STATE OF MONTANA, Plaintiff and Appellee, v. TREVOR JOSEPH MERCIER, Defendant and Appellant.
DA 18-0006
IN THE SUPREME COURT OF THE STATE OF MONTANA
January 26, 2021
2021 MT 12
Honorable Matthew J. Cuffe, Presiding Judge
APPEAL FROM: District Court of the Nineteenth Judicial District, In and For the County of Lincoln, Cause No. DC 16-110. COUNSEL OF RECORD: For Appellant: Chad Wright, Appellate Defender, Koan Mercer (argued), Assistant Appellate Defender, Helena, Montana. For Appellee: Austin Knudsen, Montana Attorney General, Michael P. Dougherty (argued), Assistant Attorney General, Rob Cameron, Deputy Attorney General, Helena, Montana; Marcia Jean Boris, Lincoln County Attorney, Libby, Montana. Argued and Submitted: October 14, 2020.
Clerk
¶1 Trevor Joseph Mercier appeals his convictions after jury trial in the Nineteenth Judicial District Court, Lincoln County, of Deliberate Homicide and Tampering with Physical Evidence. We affirm in part and reverse in part, stating the issues as follows:
- Was Mercier denied his right under the United States and Montana Constitutions to confront witnesses against him when the State presented a foundational witness in real time by two-way videoconference?
- If so, did the State meet its burden to demonstrate the error was harmless as to the Deliberate Homicide conviction and the Tampering with Physical Evidence conviction?
- Did the prosecutor commit plain error during the closing argument?
We conclude Mercier‘s right of confrontation was violated, requiring reversal of his conviction of Tampering with Physical Evidence. We affirm his Deliberate Homicide conviction.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Mercier and Sheena Devine were in a relationship that ended in early 2016. On the evening of October 5, 2016, an intoxicated Mercier went to Sheena‘s residence and began to pelt her vehicle with rocks. At 9:42 p.m., neighbors placed a 911 call to report the vandalism. A sheriff‘s deputy was dispatched to the scene, but Mercier had fled prior to his arrival. The deputy spoke with Sheena and advised her to report any further disturbances to authorities.
¶3 Sometime between 10 p.m. and 11 p.m., Mercier returned to Sheena‘s residence and again threw rocks at her vehicle. Instead of contacting police, Sheena went outside and
¶4 At approximately 10 o‘clock the next morning, October 6, Lincoln County Sheriff‘s dispatch received a call requesting medical assistance for a possible assault. The call was placed by Sheena‘s friend and neighbor who had stopped by Sheena‘s residence. An emergency medical technician arrived first and determined that Sheena had died. The EMT immediately contacted dispatch requesting expedited law enforcement support, and Officer Scott Kessel quickly proceeded to the scene. Kessel found the EMT, the friend who had placed the 911 call, and Sheena‘s two young daughters, along with her body, which was lying on the floor between a couch and rocking chair. Sheena‘s two-year-old daughter was sitting atop her discolored body, and her four-year-old daughter paced aimlessly. Sheena had sustained physical injuries, with heavy bruising above her right eye and large abrasions to her chin and right cheek. Police discovered Sheena‘s cellphone submerged in a pot of greasy water in the kitchen sink.1
¶6 Investigators removed Sheena‘s phone from the greasy water and found, somewhat remarkably, that it remained operational. However, local technicians struggled to retrieve information from the device, and it was delivered to Special Agent Brent Johnsrud of the Department of Homeland Security, Greeley, Colorado, who specialized in extracting data from electronics. Johnsrud was able to extract and analyze the phone‘s data, and prepared a written report of his findings.
¶7 Prior to trial, the State moved for leave to call Johnsrud to testify from Colorado by live two-way video. As grounds, the State offered that the $670 for roundtrip air travel and other travel expenses for purely foundational testimony was impractical. Mercier‘s objection was overruled by the District Court, and Johnsrud testified via two-way videoconferencing. Johnsrud‘s testimony addressed the methods and equipment employed to retrieve the data from the cellphone, among other foundational purposes. He testified that in order to extract data from mobile devices, a forensic examiner must “at least be able to power on the device,” and that “the raw data extraction” he had completed and provided to Agent Kevin McCarvel of the Montana Department of Justice was “an exact copy of
¶8 Mercier asked the jury, consistent with his version of incident, to find him guilty of Negligent Homicide rather than Deliberate Homicide. To counter this position, the State presented a neighbor who testified to seeing Mercier inside Sheena‘s residence around midnight. Although the medical examiner was unable to determine a specific time of death, this evidence indicated that Mercier was still in the house one hour after the physical altercation, contrary to Mercier‘s account. The State also offered two photographs from Sheena‘s phone, one of which was solid black, and the other a blurry image of Sheena‘s kitchen. The photographs were timestamped at 12:00:20 a.m. and 12:00:21 a.m. The angle at which the kitchen photograph was taken made it improbable that it was taken by Sheena‘s daughters. The photographs were the only evidence offered that Mercier had handled the phone that evening.
