Nevada Supreme Court Rules That General Concerns About COVID-19 Do Not Trump Sixth Amendment

In Newson v. State,[1] a unanimous en banc Supreme Court of Nevada[2] held that a trial court violates a criminal defendant’s right to confrontation when it allows remote testimony without first making case-specific factual findings that the remote testimony “is necessary to further an important public policy” and that “the reliability of the [witness’s] testimony is otherwise assured.”[3]

Because the trial court in this case failed to make those case-specific determinations and instead relied on generalized concerns about COVID-19 and a related administrative order, the supreme court found that murder defendant Vernon Newson, Jr.’s right had been violated.[4] Still, it affirmed his conviction for first-degree murder with the use of a deadly weapon since it found that the error “was harmless beyond a reasonable doubt because the jury’s verdict was unattributable to the error.”[5]

Here, Newson stood accused of murdering his girlfriend by shooting her in the backseat of a car where her two children were also present. He had already been convicted of first-degree murder for this act, but the Supreme Court of Nevada had reversed that conviction because the trial court had erred by not giving his requested lesser-included voluntary manslaughter jury instruction.[6]

In this second trial, the government requested that two witnesses be allowed to testify remotely, essentially claiming that both needed to do so for reasons of cost and convenience. Despite not raising any COVID-related concerns for either witness testifying remotely, the trial court generally relied on the circumstances surrounding COVID-19 and an administrative order that ordered trial judges, “to the extent possible, [to] accommodate requests” for remote appearances by “vulnerable person[s].”[7] The trial court “did not make any findings as to why it was necessary for the witnesses to testify remotely.”[8] Newson objected to this arrangement, and he also raised objections due to technical difficulties encountered during one of the witnesses’ testimony.

That witness, the victim’s godsister, testified about certain interactions and items she observed in the aftermath of the shooting—even though she was not present when the shooting occurred. And the other witness, a police officer who had helped secure the scene of the shooting after everyone involved had already left, testified about what he observed too. Newson took the stand in his own defense. And a jury once again convicted him of first-degree murder with the use of a deadly weapon.[9]

On appeal, he renewed his objection to the use of remote testimony. Writing for a unanimous Supreme Court of Nevada, Chief Justice Lidia Stiglish noted that her court had already made clear that “[f]ace-to-face confrontation is the foundation upon which the United States Supreme Court’s Confrontation Clause jurisprudence evolved.”[10] She elaborated too that her court had said that a witness can only be allowed to testify remotely where it is “necessary to further an important public policy” and where “the reliability of the [witness’s] testimony is otherwise assured.”[11] She explained said that “[r]emote testimony may only be used after the trial court hears evidence and makes a case-specific determination that remote testimony is necessary.”[12]

Here, the trial court didn’t do that. While the Chief Justice said that the remote testimony procedures established in Nevada generally render such testimony reliable, the trial court failed to find that it was necessary. She said that “[a]bstract concerns related to the pandemic generally are not an adequate justification for dispensing with a defendant’s right to in-person confrontation.”[13] And she noted that other state supreme or appellate courts in Missouri, Colorado, Nebraska, Ohio, and Washington had come to the same conclusion.[14]

Despite the trial court’s error, the Supreme Court of Nevada found the error to be harmless because the state demonstrated beyond a reasonable doubt that “the jury’s verdict was unattributable” to it.[15] Newson had an opportunity to cross-examine both witnesses, and Newson himself took the stand, allowing the jury to assess his credibility and demeanor. To the extent technical issues with remote witness testimony cropped up, the supreme court noted that each “of these minor issues were addressed to the extent needed by the [trial court] to ensure that they had minimal impact on” the delivery of the testimony.[16]

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