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Minnesota appeals court: Defendant's rights not violated by virtual testimony during pandemic

3January 2022

A ruling by the Minnesota Court of Appeals Monday provided greater clarity and guidance about a novel issue facing Minnesota courts as COVID-19 infections continue to increase across the state.

The court issued a decision Monday ruling that a Frazee, Minn., woman’s constitutional rights were not violated when a witness who was exposed to COVID-19 testified over Zoom at her trial instead of in-person. The court upheld her third-degree drug sale conviction.

The Sixth Amendment right to confront witnesses “expresses a strong preference” for in-person confrontation at trial, but “is not absolute,” Court of Appeals Judge Lucinda Jesson wrote regarding the case in Becker County District Court.

“Before us is a question of the boundaries of this bedrock right in the context of a global pandemic,” Jesson wrote. “…In addressing whether — as the district court concluded — remote testimony was necessary to further an important public policy, we begin with the policy at hand: protecting public health when in the throes of a global pandemic.”

It’s unclear how often the issue of witnesses testifying over Zoom or similar technology has arisen in Minnesota since the pandemic first led to widespread closures and restrictions in the courts in March 2020. The State Court Administrator’s Office and the Hennepin County Attorney’s Office said they don’t track such information.

The Dakota County Attorney’s Office said it has a pending case about virtual testimony before the Minnesota Court of Appeals. The case involves a man who was convicted in October 2020 of raping an 11-year-old girl at knifepoint.

In February 2021 a burglary and theft case was dismissed in Hennepin County District Court after the victims refused to testify in person at trial due to COVID-19 concerns. The prosecutor had requested that they be allowed to testify live over video technology from outside of the courthouse. The defense objected, and Hennepin County District Judge Regina Chu denied the prosecution’s request.

In filing a dismissal of all charges in the Hennepin County case, which is not related to Monday’s ruling, the Hennepin County Attorney’s Office noted that the cause was “unavailable critical witnesses due to the COVID-19 pandemic.”

Both victims had underlying health issues, prosecutors wrote, adding that the 80-year-old husband had undergone four heart valve replacements and the 79-year-old wife had heart conditions.

“They have been advised by doctors that they are in high risk categories for serious illness or death if they contract COVID-19,” prosecutors wrote. “…they do not feel safe coming to the government center during the pandemic and without being vaccinated.”

The suspect in the case allegedly broke into the couple’s Minnetonka home while running from the police, who were looking for him in connection with multiple car break-ins, according to court documents. He allegedly grabbed the woman, put his hand over her mouth and said he had a gun. He was accused of stealing the couple’s jewelry, cash and credit cards before fleeing in the woman’s car.

The Court of Appeals ruled Monday that the pandemic’s existence alone was not enough basis to merit virtual testimony — prosecutors have to show that virtual testimony serves “an important public policy.”

“Our decision is in line with the majority of courts to consider this question, in the pandemic context, which have required the state to show that the testimony of a particular witness must be remote in order to serve an important public policy, rather than allowing the state to rest on the general existence of the pandemic,” the court wrote.

In the Becker County case at the heart of Monday’s ruling, Kim M. Tate, was convicted on Nov. 17, 2020 of selling methamphetamine to a confidential informant working with police. Four days before Tate’s trial an officer who worked on the case was exposed to someone who tested positive for COVID-19. The officer was instructed to quarantine himself.

Prosecutors requested that the officer testify over Zoom. Tate’s defense objected, citing the “Confrontation Clause” of the Sixth Amendment. The presiding judge ruled in the prosecution’s favor.

The Court of Appeals wrote that the only time the U.S. Supreme Court addressed the “Confrontation Clause” and video testimony, it ruled that in-person testimony was not always guaranteed.

In Tate’s case, the Court of Appeals wrote, courtroom practices were impacted by pandemic-related protocols set for the state by Gov. Tim Walz and set for the courts by Minnesota Chief Justice Lori Skjerven Gildea. A large screen was used for the officer’s testimony, there appeared to be no technical problems and prosecutors successfully showed that he could not testify in person without “risking the health and safety of jurors, court personnel, and all those with whom he would come into contact in the courthouse,” the court said.

Jesson noted that the Court of Appeals was also “mindful that in November 2020, the virus-infection rates were high.”

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