¶9 During closing argument, defense counsel, in an apparent attempt to reconcile errors and omissions in Mercier‘s recollection of events, repeatedly compared Mercier‘s “mistake” in his initial account to law enforcement to “forgetting the eggs” during a trip to the grocery store. Possibly confused by the analogy, but in light of Mercier‘s position that he should be found guilty of only Negligent Homicide, prosecutors inferred from this argument that the “mistake” alluded to by defense counsel was the “mistake” of killing Sheena. Defense counsel also employed another grocery parallelism, comparing Mercier‘s
¶10 Mercier was convicted of the Deliberate Homicide and Tampering with Physical Evidence charges, and appeals.
STANDARD OF REVIEW
¶11 This Court exercises plenary review of constitutional questions and applies de novo review to a district court‘s constitutional interpretations of the Sixth Amendment of the United States Constitution and
¶12 All other legal conclusions of law are evaluated for correctness subject to de novo review. City of Missoula v. Duane, 2015 MT 232, ¶ 10, 380 Mont. 290, 355 P.3d 729. Evidentiary rulings are reviewed for an abuse of discretion. Duane, ¶ 10. Abuse of discretion occurs if the district court acted arbitrarily and without the employment of conscientious judgment or in a manner that exceeds the bounds of reason, resulting in
¶13 We generally do not address “‘prosecutorial misconduct pertaining to a prosecutor‘s statements not objected to at trial.‘” State v. Aker, 2013 MT 253, ¶ 21, 371 Mont. 491, 310 P.3d 506 (quoting State v. Longfellow, 2008 MT 343, ¶ 24, 346 Mont. 286, 194 P.3d 694). However, we may review such issues under the plain error doctrine. State v. Lehrkamp, 2017 MT 203, ¶ 11, 388 Mont. 295, 400 P.3d 697 (citing State v. Walton, 2014 MT 41, ¶ 10, 374 Mont. 38, 318 P.3d 1024).
DISCUSSION
¶14 1. Was Mercier denied his right under the United States and Montana Constitutions to confront witnesses against him when the State presented a foundational witness in real time by two-way videoconference?
¶15 The Confrontation Clause of the
¶16 In its earliest case interpreting the Clause, the Supreme Court explained:
The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an 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.
¶17 Within these constitutional principles, the Supreme Court has also recognized that physical face-to-face confrontation “is not the sine qua non of the confrontation right,” and has carved out certain exceptions. Craig, 497 U.S. at 847, 110 S. Ct. at 3164 (citing Delaware v. Fensterer, 474 U.S. 15, 22, 106 S. Ct. 292, 295-96 (1985) (per curiam)); Craig, 497 U.S. at 850, 110 S. Ct. at 3166 (“[I]t is all but universally assumed that there
¶19 Courts are essentially uniform in requiring, under the first prong, “something more than [] generalized findings” of policy concerns. Coy, 487 U.S. at 1021, 108 S. Ct. at 2803. “[A] defendant‘s right to ‘physical, face-to-face confrontation at trial’ may be compromised by the use of a remote video procedure only upon a ‘case-specific finding’ that [] the denial of physical confrontation ‘is necessary to further an important public policy[.]‘” Carter, 907 F.3d at 1208 (quoting Craig, 497 U.S. at 858, 110 S. Ct. 3170); see also Green, 399 U.S. at 189 n.22, 90 S. Ct. at 1951 (Harlan, J., concurring) (noting a criminal defendant‘s constitutional rights cannot be neglected merely to avoid “added expense or inconvenience“); Carter, 907 F.3d at 1208 (holding judicial economy and “added expense or inconvenience” is insufficient to extend Craig); People v. Jemison, 505 Mich. 352, 364 (2020) (holding that saving costs is insufficient justification to extend Craig).
