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STATE OF MINNESOTA

IN SUPREME COURT

A21-0359

Court of Appeals Chutich, J.
Dissenting, Thissen, J.
State of Minnesota,

Respondent,

vs. Filed: February 8, 2023
Office of Appellate Courts
Kim Marie Tate,

Appellant.

________________________

Keith Ellison, Attorney General, Lydia Villalva Lijó, Assistant Attorney General, Saint
Paul, Minnesota; and

Brian W. McDonald, Becker County Attorney, Detroit Lakes, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant State
Public Defender, Saint Paul, Minnesota, for appellant.
________________________

S Y L L A B U S
1. The two-part test set forth in Maryland v. Craig, 497 U.S. 836 (1990), applies
to determine whether a defendant’s right to confrontation under the Sixth Amendment of
the United States Constitution and Article I, Section 6, of the Minnesota Constitution has
been violated when a witness testifies during trial by use of live, two-way, remote video
technology.

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2. The defendant’s right to confrontation under the federal and state
constitutions was not violated when the district court permitted one witness to testify using
live, two-way, remote video technology during a jury trial because the remote testimony
was necessary under the circumstances then presented by the COVID-19 pandemic, and
the testimony was sufficiently reliable.
Affirmed.
O P I N I O N
CHUTICH, Justice.
The issue raised by this case is whether a criminal defendant’s right to confrontation
under the Sixth Amendment of the United States Constitution and Article I, Section 6, of
the Minnesota Constitution is violated when a district court allows a witness to testify using
live, two-way, remote video technology during a jury trial in the midst of the COVID-19
pandemic. Appellant Kim Marie Tate was charged with the third-degree sale of a
controlled substance. During her jury trial, the district court allowed one of the State’s five
witnesses to testify via Zoom 1 after the witness was exposed to COVID-19 and forced to
quarantine. After the jury found Tate guilty, she challenged her conviction on appeal,
arguing that her constitutional right to confrontation wa s violated when the district court
allowed the witness to testify via Zoom. In a precedential o pinion, the court of appeals

1 Zoom is a cloud-based technology platform used for live, two-way video
conferencing. The Minnesota Judicial Branch used Zoom during the COVID-19 pandemic
to conduct remote hearings and to facilitate remote testimony in certain matters.

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affirmed the decision of the district court to allow the remote testimony. State v. Tate,
969 N.W.2d 378, 381 (Minn. App. 2022).
We hold that Maryland v. Craig, 497 U.S. 836 (1990), sets forth the appropriate test
to assess whether a Confrontation Clause violation under the federal or state constitutions
has occurred. Applying that test to the circumstances presented here, we conclude that
Tate’s right to confrontation was not violated when the district court allowed one of the
State’s witnesses to testify via Zoom because the remote testimony was necessary under
the circumstances then presented by the COVID-19 pandemic, and the testimony was
sufficiently reliable. Accordingly, we affirm.
FACTS
In March 2018, three law enforcement agents from the West Central Minnesota
Drug and Violent Crimes Task Force—one lead investigator and two additional task-force
agents—worked with a confidential informant to conduct a controlled buy of
methamphetamine from appellant Kim Marie Tate. The task-force agents and lead
investigator provided the confidential informant with an audio recording device to track
the buy. They then conducted surveillance during the controlled buy while listening to the
audio device’s live feed. After the sale, the confidential informant met with the agents and
lead investigator to turn over the 1.265 grams of methamphetamine purchased from Tate.
Respondent State of Minnesota charged Tate with third -degree sale of a controlled
substance in violation of Minnesota Statutes section 152.023, subdivision 1(1) (2022).
After a series of delays—including four successful requests by Tate for a
continuance of the trial—the trial was set for November 16–17, 2020. During this time,

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the nation was dealing with a second wave of high COVID-19 infection rates, vaccines
were not yet available, and Minnesota set a grim new record of daily deaths from the virus.2
The state court system was then operating under a statewide order governing criminal jury
trials, requiring district courts to comply with the Minnesota Judicial Branch’s COVID-19
Preparedness Plan. Operations of the Minnesota Judicial Branch Under Emergency
Executive Order Nos. 20-53, 20-56, No. ADM20-8001 , Order at 2 (Minn. filed May 15,
2020).
Four days before trial, the lead investigator on the case was exposed to COVID-19
and advised by public health officials to quarantine. 3 The State asked the district court to
allow the lead investigator to testify via Zoom because his testimony was “fundamental”
to its case. The district court held a pretrial hearing to consider the State’s request. Tate
objected to the remote testimony. She contended that it would prejudice her case because
remote testimony lessens the ability of the jury to observe witness demeanor and the ability
of the court to monitor whether a witness is using impermissible materials during the
witness’s testimony. Tate asked the district court to continue the trial instead.

