State v. L. Strommen, 547 P.3d 1227

Luke Strommen was convicted of Sexual Intercourse Without Consent (SIWC) in Montana District Court based on allegations of a sexual relationship with a minor that took place between 2009 and 2011.
In advance of trial, the State moved to present their expert, Dr. Sheri Vanino, remotely by video due to her purported scheduling conflicts related to therapy sessions in Denver, Colorado.
The trial, originally scheduled for March 2020, was delayed to July 2020 due to disclosure of new evidence and the emerging COVID-19 pandemic, with the court implementing broad protocols for remote testimony.
Despite the COVID-19 context, Dr. Vanino’s remote testimony approval was based primarily on her pre-pandemic scheduling conflicts, not on public health concerns, and she ultimately testified from Massachusetts, not Denver.
Strommen objected to remote expert testimony, citing his confrontation rights under the U.S. and Montana constitutions, and moved for a mistrial after learning no scheduling conflict actually existed, but the trial court denied the motion.
After conviction and a 40-year sentence, Strommen appealed, challenging the remote expert testimony as a violation of his constitutional rights.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether remote expert testimony by video at trial violated confrontation rights.	Remote expert needed due to scheduling; no constitutional violation.	Personal, face-to-face cross-examination essential to credibility and fairness.	Allowing remote testimony violated confrontation rights; conviction reversed.
Whether State showed unavailability or important public policy as required.	Scheduling conflict and COVID-19 justified remote testimony.	State failed to show the expert was truly unavailable; convenience is not enough.	State failed to show sufficient justification; right was violated.
Whether Dr. Vanino’s testimony was “testimonial” subject to confrontation.	Not adverse or testimonial, thus confrontation right not triggered.	Expert was clearly an adverse witness; testimony aided prosecution.	Testimony was "testimonial" and subject to confrontation.
Whether the error was harmless.	Any error did not affect outcome; error was harmless.	Testimony was critical to case; error was prejudicial.	Error was not harmless; expert's testimony likely influenced the verdict.

Coy v. Iowa, 487 U.S. 1012 (face-to-face confrontation is core to Sixth Amendment)
Maryland v. Craig, 497 U.S. 836 (recognizes exceptions to face-to-face confrontation for important public policy, but requires case-specific findings)
Crawford v. Washington, 541 U.S. 36 (testimonial statements require confrontation unless witness is unavailable and prior examination occurred)
Michigan v. Bryant, 562 U.S. 344 (primary purpose test for testimonial statements)
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (all prosecution witnesses offering testimonial evidence are subject to confrontation)
State v. Mercier, 403 Mont. 34 (Montana precedent on video testimony and the Craig standard)
State v. Martell, 406 Mont. 488 (remote testimony requires more than witness convenience or expense)
State v. Bailey, 404 Mont. 384 (similar analysis on remote expert testimony and confrontation rights)
State v. Norquay, 359 Mont. 257 (pretrial deposition testimony and confrontation rights)