355 P.3d 729
Mont.2015Background
- Michael Duane was convicted in Missoula Municipal Court of misdemeanor animal cruelty after a jury found the living conditions of his dogs unlawful; one puppy had died from blunt force trauma.
- The City’s veterinary witness, Dr. Lindsay Sjolin, had moved to California before trial; the City sought to have her testify via Skype rather than travel to three separate trials.
- Duane objected, arguing Skype testimony violated his Montana constitutional right to "meet the witnesses against him face to face" and that M. R. Evid. 611(e) barred remote testimony.
- The Municipal Court allowed Skype testimony; Sjolin testified live over Skype, was sworn, and underwent direct and cross-examination without technical problems.
- Duane appealed; the Fourth Judicial District Court affirmed. The Montana Supreme Court granted review to decide confrontation and Rule 611(e) issues.
Issues
| Issue | Plaintiff's Argument (Duane) | Defendant's Argument (City) | Held |
|---|---|---|---|
| Whether permitting witness testimony via Skype violates the Montana Constitution’s "face to face" confrontation right | Skype cannot satisfy the right to face-to-face confrontation; remote testimony undermines demeanor assessment and cross-examination | Real-time two-way video permits observation of demeanor, oath, and contemporaneous cross-examination; travel would impose undue burden/cost | Court affirmed: Skype testimony allowed where it preserves hallmarks of confrontation and in-person testimony is impracticable |
| Whether M. R. Evid. 611(e) bars remote testimony in criminal trials | Rule 611(e) requires a witness be heard in the physical presence of parties, so remote testimony is impermissible | Rule applies to criminal cases but is satisfied when witness is live, under oath, visible, and subject to examination; remote testimony may be allowed when necessary | Court: Rule 611(e) applies to criminal cases, but here it was satisfied by Skype; any district-court misstatement was harmless error |
Key Cases Cited
- Maryland v. Craig, 497 U.S. 836 (U.S. 1990) (upheld one-way video testimony where procedure preserved reliability and adversarial testing)
- State v. Stock, 361 Mont. 1 (Mont. 2011) (discussed Montana confrontation clause; did not require literal face-to-face in all circumstances)
- Bonamarte v. Bonamarte, 263 Mont. 170 (Mont. 1994) (refused telephone testimony in civil proceeding and articulated policies favoring in-person testimony)
- State v. Clark, 290 Mont. 479 (Mont. 1998) (recognized state constitution may provide greater confrontation protections than federal constitution)