Supreme Court of Montana Finds Special Agent’s Two-Way Videoconferencing Testimony Violated the Confrontation Clause
Pursuant to the Confrontation Clause,
In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.
Courts, however, have interpreted the Supreme Court’s opinion in Maryland v. Craig, as creating an exception to the Confrontation Clause if two prongs are satisfied:
it must first be shown that denial of physical face-to-face confrontation is necessary to further an important public policy….The second prong of the Craig analysis requires the trial court to determine that reliability of the testimony is otherwise assured. State v. Mercier, 2021 WL 248487 (Mont. 2021).
So, was this two prong test satisfied in Mercier?
In Mercier, Trevor Mercier was charged with Criminal Mischief,Deliberate Homicide, and Tampering with Physical Evidence (based on allegedly submerging the victim’s cell phone in a pot of greasy water in the kitchen sink).
Investigators removed [the victim]’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.
Thereafter,
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 what was contained on the device.” Then, Agent McCarvel testified regarding Johnsrud’s report of the phone’s contents, particularly, two time-stamped photographs retrieved from the phone.
On appeal, the Supreme Court of Montana found that this two-way videoconferencing testimony violated the Confrontation Clause, ruling as follows
The State emphasizes that, as articulated by the Supreme Court in Craig, “the Confrontation Clause 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.”…The State thus argues the use of the two-way video was permissible because, pursuant to the public policy of judicial economy, it was unreasonable to incur significant travel expenses and inconveniences for testimony deemed to be purely foundational. The District Court agreed, ruling under Duane that the “significant time and expense” required for Johnsrud to testify in-person outweighed any perceived diminution of Mercier’s confrontation right and the cross-examination’s efficacy. However, as noted by the Ninth Circuit Court of Appeals, quoting Justice Harlan, merely “avoiding added expense or inconvenience” is not sufficient, without more, to dispense with the preference for face-to-face testimony….Even if it were, “case-specific” findings demonstrating the necessity of video testimony were not entered here. We can draw only the conclusion from the record that video testimony was permitted for the stake of generalized judicial economy, with the District Court noting “it is commonplace in this court for expert witnesses[,] such as medical experts and crime and technicians, to testify in criminal cases” by two-way videoconferencing technology, and the State adding that “many Montana attorneys would have readily” stipulated to the foundation or permitted the video testimony. These statements may be correct, but one defendant’s waiver of constitutional right does not establish a precedent for waiver of the right by subsequent defendants, and neither does the practice of other attorneys. Although judicial economy may be an important public policy in other contexts, standing alone, it must yield to the constitutional rights of the accused.
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….
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.