¶21 To satisfy Craig‘s second prong, reliability, the hallmarks of confrontation must be present—the non-physically present witness must be under oath and understand the seriousness of his or her testimony, be subject to cross-examination, and permit assessment of the witness‘s veracity by the factfinder. Duane, ¶ 15 (citing Stock, ¶ 23); Craig, 497 U.S. at 857, 110 S. Ct. at 3170; Carter, 907 F.3d at 1206 (noting that the elements of confrontation—oath and competency, cross-examination, and viewable by judge and jury—were present in satisfaction of the second prong). Craig‘s second prong is not the primary focus of this appeal.3
¶22 We pause to note that Craig‘s continuing utility has been questioned in two major respects; first, whether its analysis extends to two-way video procedures has led to a circuit split in the federal courts. Compare United States v. Gigante, 166 F.3d 75, 81 (2d Cir. 1999) (holding Craig did not apply to two-way video systems and instead applying a standard from
¶23 The second challenge to Craig‘s utility is whether it has been abrogated by the Supreme Court‘s landmark Confrontation Clause decision in Crawford. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). There, Crawford was put on trial for the stabbing death of a man who had allegedly attempted to rape Crawford‘s wife. Crawford, 541 U.S. at 38, 124 S. Ct. at 1357. Crawford‘s wife gave a tape-recorded description of
¶24 In a recent decision, the Michigan Supreme Court confined Craig to its specific facts—one-way video, child victim. Jemison, 505 Mich. at 365. That court faced an issue factually similar to the one here: over defense objection, an out-of-state expert was permitted to testify via live two-way video as a cost-saving measure. Jemison, 505 Mich. at 357-58. The court did not analyze the necessity prong in depth, noting only that “expense is not a justification for a constitutional shortcut.” Jemison, 505 Mich. at 364. Rather, the opinion focused on the reliability of testimony adverse to the defense procured by two-way video. The Michigan Supreme Court reasoned that, since Crawford had overruled Roberts—the case that established the “reliability framework” that was the cornerstone of
¶25 While ”Crawford may call into question the prior holding in Craig to the extent that Craig relied on the reliability of the video testimony[,]” reliability of the two-way video is not independently challenged here, and the only Craig issue to be resolved is whether the necessity prong has been satisfied. Thomas, 376 P.3d at 193.4 However, assuming arguendo that reliability was at issue, we are not prepared to declare the proverbial death knell to Craig just yet, and prefer to await further direction from the Supreme Court. As one commentator has noted, it may be that the two cases may coexist, with Crawford setting the standard for the type of out-of-court statements that are subject to the confrontation right and Craig governing the manner in which in-court testimony may be presented. M.C. McAllister, The Disguised Witness and Crawford‘s Uneasy Tension with Craig: Bringing Uniformity to the Supreme Court‘s Confrontation Jurisprudence, 58 Drake L. Rev. 481, 512-13 (2010). Indeed, Crawford did not even address Craig, let alone overrule it, nor was the face-to-face aspect of confrontation specifically at issue in Crawford. Stock, ¶ 25; Thomas, 376 P.3d at 193 (providing survey of other jurisdictions maintaining applicability of Craig as good law).
¶27 The State urges that the nature of the testimony—foundational with no substantive force—weighs in favor of approving the video testimony. However, nowhere in the text of the Confrontation Clause is there language limiting the type of testimonial evidence to which the right to physical confrontation applies. See
¶28 We conclude that furtherance of an important public policy to allow Special Agent Johnsrud to testify via two-way videoconferencing was not here demonstrated, and the first prong of the Craig analysis was not satisfied, in error. Johnsrud‘s video testimony was improperly admitted. Its necessary exclusion means there was no foundation for admission of the two midnight photographs extracted from Sheena‘s cell phone, which must be excluded as well.