2 Emerg. Exec. Order No. 20-97, Extending the COVID -19 Peacetime Emergency
Declared in Executive Order 20-01 (Nov. 12, 2020).

3 At this point during the COVID-19 pandemic, the Centers for Disease Control
and Prevention (CDC) recommended a 14- day quarantine for anyone exposed to a
known case of COVID-19. David J. Sencer, CDC Museum COVID-19 Timeline ,
CDC.gov, https://www.cdc.gov/museum/timeline/covid19.html (last visited Nov. 2, 2022)
[opinion attachment]. Vaccines were then still in the clinical trial phase and not available
to the general public. Id.

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The district court granted the State’s request to allow the lead investigator to testify
via Zoom. The court emphasized its concern for “the safety of anyone who will be in the
courtroom” during the jury trial and their potential for exposure to COVID-19.
Acknowledging that the “confrontation clause does reflect a preference for in-person
testimony,” the district court stated that in-person confrontation is “not an absolute right.”
The court found that the use of Zoom for live video conferencing testimony was an
acceptable alternative to testifying in person under certain, exceptional circumstances. The
district court reasoned that the “pandemic, even of itself” would likely qualify as a valid
reason for remote testimony to ensure that a trial would “not expos[e] any attorneys or
court staff or jurors to unnecessary risk of the disease spread[ing].”
The court noted that whether jury trials will continue to be held in Minnesota may
be under review in the near future, “but for now there have been no changes, and trials are
to continue.” The district court also stated the following:
I do want the largest possible screen available so jurors can view and actually
see the witness while he is testifying, and if it takes longer to fully complete
any cross -examination because of Zoom, we’ll take as much time as
necessary to make sure the defendant’s rights for cross-examination are
vindicated.

Before trial began, the district court entertained further argument on Tate’s motion
for a continuance and whether remote testimony was permissible under the Confrontation
Clause. The district court reiterated its concern that “the pandemic puts us into a different
area as far as safety of court personnel.” The court stated, “I am not suggesting that the
criminal backlog is in any way a reason for not observing constitutional rights, but I do
think that the constitutional rights are protected in this matter.” The district court cited the

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risk of “exposure to court staff, jurors, lawyers, in bringing someone in that is known to
have been in contact with someone, whether or not they do or don’t have symptoms.” In
addition, the court noted that additional guidance may be issued from our court “on what
type of trials are going to go forward, but as of today the rules haven’t changed.”
On the first day of trial, two task-force agents testified in person. Each agent
testified about the standard task-force procedure to conduct a controlled buy and stated that
the controlled buy in Tate’s case followed protocol. Before the buy, the confidential
informant and his car were searched, and the agents then provided the informant with
pre-documented cash and an audio transmitting-and-recording device. The agents testified
that through that device and its live feed, they were able to monitor the entire controlled
buy. After the sales transaction was completed, the agents again met with the confidential
informant, collected the methamphetamine purchased from Tate, and searched the
informant and his car.
An analyst from the Minnesota Bureau of Criminal Apprehension next testified in
person. She confirmed that testing showed that the substance purchased from Tate was
1.265 grams of methamphetamine.
The lead investigator testified via Zoom the next day. The district court broadcast
the testimony to the jury using a 65-inch screen. Before the lead investigator testified, the
district court gave the jury the following cautionary instruction:
Our first witness today will be appearing on the video screen remotely. That
is a result of the pandemic. But you are to judge the credibility just as a live
witness with the factors that I had given you, and any other factors you
believe bear on the credibility and weight; that that is to be considered live

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testimony, to be judged as you have been judging the credibility of any other
witness that appears live.

