy in Tate’s case followed protocol. Before the buy, the confidential informant and his car were searched, and the agents then provided the informant with pre-documented cash and an audio transmitting-and-recording device. The agents testified that through that device and its live feed, they were able to monitor the entire controlled buy. After the sales transaction was completed, the agents again met with the confidential informant, collected the methamphetamine purchased from Tate, and searched the informant and his car. An analyst from the Minnesota Bureau of Criminal Apprehension next testified in person. She confirmed that testing showed that the substance purchased from Tate was 1.265 grams of methamphetamine. The lead investigator testified via Zoom the next day. The district court broadcast the testimony to the jury using a 65-inch screen. Before the lead investigator testified, the district court gave the jury the following cautionary instruction: Our first witness today will be appearing on the video screen remotely. That 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 that is to be considered live 6 testimony, to be judged as you have been judging the credibility of any other witness that appears live. Under oath, the lead investigator confirmed that he was alone and would only reference court-approved materials during his testimony. His testimony was primarily foundational and reconfirmed what the agents had already explained: the controlled buy of methamphetamine from Tate followed the standard procedure. 4 The State’s last witness was the confidential informant, who testified in person. He was the only eyewitness who could confirm the actual physical sale of methamphetamine by Tate, and he corroborated the conversation transmitted and recorded by the audio device. Tate did not testify, but her counsel extensively cross-examined the confidential informant, suggesting that the informant brought the methamphetamine to the controlled buy to frame Tate and to save himself from a prison sentence. During final jury instructions, the district court gave a cautionary instruction regarding COVID-19: 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. The judicial branch enacted During cross-examination, defense counsel asked follow-up questions about the search protocol because the lead investigator was the one who actually searched the confidential informant before and after the controlled buy. Defense counsel also asked the lead investigator some questions about the analyst’s report. Specifically, defense counsel asked the lead investigator if he had requested a fingerprint analysis of the plastic bag containing the methamphetamine. The lead investigator had difficulty seeing the analyst’s report over Zoom and could not definitively answer this question. On redirect examination, however, he confirmed that he does not normally request fingerprint analysis for controlled-buy investigations. 4 7 these precautions, and it is my responsibility to implement them in this courtroom for everyone’s safety. The jury found Tate guilty. The district court imposed a stayed sentence of 21 months in prison and placed Tate on probation. On appeal, Tate challenged the district court’s decision to allow the lead investigator to testify via Zoom. In a precedential opinion, the court of appeals affirmed. State v. Tate, 969 N.W.2d 378, 381 (Minn. App. 2022). Applying the analysis set forth in Maryland v. Craig, 497 U.S. 836 (1990), the court concluded that Tate’s right to confrontation was not violated when the district court allowed the lead investigator to testify via Zoom. Tate, 969 N.W.2d at 386–91. We granted Tate’s petition for review and now affirm the well-reasoned decision of the court of appeals. ANALYSIS The Confrontation Clause of the Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. Similarly, Article I, Section 6, of the Minnesota Constitution provides in pertinent part that “[t]he accused shall enjoy the right . . . to be confronted with the witnesses against him.” 5 Minn. Const. art. I, § 6. Accordingly, the Confrontation Clause generally “guarantees the defendant a face-to-face meeting with The relevant language of the federal and state Confrontation Clauses is identical. Because Tate does not argue for a more expansive reading of the Minnesota Constitution than its federal counterpart, we apply the precedent of the United States Supreme Court to determine whether Tate’s right to confrontation was upheld here. 5 8 witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 1016 (1988). But the right to personally confront a witness is not absolute. Id. at 1020. We have never addressed a Confrontation Clause challenge under these unique circumstances—when one of the State’s five witnesses, in quarantine during a global pandemic, testified in a jury trial by live, two-way, remote video technology. To evaluate this challenge, we must first identify the appropriate Confrontation Clause analysis, and then apply that analysis to the circumstances presented here. We review Confrontation Clause challenges de novo. State v. Caulfield, 722 N.W.2d 304, 308 (Minn. 2006). I. The United States Supreme Court has not yet addressed how witness testimony via live, two-way, remote video technology affects a defendant’s constitutional right to confrontation under the Sixth Amendment. In Maryland v. Craig, 497 U.S. 836 (1990), however, the Supreme Court adopted a two-part test to evaluate a Confrontation Clause challenge to a Maryland statute allowing a child abuse victim to testify outside the presence of the criminal defendant using one-way, closed-circuit television. The Supreme Court held that “a defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured.” Id. at 