¶30 When reviewing errors, we first determine if the error was a “structural” or “trial” error. State v. Van Kirk, 2001 MT 184, ¶ 41, 306 Mont. 215, 32 P.3d 735. “Structural” errors are those that “‘affect[] the framework within which the trial proceeds, rather than simply an error in the trial process itself.‘” Van Kirk, ¶ 38 (quoting Arizona v. Fulminante (1991), 499 U.S. 279, 310, 111 S. Ct. 1246, 1265). Structural errors are reversible and require no additional analysis for prejudice. Van Kirk, ¶ 39. Conversely, trial errors, which typically occur during the presentation of the case to the jury, are “amenable to qualitative assessment by a reviewing court for prejudicial impact relative to the other evidence introduced at trial” and are subject to harmless error review. Van Kirk, ¶ 40 (citing Montana‘s harmless error statute,
¶31 A constitutional deprivation of the defendant‘s confrontation right is a trial error and is subject to harmless error review. Carter, 907 F.3d at 1210. Pursuant thereto, the State, as the “beneficiary of a constitutional error[,]” bears the burden of proving that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828 (1967). The “assessment of harmlessness cannot include consideration of whether the witness’ testimony would have been unchanged, or the jury‘s assessment unaltered, had there been confrontation[,]” and instead harmlessness must “be determined on the basis of the remaining evidence.” Coy, 487 U.S. at 1021-22, 108 S. Ct. at 2803. We consider “the importance of the witness’ testimony in the prosecution‘s case, whether the
¶32 Here, the evidence to be analyzed is the two photographs extracted from Sheena‘s cell phone, one of the kitchen area of Sheena‘s home and both time-stamped around midnight on the night of the incident. Despite exclusion of the photographs, which gave rise to an inference that Mercier was in Sheena‘s home at midnight, the State‘s presented case remained viable on the basis of other admitted evidence sufficient to prove the same point, and which supported a finding of guilt. Indeed, this evidence was potentially even stronger than the excluded photographs. The State presented an eyewitness who testified to observing Mercier inside Sheena‘s residence around midnight—the same time the photographs were taken in the house and time-stamped—closing the shades of Sheena‘s kitchen window. Thus, the photographs were cumulative on the timing point with the testimonial evidence provided by the eyewitness. Mercier contends the eyewitness’
¶33 However, we reach the opposite conclusion regarding the Tampering conviction. The State offered no other physical or testimonial evidence tending to prove that Mercier handled Sheena‘s phone or otherwise tampered with it during the time in question. The only evidence connecting Mercier to use of the phone was the two photographs time-stamped at midnight, combined with the angle of the photograph taken of the kitchen, which gave rise to an inference that Mercier, and not a child, had taken the photograph. Because the only evidence offered by the State supporting Mercier‘s handling of the phone
¶34 3. Did the prosecutor commit plain error during the closing argument?
¶35 The purpose of plain error review is to correct an otherwise objectionable error not objected to at trial that impacts the “fairness, integrity, and public reputation of judicial proceedings.” State v. Lawrence, 2016 MT 346, ¶ 9, 386 Mont. 86, 385 P.3d 968 (internal citation and quotation omitted). We invoke plain error review sparingly, on a case-by-case basis, and only “in situations that implicate a defendant‘s fundamental constitutional rights when failing to review the alleged error may result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of the proceedings, or compromise the integrity of the judicial process.” Aker, ¶ 21 (citing State v. McDonald, 2013 MT 97, ¶ 8, 369 Mont. 483, 299 P.3d 799).
¶36 Mercier contends the State‘s comments on defense counsel‘s asserted undervaluing of Sheena‘s life was a “wholly improper ad hominem attack on defense counsel” and “create[d] a prejudicial link between defense counsel‘s alleged immorality and [Mercier‘s] guilt.” Mercier argues the comments are an appropriate basis for a new trial. The State responds that, despite Mercier‘s current characterization of the statement, a review of the entirety of defense counsel‘s summation indicates the prosecution could have reasonably understood defense counsel “to be analogizing Mercier‘s ‘mistake’ in killing Sheena to the mistake of leaving eggs off a shopping list[,]” especially in light of Mercier‘s request to be
¶37 We consider claimed improper statements by the State during closing arguments “in the context of the entire argument.” State v. Makarchuk, 2009 MT 82, ¶ 24, 349 Mont. 507, 204 P.3d 1213 (citing State v. Roubideaux, 2005 MT 324, ¶ 15, 329 Mont. 521, 125 P.3d 1114). Prosecutorial misconduct calls for reversible error if it prejudices a defendant‘s substantial rights. Lehrkamp, ¶ 15 (citation omitted). Such prejudice is not inferred and the “‘defendant must demonstrate, from the record, that the prosecutor‘s misstatements prejudiced him.‘” Lehrkamp, ¶ 15 (quoting State v. Dobrowski, 2016 MT 261, ¶ 28, 385 Mont. 179, 382 P.3d 490). Prosecutors must refrain from offering personal opinions, but may appropriately comment on “‘the gravity of the crime charged, the volume of evidence, credibility of witnesses, inferences to be drawn from various phases of evidence, and legal principles involved[.]‘” McDonald, ¶ 14 (quoting State v. Green, 2009 MT 114, ¶ 33, 350 Mont. 141, 205 P.3d 798).
