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holding that saving costs is insufficient justification to extend Craig
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Docket No. 157812 Calendar No. 3
06-22-2020
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arthur Larome JEMISON, Defendant-Appellant.
Kym L. Worthy, Prosecuting Attorney, Jason W. Williams, Chief of Research, Training, and Appeals, and Amy M. Somers, Assistant Prosecuting Attorney, for the people. State Appellate Defender (by Kristin E. LaVoy) for defendant. Richard D. Friedman in support of defendant, Amicus Curiae. Michigan Innocence Clinic (by David A. Moran, Imran J. Syed, and Megan Richardson ) for Julie Baumer, Amici Curiae
Kym L. Worthy, Prosecuting Attorney, Jason W. Williams, Chief of Research, Training, and Appeals, and Amy M. Somers, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Kristin E. LaVoy) for defendant.
Richard D. Friedman in support of defendant, Amicus Curiae.
Michigan Innocence Clinic (by David A. Moran, Imran J. Syed, and Megan Richardson ) for Julie Baumer, Amici Curiae
BEFORE THE ENTIRE BENCH (except Viviano, J.)
McCormack, C.J. The Sixth Amendment of the United States Constitution and Article I, § 20 of the Michigan Constitution guarantee criminal defendants the right to confront the witnesses against them. In this case, we consider whether a forensic analyst's two-way, interactive video testimony violated the defendant's Confrontation Clause rights.
The Court of Appeals held that the video testimony satisfied the constitutional requirements of face-to-face confrontation. But the Court relied only on precedent that predated the United States Supreme Court's decision in Crawford v. Washington , 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), which transformed the Court's approach to confrontation rights. See People v. Pesquera , 244 Mich. App. 305, 309, 625 N.W.2d 407 (2001), citing Maryland v. Craig , 497 U.S. 836, 845-846, 851, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990) (holding that the Confrontation Clause did not categorically prohibit child witnesses from testifying outside the defendant's physical presence by one-way closed circuit television where reliability was otherwise supported).
For almost 25 years before Crawford , reliability was the touchstone of the Court's Confrontation Clause doctrine. In Ohio v. Roberts , 448 U.S. 56, 66, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), the Court held that the Confrontation Clause is satisfied even if a hearsay declarant is not present for cross-examination at trial as long as the statement bears adequate "indicia of reliability." Citing Roberts , the Court held in Craig that a defendant's right to confront a child witness may be satisfied absent a face-to-face encounter when necessary to advance an important public policy and when the testimony is reliable enough. Craig , 497 U.S. at 850, 110 S.Ct. 3157, citing Roberts , 448 U.S. at 64, 100 S.Ct. 2531. But in Crawford , the Court overruled Roberts and shifted from a reliability focus to a bright-line rule requiring a face-to-face encounter for testimonial evidence. Crawford , 541 U.S. at 61-63, 68-69, 124 S.Ct. 1354.
Crawford did not specifically overrule Craig , but it took out its legs. To reconcile Craig and Crawford , we read Craig ’s holding according to its narrow facts.
In Craig , the Court held that in child abuse cases, as long as a trial court made a case-specific showing of necessity that a child witness needs special protection, as required by a Maryland statute, the Confrontation Clause did not prohibit the court from allowing the child witness to testify using one-way video. Craig , 497 U.S. at 856, 860, 110 S.Ct. 3157.
Crawford requires face-to-face cross-examination for testimonial evidence unless a witness is unavailable and the defendant had a prior opportunity for cross-examination. Crawford , 541 U.S. at 68, 124 S.Ct. 1354. Here, admitting the prosecution witness's video testimony over the defendant's objection violated the defendant's state and federal constitutional rights to confrontation. We reverse the judgment of the Court of Appeals and remand the case to that Court for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
In September 1996, the victim was raped and robbed while waiting in a parked car for an acquaintance. Later that day, she filed a police report and went to a hospital for a forensic examination and the collection of evidence known as a "rape kit." She did not know her assailant's identity.
The rape kit was not analyzed until 2015. The samples were sent to Sorensen Laboratory in Utah for serological processing and further DNA testing. Sorensen analyst Derek Cutler concluded that the vaginal swab from the rape kit contained a mixture of DNA profiles from at least two contributors, at least one of which was male and suitable for comparison. Sorenson forwarded the report to the Michigan State Police (MSP) Forensic Science Division, which analyzed and compared the sample to DNA data stored in the Combined DNA Index System (CODIS) database. The MSP identified an association between the defendant's DNA and the male donor identified by the Sorensen report. The defendant was charged with two counts of first-degree criminal sexual conduct, MCL 750.520b.
