Presently, there is much uncertainty in Sixth Amendment Confrontation Clause jurisprudence in light of differences in tone and direction set by various United States Supreme Court rulings. The Montana Supreme Court’s decision in State v. Mercier highlights these differences amid the challenge of interpreting constitutional rights in light of modern technological developments.[1]

In Mercier, the court was confronted with the question of whether a “defendant was denied his right under the United States and Montana Constitutions to confront witnesses against him when the State presented a foundational witness in real time by two-way videoconference.”[2] To answer that question, the court was required to interpret the scope of the Sixth Amendment by examining the practical effect of new technology on the interests protected by the Confrontation Clause.

Mercier was taken into custody in late 2016 following a domestic dispute that resulted in the death of Sheena Devine. He was subsequently charged with three criminal offenses: Criminal Mischief for damaging Sheena’s car by throwing rocks, Tampering with Physical Evidence (a phone that investigators discovered submerged in a pot of greasy water), and Deliberate Homicide.[3]Mercier pled guilty to Criminal Mischief, but not guilty to the other two counts. Mercier would defend by claiming Sheena’s death was accidental and that he had not handled the phone in question.

After local technicians struggled to retrieve information from the water-damaged phone, it was delivered to Special Agent Brent Johnsrud of the Department of Homeland Security in Greeley, Colorado, who specialized in extracting data from electronics. Johnsrud extracted and analyzed the phone’s data, determined that it belonged to Sheena, and prepared a written report of his findings. Photographs recovered during this process were the only evidence offered that Mercier had handled the phone that evening.[4]

Prior to trial, the State moved for leave to call Johnsrud to testify from Colorado by live two-way video. As grounds, the State offered that the $670 for roundtrip air travel and other travel expenses for purely foundational testimony was impractical.[5] The District Court overruled Mercier’s objection, and Johnsrud testified via two-way videoconferencing. In doing so, the lower court failed to make “case specific” findings demonstrating the necessity of the video.[6] Instead, the testimony was permitted under generalized concerns for judicial economy.[7]

Mercier also asked the jury, consistent with his version of the incident, to find him guilty of Negligent Homicide rather than Deliberate Homicide. To counter this position, the State offered two photographs from Sheena’s phone, one of which was solid black, and the other a blurry image of Sheena’s kitchen. The photographs were timestamped at 12:00:20 a.m. and 12:00:21 a.m. The angle at which the kitchen photograph was taken made it improbable that Sheena’s daughters took it.[8]

Mercier was ultimately convicted on all counts and subsequently appealed his convictions on two counts. The Montana Supreme Court affirmed in part and reversed in part the defendant’s convictions for deliberate homicide and tampering with physical evidence; it held that Mercier’s constitutional right of confrontation was violated, requiring reversal of his conviction for tampering with physical evidence. In doing so, the court addressed a divergence in opinion amongst federal and state courts on two separate issues involving the continued utility of Maryland v. Craig:[9] (1) whether Craig extends to two-way video procedures and (2) whether its holding has been abrogated by the Supreme Court’s landmark Confrontation Clause decision in Crawford v. Washington.[10]

By deciding the first question, Mercier held that Craig creates an exception to the Confrontation Clause if two requirements are met. It must first be established that denial of a face-to-face confrontation is necessary to further an important public policy. Second, the trial court must determine that the reliability of the testimony is otherwise assured. With respect to the second question, the court in Mercier was “not prepared to declare the proverbial death knell to Craig just yet, and prefer[ed] to await further direction from the Supreme Court.”[11]

In Coy v. Iowa,[12] authored by Justice Scalia, the Court described  the “literal right to ‘confront’ the witness at the time of trial” as forming “the core of the values furthered by the Confrontation Clause.”[13] The Court explained, “there is something deep in human nature that regards face-to-face confrontation between accused and accuser as ‘essential to a fair trial in a criminal prosecution.’”[14] 

Several years later, however—over Justice Scalia’s vigorous dissent —a majority of the Supreme Court redefined what was held in Coy to be an essential guarantee of face-to-face confrontation as a matter of constitutional “preference.”[15] More recently, Justice Scalia's view of the Confrontation Clause reemerged as the prevailing view when the Supreme Court radically altered the judicial understanding of it in Crawford.[16] 

The decision in Mercier reflects the obvious tension between competing views of the Confrontation Clause. This evolving area of the law has presented difficult challenges for the courts and will likely continue to do so, absent some type of intervention. At a minimum, in a properly presented case, the United States Supreme Court will be forced to grant review and resolve the invariable tension that will continue to divide the lower courts on this important constitutional issue.[17]

Until then, courts and scholars will continue to debate Crawford's impact on Craig. While many predict that the Supreme Court ultimately will not overrule Craig, one cannot read Crawford and Coy without appreciating the Supreme Court’s sentiment that Craig-based decisions to override constitutionally favored face-to-face confrontation are important, high-stakes determinations.


Note from the Editor:

The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors. We do invite responses from our readers. To join the debate, please email us at [email protected].

[1] 01-26-2021, WL 248487 (Mont. 2021).

[2] Slip op. at 2.

[3] Id. at 4.

[4] Id. at 4-5.

[5] The State’s request to excuse Agent Johnsrud from testifying in person was made prior the COVID-19 pandemic and the sea change in courtroom procedure that followed.

[6] Id. at 16.

[7] Id.

[8] Id. at 5.

[9] 497 U.S. 836 (1990).

[10] 541 U.S. 36, 124 S. Ct. 1354 (2004).

[11] Slip op. at 15.

[12] 487 U.S. 1012 (1988).

[13] Coy, at 1017-17 (quoting California v. Green, 399 U.S. 149, 157 (1970)) (emphasizing strongly that “the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact”). Accord Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S. Ct. 989, 998 (1987) (stating that “[t]he Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination”).

[14] Id. at 1017 (quoting Pointer v. Texas, 380 U.S. 400, 404 (1965)) (A witness “may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts.”). Id. at 1019 (quoting, indirectly, Zechariah Chafee, The Blessings of Liberty 35 (1956)).

[15] Craig, 497 U.S. at 849 . While the Craig Court adopted the more pragmatic, balancing-based approach, it nevertheless “reaffirm[ed] the importance of face-to-face confrontation with witnesses appearing at trial[.]”

[16] See Crawford, 541 U.S. at 43, 54. (explaining that the constitutional text “is most naturally read as a reference to the right of confrontation at common law,” with “[t]he common-law tradition [being understood as] one of live testimony in court subject to adversarial testing”).

[17] Compare, e.g., Eileen A. Scallen, Coping with Crawford: Confrontation of Children and Other Challenging Witnesses, 35 Wm. Mitchell L. Rev. 1558, 1592-93 (2009) (taking the position that Crawford should not be read to overrule Craig), with David M. Wagner, The End of the “Virtually Constitutional”? The Confrontation Right and Crawford v. Washington as a Prelude to Reversal of Maryland v. Craig, 19 Regent U.L. Rev. 469 (2007) (suggesting the opposite view).