¶38 A prosecutor who comments on defense counsel‘s disregard for the value of human life—as opposed to a defendant‘s potential disregard for life as evidenced by his actions—is certainly on thin ice. However, at a minimum, defense counsel‘s grocery analogies, especially in view of Mercier‘s trial position that he was guilty of negligently killing Sheena, were awkwardly framed, conveying an intent that was not entirely clear. Whether or not they were correctly understood by the prosecutor, we conclude on the basis of the record as a whole that review of this potential error is not necessary to prevent a “manifest
CONCLUSION
¶39 For the reasons discussed herein, we conclude the District Court erred by allowing Special Agent Johnsrud to testify, over Mercier‘s objection, via two-way video. We affirm Mercier‘s conviction for Deliberate Homicide because the error was harmless, and the prosecution‘s closing statements did not warrant plain error review. We reverse Mercier‘s conviction for Tampering with Physical Evidence because the State did not demonstrate the Confrontation Clause error was harmless.
¶40 Affirmed in part, reversed in part, and remanded for entry of an amended judgment.
/S/ JIM RICE
We concur:
/S/ BETH BAKER
Justice Ingrid Gustafson, specially concurring and dissenting.
¶41 I concur with the plurality Opinion (Opinion) that application of the analysis in Craig is appropriate to determine whether the District Court properly abrogated Mercier‘s right to face-to-face confrontation of the witness. I also agree the two-way video
/S/ INGRID GUSTAFSON
Justices Laurie McKinnon and James Jeremiah Shea join in the Special Concurrence and Dissent of Justice Gustafson.
/S/ LAURIE McKINNON
/S/ JAMES JEREMIAH SHEA
Chief Justice Mike McGrath, specially concurring.
¶42 While I agree with the result reached by the majority under the harmless error standard, I write separately to express my continued belief that modern two-way videoconferencing technology is a constitutionally-acceptable alternative to physical, in-person courtroom testimony, so long as the relevant indicia of reliability at the heart of the confrontation clause are present. See Duane, ¶¶ 29-30 (McGrath, C.J., concurring). The task of interpreting constitutional rights in light of modern technological developments remains centered on purpose and effect, as exemplified by the Fourth Amendment‘s continuing vitality with the advent of new surveillance technology and the First Amendment‘s ongoing role in protecting the free interchange of ideas transmitted through an ever-changing array of modern communication methods. Likewise, interpretation of the Sixth Amendment‘s right of confrontation must examine the practical effect of new technology on the interests protected by the Confrontation Clause. I believe that the majority Opinion disregards our precedent and needlessly tethers technological advancements—regardless of the constitutionally-significant distinctions among them—to a decades-old standard fashioned for the limited purpose of addressing one particular technology not at issue here.
¶43 “The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Craig, 497 U.S. at 845, 110 S. Ct. at 3163. To achieve this degree of reliability, the Confrontation Clause:
(1) insures that the witness will give his statements under oath—thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the greatest legal engine ever invented for the discovery of truth; and (3) permits the jury that is to decide the defendant‘s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.
Craig, 497 U.S. at 845-46, 110 S. Ct. at 3163 (quotations and alterations omitted). These factors—formality, cross-examination, and jury observation of witness demeanor—should guide our interpretation of the Confrontation Clause through a changing technological landscape.
¶44 Though it offered a rule for a very specific situation—testimony by a child victim via one-way video—Craig did not claim that this rule was the final word on any and all forms of technologically-mediated testimony. Rather, Craig emphasized the purpose-driven nature of Confrontation Clause interpretation, noting that it:
reflects a preference for face-to-face confrontation at trial, a preference that must occasionally give way to considerations of public policy and the necessities of the case. We have attempted to harmonize the goal of the Clause—placing limits on the kind of evidence that may be received against a defendant—with a societal interest in accurate factfinding, which may require consideration of out-of-court statements. We have accordingly interpreted the Confrontation Clause in a manner sensitive to its purposes and sensitive to the necessities of trial and the adversary process.