The 1996 rape kit remained in the Detroit Police Department's property section until it was discovered in 2014 and tested in 2015.
Over the defendant's objection, the circuit court granted the prosecution's pretrial motion to allow Cutler to testify by video. Before a different judge who presided over the trial, the defendant renewed his objection to Cutler's video testimony. But the trial court allowed it.
Cutler testified that it is "normal within the scientific community to have multiple people do work on these [rape] kits" and acknowledged that he "did not actually see the rape kit." Instead, he "[went] off the notes that [we]re done by other serologists and technicians who are competent in their testing." He analyzed those other serologists’ notes and concluded that there were at least two contributors to the DNA on the vaginal swab—an unknown male donor and a second donor whose DNA was present at such a low level that it was not suitable for comparison. Catherine Maggert, the MSP analyst who used Cutler's report for her analysis, testified that when she compared that report's unknown male donor to the CODIS database, there was an association linking the defendant to the unknown male donor.
Upon learning that Cutler never saw the rape kit but had interpreted other analysts’ notes, the defendant again objected to this specific part of Cutler's testimony, arguing that it was inadmissible hearsay. (The defendant apparently did not also object to his inability to confront the witnesses who had conducted the analysis.) The trial court overruled the objection, and the defendant did not appeal that ruling.
The jury convicted the defendant of one count of first-degree criminal sexual conduct and acquitted him of the other count. He was sentenced to serve 22 to 40 years in prison. He appealed, in part arguing that he was denied his right of confrontation when the trial court allowed Cutler's video testimony, rather than requiring his presence in the courtroom. The Court of Appeals affirmed. People v. Jemison , unpublished per curiam opinion of the Court of Appeals, issued April 12, 2018 (Docket No. 334024), 2018 WL 1783089. The panel relied on Pesquera , an opinion predating Crawford , in which the Court of Appeals held that a defendant's confrontation rights were adequately protected when a trial court allowed videotaped deposition testimony from child witnesses accusing the defendant of criminal sexual conduct. Pesquera , 244 Mich. App. at 309, 625 N.W.2d 407. Pesquera relied on Craig for this holding. Citing Pesquera , the panel stated that the Confrontation Clause requires the following:
(1) a face-to-face-meeting of the defendant and the witnesses against him at trial; (2) the witnesses should be competent to testify and their testimony is to be given under oath or affirmation, thereby impressing upon them the seriousness of the matter; (3) the witnesses are subject
to cross-examination; and (4) the trier of fact is afforded the opportunity to observe the witnesses’ demeanor. [ Jemison , unpub. op. at 5, citing Pesquera , 244 Mich. App. at 309, 625 N.W.2d 407, which in turn cited Craig , 497 U.S. at 846, 851, 110 S.Ct. 3157.]
Working within this analytic framework, the panel noted that although the defendant "was not able to confront the witness in the traditional sense" when the expert testified using two-way, interactive video, the defendant was able to "observe the expert's responses and reactions in real time and [the defendant] took advantage of the opportunity to do so through cross-examination." Jemison , unpub. op. at 6. The court further noted that "[t]he jury was able to observe the expert as he responded." Id. The panel concluded that "[b]ecause the testimony met three of the Confrontation Clause criteria, and the trial court appropriately dispensed with the face-to-face requirement, defendant's right to confrontation was not violated." Id.
The panel also held that the trial court abused its discretion by allowing the witness's two-way, interactive video testimony over the defendant's objection because MCR 6.006(C) requires the parties to consent to the use of videoconferencing technology for trial testimony, but it found that error harmless. Id. at 5, 7.
The defendant filed an application for leave to appeal in this Court. We granted it and asked the parties to address "whether permitting an expert witness to testify by two-way interactive video, over the defendant's objection, denied the defendant his constitutional right to confront witnesses and, if so, whether this error was harmless." People v. Jemison , 503 Mich. 936, 936-937, 921 N.W.2d 335 (2019).
The prosecution argues that the defendant waived appellate review of this issue by failing to object in writing when it notified the defendant that it intended to admit Cutler's written report into evidence under MCR 6.202. In other words, the prosecution argues that a defendant's failure to comply with a court rule which governs the admissibility of an expert's report waives his constitutional right to confront the witness who authored the report. Merits aside, because the prosecution did not raise this argument before the Court of Appeals, we decline to address it. See People v. Walker , 504 Mich. 267, 276 n. 3, 934 N.W.2d 727 (2019), citing People v. McGraw , 484 Mich. 120, 131 n. 36, 771 N.W.2d 655 (2009).