850. Tate and the State generally agree that we should formally adopt and apply at least the first part (the necessity prong) of the two-part analysis set forth in Craig, although they disagree about the relevance of the second part of the test concerning reliability. We first 9 summarize the two-part analysis in Craig and then evaluate whether that test is appropriate to apply to a Confrontation Clause challenge concerning live, two-way, remote video conferencing. The first part of the test in Craig is that the lack of face-to-face confrontation must be “necessary to further an important public policy.” Id. To satisfy this part of the test, the necessity prong, the State must advance a valid and important public policy, and the district court must make a “case-specific” finding of necessity to excuse a witness from in-person testimony. Id. at 855. In Craig, the “state interest in protecting child witnesses from the trauma of testifying in a child abuse case” was deemed “sufficiently important to justify the use of a special procedure that permits a child witness . . . to testify at trial against a defendant in the absence of face-to-face confrontation . . . .” Id. Accordingly, the Court held that a child witness may testify via one-way, remote technology in a child abuse case without violating the Confrontation Clause as long as a trial court makes a case-specific finding of necessity. 6 Id. at 860. When evaluating the reliability of the testimony under the second part of the Craig test, the Supreme Court found it “significant” that, apart from a face-to-face confrontation, “Maryland’s procedure preserves all of the other elements of the confrontation right: The child witness must . . . testify under oath; the defendant retains full opportunity for The Court ultimately remanded the case to the Maryland Court of Appeals to determine, under the new legal standard that the Court established in the case, whether the district court made the necessary case-specific finding regarding the child witness—that testimony by the child witness in Craig’s physical presence would result in the child suffering “serious emotional distress such that the child cannot reasonably communicate.” Craig, 497 U.S. at 860. 6 10 contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies.” Craig, 497 U.S. at 851. The Court noted that the presence of these key elements of confrontation “ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony.” Id. Given the presence of these safeguards, the Court ultimately concluded that “to the extent that a proper finding of necessity has been made, the admission of such testimony would be consonant with the Confrontation Clause.” Id. at 857. The rationale set forth in Craig applies to witness testimony, whether by a child or an adult, taken by use of live, two-way, remote video technology like the type used here. Notably, nearly every jurisdiction that has addressed a defendant’s Confrontation Clause challenge to the use of two-way testimony using video conferencing—both before and during the COVID-19 pandemic—has applied the Craig test. See, e.g., In re Interest of C.A.R.A. v. Jackson Cnty. Juv. Off., 637 S.W.3d 50, 58–60 (Mo. 2022) (applying Craig to live, two-way, remote video testimony during the COVID-19 pandemic); State v. Comacho, 960 N.W.2d 739, 754–56 (Neb. 2021) (applying Craig to live, two-way, remote video testimony of a law enforcement officer during the COVID-19 pandemic); United States v. Carter, 907 F.3d 1199, 1206–08 (9th Cir. 2018) (applying Craig pre-pandemic to testimony of an adult witness by live, two-way, remote video); United States v. Yates, 438 F.3d 1307, 1313 (11th Cir. 2006) (en banc) (applying Craig pre-pandemic to testimony of adult witnesses by live, two-way, remote video); United States v. Bordeaux, 400 F.3d 548, 554 (8th Cir. 2005) (applying Craig pre-pandemic to testimony of a child 11 witness by live, two-way, remote video). We agree that Craig is the appropriate test to assess a Confrontation Clause challenge to remote testimony, and we formally adopt it here. Tate argues that we should rely only on the Craig necessity prong, and not consider the Craig reliability prong, because a later-decided Supreme Court case, Crawford v. Washington, 541 U.S. 36 (2004), has limited Craig’s viability. 7 In Crawford, the Supreme Court overruled its decision in Ohio v. Roberts, 448 U.S. 56 (1980). In Roberts, the Court decided that admission of a hearsay statement did not violate the Confrontation Clause when a declarant was unavailable to testify if the statement contained “adequate indicia of reliability.” 448 U.S. at 66 (internal quotation marks omitted). Tate asserts that because much of the Supreme Court’s reasoning and support for the reliability prong in Craig came from Roberts, the Supreme Court’s decision to overturn Roberts in Crawford has completely undermined the reliability prong. According to Tate, other courts have recognized this impact on the reliability prong and now exclusively rely on the necessity prong when applying Craig post-Crawford. See, e.g., In re Interest of C.A.R.A., 637 S.W.3d at 62–63. Tate contends that we must do the same. At the court of appeals, Tate argued that Minnesota courts should not adopt Craig, but instead should adopt the Michigan standard applying Crawford v. Washington, 541 U.S. 36 (2004) to nearly all remote testimony. See Tate, 969 N.W.2d at 385 n.8 (citing People v. Jemison, 952 N.W.2d 394 (Mich. 2020)). Tate still suggests a strict application of Crawford would be proper, but primarily advocates for a more robust application of Craig’s necessity prong here. Because we conclude, as discussed below, that Crawford does not overrule or undermine Craig, the court of appeals was correct to reject adopting Jemison. Craig is the appropriate constitutional standard. 