Under oath, the lead investigator confirmed that he was alone and would only reference
court-approved materials during his testimony. His testimony was primarily foundational
and reconfirmed what the agents had already explained: the controlled buy of
methamphetamine from Tate followed the standard procedure.4
The State’s last witness was the confidential informant, who testified in person. He
was the only eyewitness who could confirm the actual physical sale of methamphetamine
by Tate, and he corroborated the conversation transmitted and recorded by the audio
device. Tate did not testify, but her counsel extensively cross-examined the confidential
informant, suggesting that the informant brought the methamphetamine to the controlled
buy to frame Tate and to save himself from a prison sentence.
During final jury instructions, the district court gave a cautionary instruction
regarding COVID-19:
Throughout the trial, you have seen a number of safety precautions
implemented in an effort to minimize the potential spread of COVID-19.
Many of these steps may have made this process less comfortable or less
convenient. However, you should not draw any inference from these
procedures against the state or the defendant. The judicial branch enacted

4 During cross-examination, defense counsel asked follow-up questions about the
search protocol because the lead investigator was the one who actually searched the
confidential informant before and after the controlled buy. Defense counsel also asked the
lead investigator some questions about the analyst’s report. Specifically, defense counsel
asked the lead investigator if he had requested a fingerprint analysis of the plastic bag
containing the methamphetamine. The lead investigator had difficulty seeing the analyst’s
report over Zoom and could not definitively answer this question. On redirect examination,
however, he confirmed that he does not normally request fingerprint analysis for
controlled-buy investigations.

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these precautions, and it is my responsibility to implement them in this
courtroom for everyone’s safety.

The jury found Tate guilty. The district court imposed a stayed sentence of 21 months in
prison and placed Tate on probation.
On appeal, Tate challenged the district court’s decision to allow the lead investigator
to testify via Zoom. In a precedential opinion, the court of appeals affirmed. State v. Tate,
969 N.W.2d 378, 381 (Minn. App. 2022). Applying the analysis set forth in Maryland v.
Craig, 497 U.S. 836 (1990), the court concluded that Tate’s right to confrontation was not
violated when the district court allowed the lead investigator to testify via Zoom. Tate,
969 N.W.2d at 386–91 . We granted Tate’s petition for review and now affirm the
well-reasoned decision of the court of appeals.
ANALYSIS
The Confrontation Clause of the Sixth Amendment provides: “In all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.” U.S. Const. amend. VI. Similarly, Article I, Section 6, of the Minnesota
Constitution provides in pertinent part that “[t]he accused shall enjoy the right . . . to be
confronted with the witnesses against him.”
5 Minn. Const. art. I, § 6. Accordingly, the
Confrontation Clause generally “guarantees the defendant a face-to -face meeting with

5 The relevant language of the federal and state Confrontation Clauses is identical.
Because Tate does not argue for a more expansive reading of the Minnesota Constitution
than its federal counterpart, we apply the precedent of the United States Supreme Court to
determine whether Tate’s right to confrontation was upheld here.

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witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 1016 (1988).
But the right to personally confront a witness is not absolute. Id. at 1020.
We have never addressed a Confrontation Clause challenge under these unique
circumstances—when one of the State’s five witnesses, in quarantine during a global
pandemic, testified in a jury trial by live, two-way, remote video technology. To evaluate
this challenge, we must first identify the appropriate Confrontation Clause analysis, and
then apply that analysis to the circumstances presented here. We review Confrontation
Clause challenges de novo. State v. Caulfield, 722 N.W.2d 304, 308 (Minn. 2006).
I.
The United States Supreme Court has not yet addressed how witness testimony via
live, two-way, remote video technology affects a defendant’s constitutional right to
confrontation under the Sixth Amendment. In Maryland v. Craig, 497 U.S. 836 (1990),
however, the Supreme Court adopted a two- part test to evaluate a Confrontation Clause
challenge to a Maryland statute allowing a child abuse victim to testify outside the presence
of the criminal defendant using one- way, closed-circuit television. The Supreme Court
held that “a defendant’s right to confront accusatory witnesses may be satisfied absent a
physical, face-to-face confrontation only where denial of such confrontation is necessary
to further an important public policy and only where the reliability of the testimony is
otherwise assured.” Id. at 850.
Tate and the State generally agree that we should formally adopt and apply at least
the first part (the necessity prong) of the two-part analysis set forth in Craig, although they
disagree about the relevance of the second part of the test concerning reliability. We first