Craig, 497 U.S. at 849, 110 S. Ct. at 3165 (citations and quotations omitted, emphasis in original). An interpretation sensitive to the purposes of the Confrontation Clause demands a more nuanced approach than that of simply repurposing the rule Craig fashioned for one particular technology—one-way video—to all conceivable forms of communication. There is certainly nothing inherently troubling in technologically-aided communication, as
¶45 In fact, a fair reading of Duane—what I view as the controlling case on testimony via modern two-way video technology—demonstrates that this Court has already joined with those that have found Craig‘s rule for one-way video testimony inapplicable elsewhere. See United States v. Gigante, 166 F.3d 75, 81 (2d Cir. 1999); People v. Jemison, No. 157812, 2020 Mich. LEXIS 1076, at *14 (June 22, 2020). Contrary to the majority‘s reasoning, Duane did not cite to or purport to apply the Craig standard—necessity to further an important public policy in addition to adequate assurances of reliability—when addressing the issue of witness testimony via Skype. Compare Duane, ¶ 15 with Craig, 497 U.S. at 850, 110 S. Ct. at 3166. The Duane Court cited Craig merely for the uncontroversial proposition that the Confrontation Clause serves to “‘ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding‘” but does not guarantee criminal defendants “‘the absolute right to a face-to-face meeting with witnesses against them at trial.‘” Duane, ¶ 15 (quoting Craig, 497 U.S. at 844-45, 110 S. Ct. at 3163) (emphasis in original).
¶46 The closest the Duane Court arrived to applying Craig‘s necessity requirement was when it noted that requiring a witness to travel from California “would impose a prohibitive expense on the City and a significant burden” on the witness. Duane, ¶ 21. The majority here attempts to repurpose Duane as an application of the Craig test by turning “prohibitive expense” into a form of “necess[ity],” as required by Craig. However, expense and
¶47 Neither do Duane‘s facts support the majority‘s conclusion that Duane represents a Craig analysis and is distinguishable from the present case on the basis of heightened expense. The majority points to the fact that the three defendants initially charged in the Duane proceeding had elected to have separate trials, potentially tripling the travel costs of bringing the witness from California for the prosecution of each defendant. However, even assuming such tripling could conclusively establish the existence of a “prohibitive” expense, it was not material to the Duane holding, as the Duane Court explicitly noted that “[t]his appeal pertains only to Duane,” not the independent proceedings against the other two defendants. Duane, ¶ 5. These efforts to neither follow nor overrule Duane on the basis of such meager distinctions are unconvincing.
¶48 I believe that the proper reading of Duane is one in which this Court properly declined to extend the test articulated in Craig for one-way video to modern two-way videoconferencing technology. The one-way technology addressed in Craig possesses fewer indicia of reliability than the two-way, real time communication addressed here.
¶49 The distinction between “necess[ity]” in Craig and “impracticab[ility]” in Duane reflects the fundamental difference between the technologies described. The one-way video technology used in Craig was explicitly intended to eliminate the defendant‘s presence in order to protect psychologically-fragile child victims from the trauma of viewing their alleged abuser while giving testimony. See Craig, 497 U.S. at 857, 110 S. Ct. at 3170. As a result, the Craig Court was compelled to fashion a necessity requirement. In contrast, here, as in Duane, the modern two-way video in real time provides all of the benefits of a physical face-to-face communication, as was contemplated by the “face to face” provision of
¶50 Rather than purposefully obscuring a fundamental aspect of live testimony, the modern two-way telecommunications technology at issue here is intended to transmit substantially the same information as that shared by individuals physically present in the same room. As the COVID-19 pandemic has forced many of us to discover, such technology can now readily host a wide range of important interactions, including court proceedings such as the oral argument in this appeal. As technology continues to advance, it will be unsurprising if such tools eventually come to provide a virtual “face-to-face” sensory experience equally as rich as one premised on physical proximity. Mechanical application of the Craig standard is unhelpful in this dynamic technological context.
/S/ MIKE McGRATH
Justice Dirk Sandefur joins the Special Concurrence of Chief Justice Mike McGrath.
/S/ DIRK M. SANDEFUR