7 12 The State argues that Craig remains good law and urges us to apply each factor of the test—necessity and reliability—under a proper Craig analysis. It notes that Crawford did not overrule or undermine Craig because the cases addressed distinctly different confrontation issues. We agree with the State for several reasons. First, “only the Supreme Court may overrule one of its own decisions.” State v. Brist, 812 N.W.2d 51, 56 (Minn. 2012) (holding that a Supreme Court decision casting doubt on a previous opinion’s reasoning is different from overruling the prior opinion’s holding). Even acknowledging that Crawford casts some doubt on the reasoning underlying the reliability prong of the Craig test, we note that Crawford did not overrule Craig. In fact, the majority in Crawford does not mention Craig in its analysis. Because the Supreme Court has not exercised its exclusive prerogative of overruling its own decision, it follows that Craig, in its entirety, remains good law. See Brist, 812 N.W.2d at 57 (holding, under the same reasoning, that a different Supreme Court Confrontation Clause case, Bourjaily v. United States, 483 U.S. 171 (1987), remained good law post-Crawford). Moreover, Crawford does not undermine the holding of Craig because the cases address different Confrontation Clause issues. Crawford discussed whether the Confrontation Clause is violated by the admission at trial of a testimonial out-of-court statement. Crawford, 541 U.S. at 68. Before such a hearsay statement is admissible, Crawford held that the witness must be unavailable and the defendant must have had a prior opportunity for cross-examination. Id. at 68–69. Crawford simply did not address the face-to-face aspect of confrontation and whether other key elements of confrontation, 13 including a full, virtual cross-examination, can satisfy a defendant’s right to confrontation under certain narrow circumstances. In addition, Tate’s argument that we should examine only the necessity prong of the Craig test is unpersuasive. She relies on several cases to assert that post-Crawford, courts only consider Craig’s necessity prong. See, e.g., Carter, 907 F.3d at 1202 (concluding that a witness’s travel limitations because of a problematic pregnancy in the seventh month was a temporary disability and insufficient to meet the necessity prong); Yates, 438 F.3d at 1316 (concluding that the government did not establish necessity when it could depose overseas witnesses who refused to travel to the United States). But in those cases, the district courts failed adequately to consider the necessity prong, making a determination of the reliability of the testimony unnecessary. In re Interest of C.A.R.A. provides a good example of when reliability was not examined. In that case, the Missouri Supreme Court applied Craig during the COVID-19 pandemic to assess a defendant’s challenge to remote testimony in a child sexual abuse case. In re Interest of C.A.R.A., 637 S.W.3d at 64–66. There, the testimony of every state witness—the child victim, her mother, and her babysitter—was presented using remote video conferencing. Id. at 54. The Missouri Supreme Court found a violation of the Confrontation Clause because the district court failed to determine whether it was necessary to have every witness testify remotely. Id. at 66. The supreme court did not even discuss whether the testimony was reliable because the case hinged on the necessity for the remote testimony. Id. Accordingly, Tate’s reliance on In re Interest of C.A.R.A. is misplaced. 14 Finally, the State correctly emphasizes the need to apply each prong of the Craig test robustly. To ignore the reliability prong would unnecessarily diminish the importance of various elements of the right to confrontation, including a defendant’s confrontation tool of cross-examination—“the greatest legal engine ever invented for the discovery of truth.” California v. Green, 399 U.S. 149, 158 (1970) (citation omitted) (internal quotation marks omitted). See also Crawford, 541 U.S. at 61 (holding that the Confrontation Clause requires “not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination”). Accordingly, we hold that the Craig two-part test is the proper constitutional test to determine whether a witness can testify outside of a defendant’s physical presence by live, two-way, remote video conferencing without violating the defendant’s right to confrontation. II. Applying the Craig two-part test here, we conclude that the State has shown that, under the specific circumstances of this trial, the lead investigator’s remote testimony was necessary to advance an important public policy interest, and that his testimony was reliable. See Craig, 497 U.S. at 850. A. Turning to the first prong of necessity, Craig instructs us that a valid public policy interest must be narrowly defined, and that necessity requires specificity. Id. at 848–50, 857–58. General public policy concerns by themselves are insufficient. Coy, 487 U.S. at 1021. The district court must find that the specific circumstances surrounding a specific 15 witness warrant denying the right to face-to-face confrontation. Craig, 497 U.S. at 850, 855. The State bears the burden to make an adequate showing of necessity. Id. at 855. Here, when evaluating the need for the district court to allow the remote testimony of one witness, we must consider that this jury trial occurred in November 2020, during the second deadly wave of a “global health emergency.” State v. Paige, 977 N.W.2d 829, 840 (Minn. 2022). The judicial branch was then operating under uncertain and ever-changing circumstances relating to the global COVID-19 pandemic. Minnesota’s