II. STANDARD OF REVIEW
Whether a defendant was denied his right to confront a witness is a constitutional question that we review de novo. People v. Bruner , 501 Mich. 220, 226, 912 N.W.2d 514 (2018). When we review a question de novo, we review the legal issue independently without deference to the lower court. Id.
III. ANALYSIS
The Sixth Amendment of the United States Constitution provides, in part, that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...." See also Const. 1963, art. 1, § 20. Before Crawford , the United States Supreme Court's Confrontation Clause jurisprudence was built around the reliability of the challenged evidence. In Roberts , the Court held that the Confrontation Clause was not a barrier for admission if the challenged testimony bore adequate "indicia of reliability." Roberts , 448 U.S. at 66, 100 S.Ct. 2531. Crawford overruled Roberts and transformed the Court's approach to the Confrontation Clause from a case-by-case reliability-balancing test to a categorical rule for protected evidence.
Craig was decided before Crawford and therefore under the Roberts reliability framework. In Craig , the Court held that a defendant's right to confront a child witness may be satisfied by one-way video testimony instead of a physical, face-to-face confrontation, if the testimony is reliable. Craig , 497 U.S. at 850, 110 S.Ct. 3157, citing Roberts , 448 U.S. at 64, 100 S.Ct. 2531. The Court identified four considerations that courts should weigh to determine reliability—physical presence, whether the testimony was taken under oath, the defendant's ability to cross-examine, and whether the jury could observe the witness's demeanor. See Craig , 497 U.S. at 846, 110 S.Ct. 3157. And having weighed those factors and determined that the testimony was reliable, the Court held that because the evidence was reliable, "protect[ing] a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child's ability to communicate," justified permitting the witness's one-way video testimony. Id. at 857, 110 S.Ct. 3157.
Justice Scalia dissented. He rejected the majority's reliability-balancing test "because the Confrontation Clause does not guarantee reliable evidence; it guarantees specific trial procedures that were thought to assure reliable evidence, undeniably among which was ‘face-to-face’ confrontation." Id. at 862, 110 S.Ct. 3157 (Scalia, J., dissenting). And he criticized the Court's balancing test as inconsistent with the constitutional text. Id. at 870, 110 S.Ct. 3157 ("The Court today has applied ‘interest-balancing’ analysis where the text of the Constitution simply does not permit it.").
Fourteen years passed between Craig and Crawford , and things changed. In Crawford , Justice Scalia wrote for the majority and his dissent from Craig became the Court's view, transforming its approach to the Confrontation Clause. Concluding that Roberts had "replac[ed] categorical constitutional guarantees with open-ended balancing tests," Crawford , 541 U.S. at 67-68, 124 S.Ct. 1354, the Court shifted gears; balancing no longer had a role. Instead, the defendant's confrontation right is absolute for all "testimonial" evidence unless a witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Id. at 68, 124 S.Ct. 1354.
The Court emphasized the importance of face-to-face testimony to the confrontation right, citing historical examples that illustrated how face-to-face testimony was critical to its enforcement. Id. at 43-45, 124 S.Ct. 1354 (describing, for example, how a trial court refused to call Sir Walter Raleigh's accuser to testify, over Raleigh's pleading, "Call my accuser before my face," which led to both Raleigh's death sentence and then to English law developing the confrontation right as an important limit on government abuses against criminal defendants) (citation omitted). The Court explained that a reliability-balancing test would not have "provid[ed] any meaningful protection" in these cases. Id. at 68, 124 S.Ct. 1354. And so the Court restored face-to-face testimony as a fundamental element of the confrontation right. Id. at 57, 124 S.Ct. 1354, quoting Mattox v. United States , 156 U.S. 237, 244, 15 S. Ct. 337, 39 L. Ed. 409 (1895) ; see also California v. Green , 399 U.S. 149, 157, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970) (explaining that "it is this literal right to ‘confront’ the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause"). The reliability-balancing approach established by the Court in Roberts was the basis for its rule in Craig allowing public-policy considerations to override the need for face-to-face testimony if the evidence is reliable enough. Craig , 497 U.S. at 850, 110 S.Ct. 3157. When Crawford overruled Roberts and did away with reliability balancing, it put Craig ’s reliability-focused rule into doubt. We are not the first court to notice. See United States v. Carter , 907 F.3d 1199, 1206 n. 3 (C.A. 9, 2018) (recognizing that "[t]he vitality of Craig itself is questionable in light of the Supreme Court's later decision in Crawford "); see also State v. Thomas , ––– N.M. ––––, 2016-NMSC-024, 376 P.3d 184, 193 (2016) (noting that " Crawford may call into question the prior holding in Craig to the extent that Craig relied on the reliability of the video testimony"). But the Supreme Court did not specifically overrule Craig , and, of course, we leave to that Court "the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/American Express, Inc. , 490 U.S. 477, 484, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (1989). The Court of Appeals extended Craig ’s rule here for two reasons. See Jemison , unpub. op. at 5-6. First, because Cutler was an expert witness, the panel believed that his testimony should not raise the same confrontation-right concerns as the testimony of a fact witness. Id. Put differently, the Court of Appeals reasoned that Cutler's expert testimony does not present the same credibility concerns as nonexpert witnesses, effectively placing him outside the confrontation right. The United States Supreme Court, however, disagrees: expert witnesses called by the prosecution are witnesses against the defendant. Melendez-Diaz v. Massachusetts , 557 U.S. 305, 313-314, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009) ("The text of the [Sixth] Amendment contemplates two classes of witnesses—those against the defendant and those in his favor. The prosecution must produce the former; the defendant may call the latter. Contrary to respondent's assertion, there is not a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation.").
