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Mo. high court considers whether Zoom testimony is ‘face-to-face’ confrontation

The Missouri Supreme Court heard a case on Sept. 15 that could determine if a witness’ Zoom testimony violated the defendant’s rights to face-to-face confrontation and cross-examination.

Fourteen law professors submitted an amicus brief out of concern for what this case means for state and federal courts.

Eight of those professors work at Saint Louis University School of Law, including Professor of Law Chad Flanders, who wrote the brief in support of Rodney A. Smith’s case.

“In any event, the best reading of the relevant constitutional provisions (both state and federal) is that face-to-face confrontation is the default, and virtual confrontation the carefully limited exception,” Flanders wrote. “If courts permit video testimony in some contexts, even in criminal contexts, there is good reason (given the uncertainty of the technology) to put limits on when remote testimony can be used, and how it should be used.”

Two professors from Washington University in St. Louis also were included in the brief. But the case’s interest reached beyond Missouri. Law schools from Notre Dame University, University of South Carolina and George Washington University each had a professor listed as an amici.

The professors recommended that the court at the very least should provide guidance that an in-person cross-examination should occur before a remote testimony takes place.

Smith was charged with having sex with his girlfriend’s 16-year-old daughter, who was 15 years old when the abuse began. For a 2019 trial, prosecutors sought to include testimony of the lab technicians who had processed DNA testing from the 16-year-old’s sexual assault examination.

Because the subpoena for the technician Eric Hall initially was sent to the police department while he was on paternity leave, and it was against the department’s policy to let him testify while on leave, the prosecutors initially reported to the St. Louis Circuit Court that Hall was unavailable. Hall later volunteered to testify via Zoom.

St. Louis Circuit Judge Clinton R. Wright later allowed Hall to testify via a live two-way Zoom video call shown on a television in the courtroom, though Smith objected. According to an earlier ruling in the Court of Appeals Eastern District, Hall’s testimony was the only testimony at trial that linked Smith’s swabs to DNA found in the sexual assault examination.

Smith’s motion for a new trial was denied, and Smith appealed on grounds that the court denied his right to confront witnesses face to face with the defendant and the jury, and he also was not able to cross-examine Hall in person prior to his testimony.

After finding Smith guilty on two counts of statutory rape, the Missouri Court of Appeals Eastern District transferred the case to the Missouri Supreme Court on April 27 to present the Zoom conference issue at the state level.

Before the Missouri Supreme Court, public defender Nina McDonnell said that the size of the TV used in the Zoom conference was not included in the findings of fact, and that this is another concern because courtrooms have varying sizes available.

“We don’t know how big the screens are. If you go to the different circuits throughout Missouri, St. Louis County might be wildly different from what may be found in St. Francois County,” McDonnell said.

She said that important elements of confrontation like physical appearance were missing because of the choice of a Zoom call. McDonnell also said that the Missouri Supreme Court previously has held that common law exceptions were the only reason that a witness could not testify in court in front of the accused.

Chief Justice Paul C. Wilson did not seem to agree.

“Unless the 19th Century version of Zoom was available, I can’t imagine that you can fairly attribute to that ruling that we were saying that wasn’t presence for purposes of confrontation,” Wilson said. “Either we’re writing on a blank slate or we’re not.”

McDonnell also referenced the last year and a half where court proceedings were fully remote.

“It seems obvious that we wanted to get back in court because something is lost,” she said. “Otherwise why have these grand buildings? Why have the splendor and the solemnity of the proceeding happen in court? I mean if it’s simply that it’s inconvenient for somebody to be in court, then we will be having trials over Zoom.”

Attorney Kristen Johnson from the Missouri Attorney General’s office represented the state and was not available for comment. Because Hall could see Smith and vice versa, she argued that his rights were not disturbed.

The case is State v. Smith, SC99086.