Governor had first declared the pandemic to be a peacetime emergency in March 2020. Emerg. Exec. Order No. 20-01, Declaring a Peacetime Emergency & Coordinating Minnesota’s Strategy to Protect Minnesotans from COVID-19 (Mar. 13, 2020) (ordering non-essential workers to stay home and temporarily closing bars, restaurants, and other public accommodations). The Governor continuously extended the emergency order, 8 including on November 12, 2020, only days before Tate’s trial was to begin. Emerg. Exec. Order No. 20-97, Extending the COVID-19 Peacetime Emergency Declared in Executive Order 20-01 (Nov. 12, 2020) (extending order). The November 12, 2020, Emergency Order explained in stark detail the harms that Minnesotans were then experiencing because of the COVID-19 pandemic: From November 3 to November 6, Minnesota reported four straight days of record daily COVID-19 cases. Two days later, Minnesota set another state See also Emerg. Exec. Order No. 20-33, Extending Stay at Home Order & Temporary Closure of Bars, Restaurants, and Other Places of Public Accommodation (Apr. 8, 2020) (extending order); Emerg. Exec. Order No. 20-35, Extending the COVID-19 Peacetime Emergency Declared in Executive Order 20-01 (Apr. 13, 2020) (extending order and recognizing that pandemic was an “unprecedented and rapidly evolving challenge”). 8 16 record of 5,908 new cases. Yesterday, we lost 56 Minnesotans to COVID-19, setting a grim new record for deaths reported in a single day. This surge has placed our hospitals under immense strain. Intensive Care Units are on the verge of dangerous capacity shortages in many areas of the state. Minnesota has had over 194,000 confirmed COVID-19 cases, with over 12,000 hospitalizations and over 2,700 fatalities. We have continued to learn more about COVID-19’s propensity to spread rapidly throughout our communities—both rural and urban—and continued action is necessary to mitigate its impacts. Id. at 1–2. The Minnesota court system was also in flux when Tate’s trial was held. Shortly after the Governor’s first emergency order, the Chief Justice suspended in-person hearings and all jury trials, directing cases to be managed via remote technology. Continuing Operations of the Courts of the State of Minnesota Under a Statewide Peacetime Declaration of Emergency, No. ADM20-8001, Order at 3–6 (Minn. filed Mar. 20, 2020). In a May order, the Chief Justice approved a pilot program to begin in June 2020, to determine whether jury trials could be safely held. Continuing Operations of the Minnesota Judicial Branch Under Emergency Executive Order 20-48, No. ADM20-8001, Order at 2 (Minn. filed May 1, 2020). The pilot program, later expanded to the entire state, required courts to conform with the Minnesota Judicial Branch’s COVID-19 Preparedness Plan to ensure the safety of all participating in court proceedings. Operations of the Minnesota Judicial Branch Under Emergency Executive Order Nos. 20-53, 20-56, No. ADM20-.8001, Order at 2 (Minn. filed May 15, 2020) (requiring, among other safety precautions, mask-wearing and physical distance). Only 4 days after Tate’s trial concluded, the Chief Justice ordered that no new jury trials would begin before February 1, 2021, citing, among other reasons, an alarming increase in COVID-19 cases across the state. Continuing 17 Operations of the Minnesota Judicial Branch, No. ADM20-8001, Order at 2 (Minn. filed Nov. 20, 2020). 9 Given this extraordinary context of courts trying to administer justice safely during a virulent and deadly outbreak of disease, the district court correctly found that a valid public policy interest was furthered by the use of remote testimony for this one witness. The transcripts make it clear that the district court understood that jury trials in the state “are to continue” and acted accordingly to protect “the safety of anyone who will be in the courtroom” by reducing the “unnecessary risk of the disease spread.” Here, the lead investigator had been exposed to a person who had tested positive for COVID-19 and was advised by public health officials to quarantine. With this exposure, the witness was particularly susceptible to becoming ill, and his physical presence in the courtroom would have risked the health and safety of everyone participating in a confined courtroom setting. At this stage of the pandemic, vaccines were not yet available to protect those in the courtroom, 10 including a number of jurors whom the record showed to be at high risk if they caught the disease. One certain way to proceed with trial and to prevent the virus’s spread was for the lead investigator to quarantine. The district court had to make a judgment call for this specific case and the testimony of one specific witness under uncertain and rapidly changing pandemic conditions. We agree with the court’s Tate herself recognized the severity of the situation in her motions in limine to the district court asking for a continuance. She noted that she had “concerns regarding having a jury trial right now where the number of COVID 19 cases in our area is very high.” 9 Sencer, CDC Museum Covid-19 Timeline, https://www.cdc.gov/museum/timeline/covid19.html [opinion attachment]. 