While the Court's early confrontation jurisprudence included both the right to cross-examine and the right to have the witness brought to face the defendant, face-to-face testimony has even deeper historical roots: it was a critical feature of ancient Roman court systems, while the cross-examination right was a seventeenth-century innovation. See Herrmann & Speer, Facing the Accuser: Ancient and Medieval Precursors of the Confrontation Clause , 34 Va. J. Int'l L. 481 (1994) ; see also Coy v. Iowa , 487 U.S. 1012, 1015-1016, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988) ("The Roman Governor Festus, discussing the proper treatment of his prisoner, Paul, stated: ‘It is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face to face, and has been given a chance to defend himself against the charges.’ Acts 25:16.").
The Court previewed this aspect of its Crawford holding in 2002, when it refused to pass along to Congress a proposed amendment to the Federal Rules of Criminal Procedure that would have allowed a trial witness to give testimony by video. In an accompanying statement, Justice Scalia remarked that the proposed rule was "of dubious validity under the Confrontation Clause." Order Amending the Federal Rules of Criminal Procedure, 535 U.S. 1159, 1159 (2002) (statement of Scalia, J.). As he put it, "Virtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones." Id. at 1160.
Second, the Court of Appeals believed that cost-savings was a sufficient reason to extend Craig ’s rule. Jemison , unpub. op. at 5. We disagree; expense is not a justification for a constitutional shortcut. This is especially true where the prosecution elects to use an out-of-state laboratory for its analysis. Such a rule would have perverse consequences: the prosecution could deprive a criminal defendant of confrontation rights by using out-of-state analysts to save money and then cite cost-savings as a justification for not providing face-to-face testimony. We will apply Craig only to the specific facts it decided: a child victim may testify against the accused by means of one-way video (or a similar Craig -type process) when the trial court finds, consistently with statutory authorization and through a case-specific showing of necessity, that the child needs special protection. Craig , 497 U.S. at 860, 110 S.Ct. 3157. The witness here was neither the victim nor a child; Crawford thus provides the applicable rule.
Courts applying Craig ’s rule have almost universally concluded that expense is not a sufficient reason for sacrificing face-to-face testimony. See, e.g., State v. Rogerson , 855 N.W.2d 495 (Iowa, 2014) (the state's justification of distance, cost, and inefficiency could not overcome a defendant's confrontation rights); Lipsitz v. State , 135 Nev. 131, 442 P. 3d 138 (2019) (it was necessary to use two-way video technology for a witness who was medically unavailable due to being admitted to an out-of-state residential treatment center); Thomas , 376 P.3d at 195 (a defendant's confrontation rights were violated when the trial court permitted an out-of-state forensic analyst to testify using two-way video in order to avoid inconveniencing the witness); Bush v. State , 193 P.3d 203, 214-216, 2008 WY 108 (2008) (no confrontation violation when a witness testified over two-way video when his physician warned against traveling and he gave testimony after being sworn in by a district court judge). Only one state's highest court appears to have adopted a test allowing for two-way video testimony in response to impossibility or impracticality because of distance or expense. Missoula v. Duane , 380 Mont. 290, 2015 MT 232, 355 P.3d 729, 731, 734 (2015). But the defendant was charged with a misdemeanor and the out-of-state witness would have had to travel for three separate trials, which the Montana Supreme Court found would have imposed a significant burden on the witness and a significant expense on the city. Id.