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summarize the two-part analysis in Craig and then evaluate whether that test is appropriate
to apply to a Confrontation Clause challenge concerning live, two -way, remote video
conferencing.
The first part of the test in Craig is that the lack of face-to-face confrontation must
be “necessary to further an important public policy.” Id. To satisfy this part of the test,
the necessity prong, the State must advance a valid and important public policy, and the
district court must make a “case-specific” finding of necessity to excuse a witness from
in-person testimony. Id. at 855. In Craig, the “state interest in protecting child witnesses
from the trauma of testifying in a child abuse case” was deemed “sufficiently important to
justify the use of a special procedure that permits a child witness . . . to testify at trial
against a defendant in the absence of face-to- face confrontation . . . .” Id. Accordingly,
the Court held that a child witness may testify via one-way, remote technology in a child
abuse case without violating the Confrontation Clause as long as a trial court makes a
case-specific finding of necessity.6 Id. at 860.
When evaluating the reliability of the testimony under the second part of the Craig
test, the Supreme Court found it “significant” that, apart from a face-to-face confrontation,
“Maryland’s procedure preserves all of the other elements of the confrontation right:
The child witness must . . . testify under oath; the defendant retains full opportunity for

6 The Court ultimately remanded the case to the Maryland Court of Appeals to
determine, under the new legal standard that the Court established in the case, whether the
district court made the necessary case-specific finding regarding the child witness—that
testimony by the child witness in Craig’s physical presence would result in the child
suffering “serious emotional distress such that the child cannot reasonably communicate.”
Craig, 497 U.S. at 860.

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contemporaneous cross-examination; and the judge, jury, and defendant are able to view
(albeit by video monitor) the demeanor (and body) of the witness as he or she testifies. ”
Craig, 497 U.S. at 851. The Court noted that the presence of these key elements of
confrontation “ensures that the testimony is both reliable and subject to rigorous adversarial
testing in a manner functionally equivalent to that accorded live, in-person testimony.” Id.
Given the presence of these safeguards, the Court ultimately concluded that “to the extent
that a proper finding of necessity has been made, the admission of such testimony would
be consonant with the Confrontation Clause.” Id. at 857.
The rationale set forth in Craig applies to witness testimony, whether by a child or
an adult, taken by use of live, two-way , remote video technology like the type used here.
Notably, nearly every jurisdiction that has addressed a defendant’s Confrontation Clause
challenge to the use of two-way testimony using video conferencing—both before and
during the COVID-19 pandemic— has applied the Craig test. See, e.g., In re Interest of
C.A.R.A. v. Jackson Cnty. Juv. Off., 637 S.W.3d 50, 58–60 (Mo. 2022) (applying Craig to
live, two-way, remote video testimony during the COVID-19 pandemic); State v.
Comacho, 960 N.W.2d 739, 754–56 (Neb. 2021) (applying Craig to live, two-way, remote
video testimony of a law enforcement officer during the COVID-19 pandemic); United
States v. Carter, 907 F.3d 1199, 1206–08 (9th Cir. 2018) (applying Craig pre-pandemic to
testimony of an adult witness by live, two- way, remote video); United States v. Yates ,
438 F.3d 1307, 1313 (11th Cir. 2006) (en banc) (applying Craig pre-pandemic to
testimony of adult witnesses by live, two-way, remote video); United States v. Bordeaux,
400 F.3d 548, 554 (8th Cir. 2005) (applying Craig pre-pandemic to testimony of a child

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witness by live, two-way , remote video). We agree that Craig is the appropriate test to
assess a Confrontation Clause challenge to remote testimony, and we formally adopt it
here.
Tate argues that we should rely only on the Craig necessity prong, and not consider
the Craig reliability prong, because a later- decided Supreme Court case, Crawford v.
Washington, 541 U.S. 36 (2004), has limited Craig’s viability.7 In Crawford, the Supreme
Court overruled its decision in Ohio v. Roberts, 448 U.S. 56 (1980). In Roberts, the Court
decided that admission of a hearsay statement did not violate the Confrontation Clause
when a declarant was unavailable to testify if the statement contained “adequate indicia of
reliability.” 448 U.S. at 66 (internal quotation marks omitted) . Tate asserts that because
much of the Supreme Court’s reasoning and support for the reliability prong in Craig came
from Roberts, the Supreme Court’s decision to overturn Roberts in Crawford has
completely undermined the reliability prong. According to Tate, other courts have
recognized this impact on the reliability prong and now exclusively rely on the necessity
prong when applying Craig post-Crawford. See, e.g., In re Interest of C.A.R.A.,
637 S.W.3d at 62–63. Tate contends that we must do the same.