10 18 CDC.gov, determination that the lead investigator’s absence from the courtroom and remote testimony was necessary to further the important public policy of preventing the spread of COVID-19 while safely conducting a criminal trial. In sum, we hold that the necessity prong was met under these specific circumstances. We emphasize that Tate’s trial was held during an uncertain, critical time of the pandemic when knowledge regarding COVID-19’s spread and treatment was much more limited than today, and when emergency orders were still in effect to limit public interaction and exposure to the virus. The district court in November 2020 was operating under vastly different circumstances than those facing courts today. The decision to allow one of the State’s five witnesses—and one of the three task-force agents who were present for the controlled buy—to testify remotely to protect the health and safety of others during Tate’s trial was therefore proper. Tate contends that the State cannot show that remote testimony was necessary when the district court could simply have granted a short continuance until the lead investigator became available. In Craig, the Supreme Court addressed the use of less restrictive alternatives than the one-way closed-circuit television procedure at issue there. 497 U.S. at 859–60. The Court noted that the decision of the court of appeals—which concluded that the finding of necessity to justify remote testimony was not met—appeared to rest in part upon the district court’s failure to consider such alternatives. Id. Although the Supreme Court recognized that “such evidentiary requirements could strengthen the grounds for use of protective measures,” the Court “decline[d] to establish, as a matter of 19 federal constitutional law, any such categorical evidentiary prerequisites for the use of the one-way television procedure.” Id. at 860. Accordingly, we decline to hold that the granting of a continuance—a matter typically entrusted to the discretion of the district court 11—is required before a district court may order the use of live, two-way, remote video testimony in a criminal trial. Decisions to allow remote testimony must be evaluated on a case-by-case basis, see Craig, 497 U.S. at 855, and the possibility of a continuance does not necessarily undercut a showing of necessity. We do not think the possibility of a continuance undercut the State’s showing of necessity here. The district court did consider Tate’s motion for a fifth trial continuance but did so in the context of the global pandemic in November 2020. Although a two-week continuance might sound reasonable in present circumstances, when the district court decided the issue, it knew from the Governor’s extension of the emergency order—issued only 4 days before trial started—that COVID-19 cases were surging in Minnesota, hospitals were under great strain with capacity shortages in their intensive care units, and a new record for daily deaths had been set in Minnesota. The district court also knew that, given these developments, new judicial branch orders may soon be issued regarding the If we were evaluating the district court’s denial of a continuance here under the typical discretionary standard, we would only reverse upon “a showing of clear abuse of discretion.” State v. Smith, 932 N.W.2d 257, 268 (Minn. 2019) (citation omitted). A denial of a continuance is an abuse of discretion when the defendant’s strategy is so prejudiced that the denial materially affects the outcome of the trial. Id. The burden would be on the defendant to show that she was sufficiently prejudiced to justify reversal. State v. Courtney, 696 N.W.2d 73, 81 (Minn. 2005). 11 20 continuation of jury trials. To add to the uncertainty, the district court did not know whether the lead investigator exposed to the virus would get sick, how sick he would become if infected or how long it would be until he could appear in person, and whether, in the meantime, anyone else involved in the trial would get sick, leading to additional continuances. In short, unlike other cases when a district court could predict an end date, see, e.g., Carter, 907 F.3d at 1208 (concluding that the temporary disability of a problematic pregnancy in the seventh month did not meet Craig’s necessity test), the court here did not know when the unpredictable COVID-19 crisis would ameliorate or end. Consequently, we conclude that the first Craig prong is satisfied. The State has met its burden to show that the use of live, two-way, remote video technology by one of its witnesses was necessary to advance an important public policy. B. Turning next to Craig’s reliability prong, we conclude that this second factor is satisfied here as well. Testimony is generally reliable under the Confrontation Clause if a witness testifies in the physical presence of the defendant, is sworn under oath, is subject to cross-examination, and can be properly observed by the trier of fact. Craig, 497 U.S. at 845–46. Physical presence may be excused, however, if the court preserves “all of the other elements of the confrontation right: . . . . oath, cross-examination, and observation of the witness’ demeanor.” Id. at 851. The district court’s order met every reliability element identified in Craig other than physical presence in the courtroom. The lead investigator was sworn in under oath. After he was sworn in, the district court confirmed that the lead investigator was alone during his 21 testimony and was not relying on anything besides court-approved materials. The judge, jury, and counsel were able to see, hear, and observe the lead investigator’s demeanor during his testimony. The district court required “the largest screen available” (a 65-inch screen) for the remote testimony and confirmed that the technology worked beforehand. Defense counsel also confirmed that the lead investigator could see and hear him before counsel began cross-examination. Although some subtle intricacies of the witness’s demeanor may have been lost because the lead investigator was not physically in court, the jury, counsel, the court, and the defendant could see his face with reasonable clarity and had the opportunity to assess his manner when testifying. See, e.g., Comacho, 960 N.W.2d at 756 (stating that Comacho, his counsel, and the jury could observe the witness’s demeanor “as he testified in real time”). More importantly, defense counsel had ample opportunity to cross-examine the lead investigator, and the transcript shows that he conducted an effective cross-examination. Even though the lead investigator had some trouble seeing a portion of a lab report, his testimony reflected the point that defense counsel intended to make—that he had not submitted the evidence for fingerprinting or DNA analysis. Accordingly, the reliability of his testimony was assessed “by testing in the crucible of cross-examination.” Crawford, 541 U.S. at 61. Overall, the district court took sufficient steps to ensure the reliability of the lead investigator’s testimony via Zoom. The court of appeals properly concluded that procedures used by the district court satisfied the reliability prong of Craig. 