Even if we were to apply Craig ’s rule, our result would be the same: mere convenience, efficiency, and cost-savings interests are not important enough public-policy considerations to dispense with a defendant's constitutional right to face-to-face confrontation.
The Court of Appeals answered the wrong question when it held that "the trial court appropriately dispensed with the face-to-face requirement." Jemison , unpub. op. at 6. As Crawford makes clear, for testimonial evidence, that requirement may be dispensed with only when the witness is unavailable and the defendant had a prior chance to cross-examine the witness. The parties do not dispute that Cutler's evidence was testimonial. And we agree—Cutler's evidence was, after all, testimony. See Crawford , 541 U.S. at 51-52, 124 S.Ct. 1354. The defendant had a right to face-to-face cross-examination; Cutler was available, and the defendant did not have a prior chance to cross-examine him. See id. The defendant's state and federal constitutional rights to confrontation were violated by the admission of Cutler's two-way, interactive video testimony.
Perhaps because the defendant did not cite Crawford in his briefing in the Court of Appeals, or perhaps because this Court has cited Craig without the need to consider Crawford ’s sea change to Confrontation Clause jurisprudence, see People v. Buie , 491 Mich. 294, 304-305, 817 N.W.2d 33 (2012), the Court of Appeals did not address Crawford . It cited only Buie , in which this Court quoted Craig . See Jemison , unpub. op. at 5, quoting Buie , 491 Mich. at 304, 817 N.W.2d 33. While Buie was decided after Crawford , it does not appear that Crawford was raised in that case either; there was, in fact, little need for a Confrontation Clause analysis in Buie given that we held that the defendant through his counsel had waived his right to confrontation. Buie , 491 Mich. at 317-318, 817 N.W.2d 33.
But had there been no waiver, Crawford would have controlled. Craig ’s language that "the face-to-face confrontation requirement is not absolute" and that the preference for face-to-face confrontations "must occasionally give way to considerations of public policy and the necessities of the case," Craig , 497 U.S. at 849-850, 110 S.Ct. 3157, citing Mattox , 156 U.S. at 243, 15 S.Ct. 337 ; see also Jemison, unpub. op. at 5 (quotation marks and citations omitted), envisions the possibility of open-ended exceptions to the confrontation requirement that has since been rejected in Crawford . See Crawford , 541 U.S. at 54, 124 S.Ct. 1354 ("The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts.").
In a footnote in its supplemental brief, the prosecution suggests that Cutler's testimony could be considered to be nontestimonial because of the plurality decision in Williams v. Illinois , 567 U.S. 50, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012). This footnote notwithstanding, the prosecution has consistently conceded that Cutler's testimony is testimonial. But even if it had not so conceded, we are not persuaded by the prosecution's alternative argument presented in the footnote. Williams decided whether out-of-court statements made solely to explain the assumptions used to form an expert opinion were beyond the consideration of the Confrontation Clause. Id. at 58, 132 S. Ct. 2221 (opinion of Alito, J.). Cutler testified, just not face-to-face.
We agree with the Court of Appeals that the trial court's decision to allow the two-way, interactive video testimony also violated MCR 6.006(C). This Court has never addressed whether a violation of MCR 6.006(C) can be harmless, and if so, the appropriate standard to apply to determine whether it is harmless. See, e.g., Buie , 491 Mich. at 320, 817 N.W.2d 33 (finding no violation of MCR 6.006(C) ). The Court of Appeals appeared to treat the MCR 6.006(C) error as interchangeable with a Confrontation Clause violation and reviewed it for whether it was harmless beyond a reasonable doubt. We vacate its analysis on that point. On remand, the Court of Appeals should also consider (1) whether the violation of MCR 6.006(C) is susceptible to harmless-error review; (2) if so, what standard applies in determining whether the error was harmless; and (3) whether the error was harmless in this case.
IV. CONCLUSION
In allowing this witness's two-way, interactive video testimony over the defendant's objection, the trial court violated the defendant's Confrontation Clause rights. We reverse the judgment of the Court of Appeals and remand to that Court for further proceedings consistent with this opinion, including determining whether that violation was harmless beyond a reasonable doubt. Delaware v. Van Arsdall , 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986).
Markman, Zahra, Bernstein, Clement, and Cavanagh, JJ., concurred with McCormack, C.J.
Viviano, J., did not participate due to a familial relationship with a circuit court judge involved in this case.