7 At the court of appeals, Tate argued that Minnesota courts should not adopt Craig,
but instead should adopt the Michigan standard applying Crawford v. Washington, 541 U.S. 36 (2004) to nearly all remote testimony. See Tate, 969 N.W.2d at 385 n.8 (citing
People v. Jemison, 952 N.W.2d 394 (Mich. 2020)). Tate still suggests a strict application
of Crawford would be proper, but primarily advocates for a more robust application of
Craig’s necessity prong here. Because we conclude, as discussed below, that Crawford
does not overrule or undermine Craig, the court of appeals was correct to reject adopting
Jemison. Craig is the appropriate constitutional standard.

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The State argues that Craig remains good law and urges us to apply each factor of
the test—necessity and reliability—under a proper Craig analysis. It notes that Crawford
did not overrule or undermine Craig because the cases addressed distinctly different
confrontation issues.
We agree with the State for several reasons. First, “only the Supreme Court may
overrule one of its own decisions.” State v. Brist, 812 N.W.2d 51, 56 (Minn. 2012)
(holding that a Supreme Court decision casting doubt on a previous opinion’s reasoning is
different from overruling the prior opinion’s holding). Even acknowledging that Crawford
casts some doubt on the reasoning underlying the reliability prong of the Craig test, we
note that Crawford did not overrule Craig . In fact, the majority in Crawford does not
mention Craig in its analysis. Because the Supreme Court has not exercised its exclusive
prerogative of overruling its own decision, it follows that Craig, in its entirety, remains
good law. See Brist, 812 N.W.2d at 57 (holding, under the same reasoning, that a different
Supreme Court Confrontation Clause case, Bourjaily v. United States, 483 U.S. 171 (1987),
remained good law post-Crawford).
Moreover, Crawford does not undermine the holding of Craig because the cases
address different Confrontation Clause issues. Crawford discussed whether the
Confrontation Clause is violated by the admission at trial of a testimonial out-of- court
statement. Crawford, 541 U.S. at 68. Before such a hearsay statement is admissible,
Crawford held that the witness must be unavailable and the defendant must have had a
prior opportunity for cross-examination. Id. at 68–69. Crawford simply did not address
the face-to-face aspect of confrontation and whether other key elements of confrontation,

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including a full, virtual cross-examination, can satisfy a defendant’s right to confrontation
under certain narrow circumstances.
In addition, Tate’s argument that we should examine only the necessity prong of the
Craig test is unpersuasive. She relies on several cases to assert that post-Crawford, courts
only consider Craig’s necessity prong. See, e.g., Carter, 907 F.3d at 1202 (concluding that
a witness’s travel limitations because of a problematic pregnancy in the seventh month was
a temporary disability and insufficient to meet the necessity prong); Yates, 438 F.3d at 1316
(concluding that the government did not establish necessity when it could depose overseas
witnesses who refused to travel to the United States). But in those cases, the district courts
failed adequately to consider the necessity prong, making a determination of the reliability
of the testimony unnecessary.
In re Interest of C.A.R.A. provides a good example of when reliability was not
examined. In that case, the Missouri Supreme Court applied Craig during the COVID-19
pandemic to assess a defendant’s challenge to remote testimony in a child sexual abuse
case. In re Interest of C.A.R.A., 637 S.W.3d at 64–66. There, the testimony of every state
witness—the child victim, her mother, and her babysitter—was presented using remote
video conferencing. Id. at 54. The Missouri Supreme Court found a violation of the
Confrontation Clause because the district court failed to determine whether it was
necessary to have every witness testify remotely. Id. at 66. The supreme court did not even
discuss whether the testimony was reliable because the case hinged on the necessity for the
remote testimony. Id. Accordingly, Tate’s reliance on In re Interest of C.A.R.A. is
misplaced.