12 Tate also claims that the district court violated Minnesota Rule of Criminal Procedure 1.05, subdivisions 4 and 9, because those rules require that the parties must each 12 22 In sum, applying Craig’s two-part test here, we conclude that Tate’s right to confrontation under the federal and state constitutions was not violated when the district court permitted one witness to testify using live, two-way, remote video technology during a jury trial because the remote testimony was necessary under the circumstances then presented by the COVID-19 pandemic, and the testimony was sufficiently reliable. 13 CONCLUSION For the foregoing reasons, we affirm the decision of the court of appeals and uphold Tate’s conviction. Affirmed. stipulate and agree on any witness who testifies remotely. Tate did not raise this issue at the court of appeals or in her petition for review, so the argument has been forfeited. See State v. Myhre, 875 N.W.2d 799, 806 (Minn. 2016). Moreover, even if we considered the argument, it lacks merit because the rule was suspended by a judicial branch order dated May 15, 2020. Operations of the Minnesota Judicial Branch Under Emergency Executive Order Nos. 20-53, 20-56, No. ADM20-8001, Order at 3 (Minn. filed May 15, 2020). Because we conclude that no Confrontation Clause violation occurred here, we need not reach the issue of harmless error. Even if we were to address that issue, however, we would conclude that any error here was harmless. See Caulfield, 722 N.W.2d at 314 (holding that an error violating a constitutional right is harmless beyond a reasonable doubt if it could not have reasonably impacted the jury’s decision). 13 23 DISSENT THISSEN, Justice (dissenting). COVID-19 is not a universal justification for ignoring a criminal defendant’s constitutional rights. I dissent from the court’s decision because the use of remote testimony was not necessary to avoid the risks presented by the COVID-19 pandemic. The district court could have granted a continuance and avoided those risks. Accordingly, I would reverse. A. As the court observes, the Confrontation Clause generally “guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 1016–17 (1988). The United States Supreme Court has described several reasons physical face-to-face confrontation is so important. It gives the accused: [A]n opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. Maryland v. Craig, 497 U.S. 836, 845 (1990) (quoting Mattox v. United States, 156 U.S. 237, 242–43 (1895)). In addition, the Supreme Court has noted the importance of a witness looking a defendant in the eye when he testifies because “[i]t is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back.’ ” Coy, 487 U.S. at 1019. And “there is something deep in human nature that regards face-to-face confrontation between accused and accuser as ‘essential to a fair trial in a criminal prosecution.’ ” Id. at 1018 (quoting Pointer v. Texas, 380 U.S. 400, 404 (1965)). None of the interests are as well D-1 served when a witness testifies remotely, and so physical, face-to-face testimony should not “easily be dispensed with.” Craig, 497 U.S. at 850. I agree with the court that the standard stated in Craig is the proper standard for assessing whether the district court may constitutionally “dispense with” the Sixth Amendment right to confrontation and allow a “fundamental” State witness (as the State itself described the investigator) to testify remotely rather than in-person. See id. Because physical, face-to-face confrontation serves such essential functions in our criminal justice system, Craig instructs that the constitutional guarantee of in-person testimony may be denied “only where denial of such confrontation is necessary to further an important public policy.” 1 Id. (emphasis added). That “only” is important and should not be ignored. It is an acknowledgment that we are dealing with a constitutional right and not merely with a convenience; this case is not about whether the district court abused its discretion. If there is another way besides remote testimony to serve the identified public policy interest, then a district court cannot constitutionally jettison physical, face-to-face confrontation. In this case, the important public policy was keeping jurors, court staff, witnesses, and the parties and their attorneys safe from the risk of COVID-19 infection and to interrupt spread of the disease. And I agree that protecting trial participants from the health risks associated with COVID-19 is an important public policy. Under Craig, the State must also demonstrate that the reliability of the testimony of the remote witness is otherwise assured. Craig, 497 U.S. at 850. Because I conclude that the State has not proven that the denial of the right to physical face-to-face confrontation was necessary, I do not need to reach the additional “otherwise reliable” requirement of the Craig test and express no views on the continued viability of that portion of the Craig test in light of the Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004). 