Testimony Over Video Does Not Violate Confrontation Clause

Recently, the Minnesota Court of Appeals addressed whether a police officer testifying via video violated a defendant’s right to confrontation in State v. Tate. The court ultimately said it did not violate the defendant’s constitutional rights and allowed the testimony to be admitted into evidence.

During the COVID-19 pandemic, many court hearings moved to video hearings using Zoom. Courthouses can often be crowded and for public health and safety reasons, conducting hearings over video makes sense. In criminal cases, many of the preliminary hearings, such as first appearances, pre-trial hearings, and settlement conferences can all be conducted sufficiently using video. There are some advantages to having those hearings in person. A lot of court staff and attorneys would still prefer to have all hearings in person. But, the pandemic put us into this Zoom world of court and we adjust.

There are some hearings, however, that have a clear disadvantage when conducted over video. Any hearing where someone testifies and is subject to cross examination is a hearing most attorneys would rather conduct in person. Lawyers prefer to evaluate the credibility of a witness by looking them in the eye inside an actual courtroom. Additionally, presenting exhibits is much easier in person and you do not have to worry as much about potential technical difficulties when the hearing is in person.

Importantly, in criminal cases, the Sixth Amendment includes the Confrontation Clause, which provides that in all criminal prosecutions, the accused shall enjoy the right to confront the witnesses against him. This case evaluated whether the accused (defendant) is still able to confront the police officer witness over two-way, live, video. The peace officer in this case was exposed to a person who tested positive for COVID-19 four days prior to the trial beginning. The prosecutor asked the court to allow the officer to testify over video. The defense objected based on a violation of the Confrontation Clause, but the judge allowed the testimony to go forward over video.

In its reasoning, the Minnesota Court of Appeals stated the Confrontation Clause was not violated by allowing the officer to testify over Zoom. The court considered whether denying in-person confrontation was necessary to further an important public policy and it examined the reliability of the testimony presented. The court determined that the necessity and reliability prongs were met by the prosecution and affirmed the district court’s decision.

This case may end up in front of the Minnesota Supreme Court, which could change the direction of how district court’s approach this issue. But in the meantime, district courts may very well allow video testimony for witnesses during a trial if there are COVID-19 concerns with a particular witness.

Robert H. Ambrose is a criminal defense attorney and DWI lawyer in Washington County, Minnesota. Super Lawyers named him a Rising Star for the past six years; and the National Trial Lawyer’s Organization named him a Top 40 Under 40 Trial Lawyer the past seven years. He is an adjunct professor at the University of Minnesota Law School. DWI Attorney Woodbury MN; Criminal Defense Lawyer Washington County MN; and DUI Lawyer Minnesota.