2013 NMCA 081
N.M.2013Background
- Vernard Smith was arrested for DWI; his blood tested at 0.07% by an analyst from the State’s Scientific Laboratory Division (SLD).
- At trial the SLD analyst testified about the blood test results via two-way video conference over Smith’s objection.
- The district court allowed video testimony because the analyst would have to travel several hours and the lab would be short-staffed, finding no material difference between in-person and video testimony.
- The jury convicted Smith; Smith appealed arguing the video testimony violated his Sixth Amendment Confrontation Clause rights.
- The Court of Appeals reviews Confrontation Clause questions de novo and limited its decision to that issue, reversing the conviction because the court found the necessity showing inadequate and the error not harmless.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether two-way live video testimony satisfies the Sixth Amendment absent a showing of necessity | State: two-way video is identical to live testimony and satisfies the Confrontation Clause | Smith: video testimony is a virtual confrontation and violates face-to-face right absent necessity | Two-way video testimony does not satisfy the Confrontation Clause unless a particularized necessity for departing from face-to-face confrontation is shown; here no adequate necessity was shown |
| Whether convenience of the witness or employer can justify video testimony | State: travel burden and laboratory staffing justify video testimony | Smith: convenience is insufficient; necessity must be for an important public policy | Convenience or staffing burdens do not constitute the required necessity; such reasons are inadequate |
| Whether Craig controls and allows this use of video testimony | State: Craig permits video where other Confrontation elements (oath, cross-examination, demeanor) are preserved | Smith: Craig permits an exception only when necessary to further an important public policy; it does not generally authorize video testimony | Craig permits a narrow exception only with particularized necessity tied to an important public policy; it does not automatically authorize two-way video testimony |
| Whether the Confrontation error was harmless | State: other evidence (officer observations) supported conviction so error was harmless | Smith: blood-test testimony was the only strong proof of alcohol; other evidence was weak | Error was not harmless beyond a reasonable doubt; blood-test testimony likely influenced the jury |
Key Cases Cited
- Maryland v. Craig, 497 U.S. 836 (1990) (face-to-face right may be displaced only when necessary to further an important public policy and reliability is otherwise assured)
- Coy v. Iowa, 487 U.S. 1012 (1988) (trial court must make specific findings to justify departure from face-to-face confrontation)
- Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011) (analyst who performed test must testify under Confrontation Clause principles)
- Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (forensic analysts’ certificates are testimonial; defendants have right to confront analysts)
- United States v. Bordeaux, 400 F.3d 548 (8th Cir. 2005) (two-way video creates a virtual confrontation and Craig necessity test applies)
- Harrell v. State, 709 So. 2d 1364 (Fla. 1998) (satellite testimony falls short of live face-to-face testimony)
- People v. Buie, 775 N.W.2d 817 (Mich. Ct. App. 2009) (virtual testimony lacks the same truth-inducing effect as physical presence)
- Mattox v. United States, 156 U.S. 237 (1895) (historical articulation of the face-to-face confrontation right)