The Volokh Conspiracy
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The Constitutional Right to Confront Witnesses Against You, When They've Been Exposed to COVID
From the Minnesota Court of Appeals' majority opinion yesterday in State v. Trifiletti, written by Judge Randall Slieter and joined by Judge Matthew Johnson; the opinion is long, but here's the legal heart of the matter:
Did the state prove that M.W.'s [a witness's] possible exposure to COVID-19 and fully-dissipated-cough symptoms, which prevented her from testifying in person [at defendant's April 2021 retrial], render her unavailable [so that her past testimony at an earlier trial could be introduced, or alternative that she could be allowed to testify by video, without violating a criminal defendant's Confrontation Clause rights]?
M.W.'s possible exposure to COVID-19 without any symptoms of illness that prevents her from providing live, in-person testimony, does not satisfy any of the recognized circumstances rendering a witness unavailable. Therefore, she was available to provide live, in-person testimony. M.W. was willing to testify, she was physically and mentally able to testify, she was within the jurisdiction, and she remained in contact with the prosecutor.
The reason provided by the district court that M.W. was unavailable was its reasonable public-health concern for those in the courtroom who could potentially have been exposed to COVID-19. Our extensive review of the caselaw related to witness unavailability reveals no such public-health basis for admitting an unconfronted, testimonial statement against a criminal defendant. The district court erred by allowing the state to read her prior testimony into evidence. Therefore, Trifiletti's Sixth Amendment right to confront the witnesses against him was violated….
Even if the law informed us that a witness is unavailable because of a possible exposure to COVID-19 and the resulting potential public-health risk to those in the courtroom if she were to testify in-person, the state did not meet its burden of showing that M.W. posed such a risk….
[T]here are no facts in the record which indicate that M.W.'s contact with her sister, who six days after M.W.'s contact tested positive for COVID-19, met this MDH definition of "close contact." This absence of evidence related to M.W.'s possible exposure reflects an additional failure by the state to demonstrate that M.W. was a public-health risk if she was to testify in person, especially given the precautions the district court had already taken to conduct the trial safely during the pandemic.
In response to the COVID-19 pandemic, the chief justice imposed restrictions on in-person criminal trials that remained effective during Trifiletti's trial. The district court, in compliance with the chief justice's order, modified its courtroom so that everyone, including the jurors, were at least six feet apart and ordered everyone to be masked….
And Dr. Ogawa, a Ramsey County public-health official, indicated to the district court that it would be "reasonable" for M.W. to testify if she remained masked, notwithstanding her possible exposure to COVID-19. This supports the conclusion that M.W. was not a public-health risk if she testified in person. And additional review of the record indicates the state did not provide a preponderance of evidence that M.W. was unavailable due to a public-health risk….
We emphasize that the district court's decision was based on the possibility that M.W. had contracted the virus from someone with whom she may have had "close contact," and the possibility, if M.W. did actually contract the virus, that others in the courtroom and courthouse would be exposed to the virus if she were to testify in person. And there is nothing in the record indicating that M.W. took a COVID-19 test to confirm she had the virus and, instead, there is evidence that her doctor suggested she not take a test.
And though the district court emphasized that M.W. "should be in quarantine," the state presented no evidence that M.W. was instructed to quarantine, or that she would have been in quarantine when she was to provide testimony. Further, we do not believe that her presence in quarantine would change our analysis because there was no medical information to identify and confirm M.W.'s health condition. Based on our de novo review, the speculative public-health risk that M.W. might pose if she was to testify in person fails to outweigh Trifiletti's concrete Confrontation Clause right to confront his accusers.
We add that these circumstances did not limit the district court to a binary choice between live, remote testimony and reading M.W.'s former testimony…. [C]ourts consider a continuance [i.e., a delay of the trial] as the presumptive remedy for a witness's temporary unavailability….
We acknowledge the very appropriate concern that the district court had for the well-being of all those in the courtroom during this trial, which was conducted during the COVID-19 pandemic. But "[g]overnment is not free to disregard the [Constitution] in times of crisis." However appropriate and reasonable the district court's concern, that concern must give way to Trifiletti's constitutional right to confront the witnesses against him.
In sum, assuming the law informed us that a witness's possible exposure to COVID-19 does render her unavailable, the state failed to prove by a preponderance of the evidence that M.W.'s in-person testimony posed a public-health risk. Therefore, in this case, the witness was not unavailable. Presenting her testimony from the first trial violated Trifiletti's constitutional right to confront the witness….
And an excerpt from Judge Carol Hooten's dissent:
The district court's findings justify dispensing with face-to-face confrontation under the public-health exception that our court recognized in [a past case]. The district court found that the witness, M.W., had been "exposed in a close contact way with" a person who later "tested positive for COVID" on the eve of trial, and that M.W. and her son later developed symptoms consistent with COVID-19, such as a cough and congestion. The district court also found that another witness, S.S., was instructed by a healthcare professional to quarantine for ten days after encountering M.W.'s son. The district court considered the reported COVID-19 statistics and the publicly available guidance from the state's health department and concluded that M.W. should be in quarantine. It recognized that a person may remain asymptomatic for up to 14 days after encountering a COVID-positive person before becoming sick and could spread the virus without ever experiencing symptoms.
The district court's cautious conclusion that M.W. should not report to the courthouse reflects its responsibility to everyone in the courtroom—especially to the jurors, who are compelled by law to attend trial. The district court's finding that M.W. is particularly susceptible to the virus and its conclusion that she is unavailable conforms to our decision in Tate. I would not disregard the district court's reasoned judgment or conclude that the district court clearly erred in its findings….
Congratulations to Anders J. Erickson, Assistant Public Defender, who represented the defendant.