1 D-2 I disagree, however, that suspending Tate’s constitutional right to confrontation was necessary to avoid those health risks. A continuance would have readily avoided those same health risks. 2 Indeed, no one denies that is the case. Moreover, a continuance would not have implicated any of Tate’s other constitutional rights. She was not demanding a speedy trial. Further, she was not in custody while awaiting trial (and was ultimately sentenced to probation). And there is absolutely no evidence in the record that the State was concerned about witnesses disappearing or evidence going stale. The only reason suggested in the record for the district court’s refusal to grant a continuance instead of suspending Tate’s constitutional confrontation right was the court’s interest in keeping the case moving. Indeed, the district court suggested as much, stating In assessing whether denial of physical, face-to-face confrontation is necessary, we cannot ignore reasonable alternatives to the suspension of constitutional rights. Craig does not prohibit consideration of other alternatives and certainly does not foreclose consideration of whether denial of an accused’s confrontation right is necessary because a continuance would equally serve the public interest that is being proffered to justify remote testimony. Otherwise, the Craig court’s directive that the right to physical face-to-face confrontation may be dispensed with “only where denial of such confrontation is necessary to further an important public policy” is nonsensical. 497 U.S. at 850. The Craig court merely held that a trial court need not make specific findings on necessity as long as the record supported the need for remote testimony. Id. at 860 (concluding that, despite the lack of a specific finding, the trial court “could well have found, on the basis of the expert testimony before it, that testimony by the child witnesses in the courtroom in the defendant’s presence will result in [each] child suffering serious emotional distress such that the child cannot reasonably communicate”) (citation omitted) (internal quotation marks omitted). Moreover, the reference to “less restrictive alternatives” in Craig was directly tied to the question of whether the trial judge had to first observe the child witnesses in the presence of the defendant who was alleged to have abused them. Id. at 859–60. As noted in the above parenthetical, such observation was unnecessary in light of the expert testimony in the case. Id. at 860. Here, the record does not support the district court’s conclusion that it was necessary to deny Tate her Sixth Amendment right to confrontation because the district court could have continued the case and achieved the same protections against the infection and spread of COVID-19. 2 D-3 in the discussion of the continuance request that “trials are to continue” and “the jury is ready to go.” 3 While that is certainly an understandable instinct, it is not a sufficient reason to dispense with the constitutional right to confrontation. Accordingly, the deep concern expressed by the court that Tate’s trial might be postponed indefinitely is beside the point. Further, the concern about indefinite delay is not sufficient because it is based on conjecture and speculation. All we know from the record is that the investigator had been exposed to COVID-19. He very well may have been ready to testify in person a week or two later—a period of time the majority concludes “sounds reasonable.” There is no evidence he was—or ever became—infected with COVID-19. And even if the investigator had contracted COVID-19, the most likely outcome is that he would have been ready to testify within a few weeks. Of course, during that time, other witnesses, lawyers, or parties may have become sick. But again, that is pure conjecture. More critically, the chance that, if a case is continued, another witness may become unavailable for some reason at the time of the rescheduled trial is something that is true in every case and not just in the midst of a COVID-19 pandemic. Moreover, when the decision was made to proceed to trial, the district court did not know whether Minnesota courts would put criminal trials on hold since that decision was not made until after the trial ended. The court suggests that the district court may have felt pressure to proceed with the trial based on directives from the Judicial Council that jury trials “are to continue.” I acknowledge that district courts faced institutional pressure to keep jury trials going. But any directive in an order concerning court procedure—even during COVID-19—is certainly subject to constitutional limitations. 3 D-4 It cannot be that an accused’s constitutional rights can be ignored on the basis of conjecture and speculation. See Watson v. Memphis, 373 U.S. 526, 536 (1963) (stating that constitutional rights cannot be ignored based on “personal speculations or vague disquietudes”); see also F.C.C. v. League of Women Voters of California, 468 U.S. 364, 399 (1984) (stating that First Amendment rights cannot be denied “on the basis of merely speculative fears”). But that is precisely what the court’s unpredictable-end-date rule, and its application to the facts of this case, allows. Further, we cannot throw out the basic constitutional principles by which our criminal justice system operates simply by invoking the word “COVID.” I am concerned that the court’s willingness to rely on speculation and conjecture opens up a substantial hole in the essential protections afforded the accused by the constitutional