Does Testifying Over Zoom Violate a Defendant’s Right to Confrontation: State v. Tate
Recently, in State v. Tate, the Minnesota Supreme Court considered whether a defendant’s Sixth Amendment right under the U.S. Constitution is violated by allowing a prosecution’s witness to testify via Zoom rather than in person due to COVID-19 exposure. A criminal defendant accused of a crime and set to stand trial is afforded the right to confront their accusers. However, this right is not absolute for the confrontation to be in person.
Here, the defendant was charged with third-degree sale of a sale-controlled substance after a controlled buy was conducted with a confidential information (CI). Three investigators were listening to the controlled buy while it occurred due to the listening and recording device getting to the CI. As a result, all three investigators were set to testify at the trial of Tate; until the lead investigator was exposed to COVID-19. The State requested that the lead investigator be allowed to testify via Zoom a two-way remote video conferencing.
The Court considered whether this was necessary under the given circumstances of the COVID-19 pandemic for a witness to be allowed to testify via Zoom rather than in-person. The Court considered the facts surrounding the number of cases, the number of hospitalizations, the number of deaths, the emergency executive order, the lack of places open, and the danger to the people in the courtroom. The Court emphasized that the decision was made to ensure the safety of the other people involved in the trial; however, Tate was not asking for the lead investigator to testify in court during his quarantining period rather she asked for a two-week continuance.
The Court stated that the continuance was not a valid option considering the uncertainty of the COVID-19 pandemic. The Court was worried about the lead investigator becoming more ill and needing to be hospitalized or other witnesses being exposed or testing positive resulting in their inability to testify. Also, the Court did point out in the reasoning that this case had already had four continuances granted in this matter and that the jurors were ready to proceed. Despite this available alternative the Court stated it was necessary for the case to proceed to trial on the set date with the witness appearing and testifying via zoom.
Defense counsel had valid concerns about the jury’s ability to view the witness’s body language and to be able to judge the creditability of the witness’s testimony. Tate also had concerns about the witness’s availability to have impermissible material and the court could not monitor the witness. Despite these concerns, the Court found that the circumstances of the case were enough to meet the necessity of not needing to testify in person. The trial court’s actions of requiring the witness to swear he would not use impermissible materials and was under oath was enough of a safeguard for the court. The other concern of Tate was addressed by the Judge giving a cautionary instruction to inform the jury that although the witness was on Zoom the members of the jury were to evaluate the person’s body language as if they were in person.
This ruling possibly opens the door for the court to allow a person to testify on zoom for other medical issues that cause a person to be unavailable to appear in person for a trial. The court has only found this necessary in cases of child abuse victims not having to testify in front of their abuser. This addition to not having a right to confront an accuser under this circumstance could open the door to move expectations for in-person testimony.
Robert H. Ambrose is a criminal defense attorney and DWI lawyer in Minnesota. Minnesota. Super Lawyers named him Super Lawyer the past two years and a Rising Star in the six years prior. He is an adjunct professor at the University of Minnesota Law School and has been for the past six years. Criminal Defense Attorney Woodbury MN, Criminal Lawyer St. Paul MN, and Criminal Appeals Attorney Minnesota.