right to confrontation. B. I also conclude that the denial of Tate’s Sixth Amendment right to confrontation was not harmless beyond a reasonable doubt. See State v. Caulfield, 722 N.W.2d 304, 314 (Minn. 2006) (stating that where a Confrontation Clause violation is shown, reversal is mandatory unless the error is harmless beyond a reasonable doubt). The question we must decide when assessing whether a constitutional violation is harmless is not whether the jury would have convicted without the error, but rather whether the jury’s decision was “surely unattributable” to the error. State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997). We have identified nonexclusive factors that we may consider in assessing whether the jury’s decision was surely unattributable to a Confrontation Clause violation: D-5 [I]n applying the harmless-error-beyond-a-reasonable-doubt standard, we have found the error to be harmless only where several factors weigh in that direction: the evidence was presented in a manner that did not give it significant focus; the state did not dwell on it in opening and closing statements or in examining witnesses; the evidence was not highly persuasive but was circumstantial. In those cases, the harmless error conclusion has been reinforced by the strength of the evidence of guilt. But we do not have a single case applying the constitutional harmless error analysis where we have held that the strength of the evidence of guilt controls even though the other factors weigh in favor of prejudicial error. Caulfield, 722 N.W.2d at 317. The evidence of guilt must be overwhelming before an error will be found harmless beyond a reasonable doubt. Id. at 316–17. But even in cases involving overwhelming evidence, an error may still be prejudicial beyond a reasonable doubt. Id. In addition, when a Confrontation Clause violation is being reviewed for harmless error, we cannot consider “whether the witness’ testimony would have been unchanged, or the jury’s assessment unaltered” had the witness testified live rather than remotely. Coy, 487 U.S. at 1021–22. In other words, questions like whether a witness testifying in high-resolution on a big-screen television allowed the jury to assess the witness in the same way as if the witness were testifying in person—whether technology makes remote “just like live”—is irrelevant to the harmless error analysis. Rather, harmlessness must be assessed without any consideration of the investigator’s testimony. See id. Here, the decision to allow the investigator to testify remotely was not harmless beyond a reasonable doubt. The investigator was a critical witness. Indeed, the State itself told the district court that the investigator’s testimony “is fundamental to the State’s case.” D-6 The testimony of the investigator was presented in a way that was designed to secure the State’s verdict. There were only a handful of witnesses; the investigator’s testimony was not lost in a plethora of evidence. The investigator’s testimony was presented in a way (including, ironically, the fact that the witness was the sole witness to testify remotely), that gave the testimony particular focus. And the investigator was the final law enforcement officer witness before closing arguments (the confidential informant and a witness for Tate testified after the investigator). That is not to say that other evidence and witnesses were not as important to the State’s case. In particular, the informant who testified about the controlled drug buy was persuasive, as was the audio recording of the drug buy. But the informant’s testimony about what happened inside the house during the controlled buy and who was actually speaking on the unclear audio was directly contradicted by other witnesses present in the house. That is not true of the investigator’s testimony, whose testimony was left unrebutted. Moreover, a key argument of Tate at trial was that the informant never, in fact, purchased drugs from Tate but rather that the informant carried the drugs with him to the buy. Accordingly, the testimony of the investigator, who was an integral part of setting up the controlled buy, was critical and highly persuasive. His was the only direct testimony concerning certain aspects of ensuring the informant was not manipulating the controlled buy set up. As noted, in assessing the harmfulness of the error, we must exclude this testimony. If we do so, the State’s rebuttal of Tate’s defense is significantly weakened. D-7 The prosecutor must have thought that the investigator’s testimony was critical as well. The prosecutor relied heavily in closing, and spent a substantial portion of closing, on the testimony of “law enforcement” about the careful process they undertook to conduct the controlled buy. The jury plainly understood that the investigator was part of “law enforcement” that the prosecutor repeatedly referenced. In short, the investigator’s testimony was presented in a manner that sharply directed the jury’s focus on the testimony; the State dwelled on the investigator’s testimony in closing statements and the timing and nature of the investigator’s testimony drew more attention to it; the State itself characterized the witness as “fundamental”; and the evidence was the only direct testimony—and highly persuasive testimony—on a critical disputed fact. And, especially in the absence of the investigator’s testimony, the evidence against Tate was not overwhelming. See generally Caulfield, 722 N.W.2d at 317–18. On these facts, I cannot conclude that the jury’s verdict was “surely unattributable” to the district court’s denial of Tate’s Sixth Amendment right to confront her accusers. I would reverse. D-8
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