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Finally, the State correctly emphasizes the need to apply each prong of the Craig
test robustly. To ignore the reliability prong would unnecessarily diminish the importance
of various elements of the right to confrontation, including a defendant’s confrontation tool
of cross-examination— “the greatest legal engine ever invented for the discovery of truth.”
California v. Green, 399 U.S. 149, 158 (1970) (citation omitted) (internal quotation marks
omitted). See also Crawford, 541 U.S. at 61 (holding that the Confrontation Clause
requires “not that evidence be reliable, but that reliability be assessed in a particular
manner: by testing in the crucible of cross-examination”).
Accordingly, we hold that the Craig two-part test is the proper constitutional test to
determine whether a witness can testify outside of a defendant’s physical presence by live,
two-way, remote video conferencing without violating the defendant’s right to
confrontation.
II.
Applying the Craig two-part test here, we conclude that the State has shown that,
under the specific circumstances of this trial, the lead investigator’s remote testimony was
necessary to advance an important public policy interest, and that his testimony was
reliable. See Craig, 497 U.S. at 850.
A.
Turning to the first prong of necessity, Craig instructs us that a valid public policy
interest must be narrowly defined, and that necessity requires specificity. Id. at 848–50,
857–58. General public policy concerns by themselves are insufficient. Coy, 487 U.S. at
1021. The district court must find that the specific circumstances surrounding a specific

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witness warrant denying the right to face-to-face confrontation. Craig, 497 U.S. at 850,
855. The State bears the burden to make an adequate showing of necessity. Id. at 855.
Here, when evaluating the need for the district court to allow the remote testimony
of one witness, we must consider that this jury trial occurred in November 2020 , during
the second deadly wave of a “global health emergency.” State v. Paige, 977 N.W.2d 829,
840 (Minn. 2022). The judicial branch was then operating under uncertain and
ever-changing circumstances relating to the global COVID-19 pandemic. Minnesota’s
Governor had first declared the pandemic to be a peacetime emergency in March 2020.
Emerg. Exec. Order No. 20-01, Declaring a Peacetime Emergency & Coordinating
Minnesota’s Strategy to Protect Minnesotans from COVID- 19 (Mar. 13, 2020) (ordering
non-essential workers to stay home and temporarily closing bars, restaurants, and other
public accommodations). The Governor continuously extended the emergency order, 8
including on November 12, 2020, only days before Tate’s trial was to begin. Emerg. Exec.
Order No. 20-97, Extending the COVID-19 Peacetime Emergency Declared in Executive
Order 20-01 (Nov. 12, 2020) (extending order).
The November 12, 2020, Emergency Order explained in stark detail the harms that
Minnesotans were then experiencing because of the COVID-19 pandemic:
From November 3 to November 6, Minnesota reported four straight days of
record daily COVID-19 cases. Two days later, Minnesota set another state

8 See also Emerg. Exec. Order No. 20-33, Extending Stay at Home Order &
Temporary Closure of Bars, Restaurants, and Other Places of Public Accommodation
(Apr. 8, 2020) (extending order); Emerg. Exec. Order No. 20-35, Extending the COVID-19
Peacetime Emergency Declared in Executive Order 20-01 (Apr. 13, 2020) (extending
order and recognizing that pandemic was an “unprecedented and rapidly evolving
challenge”).

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record of 5,908 new cases. Yesterday, we lost 56 Minnesotans to
COVID-19, setting a grim new record for deaths reported in a single day.
This surge has placed our hospitals under immense strain. Intensive Care
Units are on the verge of dangerous capacity shortages in many areas of the
state. Minnesota has had over 194,000 confirmed COVID-19 cases, with
over 12,000 hospitalizations and over 2,700 fatalities. We have continued to
learn more about COVID-19’s propensity to spread rapidly throughout our
communities—both rural and urban—and continued action is necessary to
mitigate its impacts.

Id. at 1–2.
The Minnesota court system was also in flux when Tate’s trial was held. Shortly
after the Governor’s first emergency order, the Chief Justice suspended in-person hearings
and all jury trials, directing cases to be managed via remote technology. Continuing
Operations of the Courts of the State of Minnesota Under a Statewide Peacetime
Declaration of Emergency, No. ADM20-8001, Order at 3–6 (Minn. filed Mar. 20, 2020).
In a May order, the Chief Justice approved a pilot program to begin in June 2020, to
determine whether jury trials could be safely held. Continuing Operations of the Minnesota
Judicial Branch Under Emergency Executive Order 20 -48, No. ADM20-8001, Order at 2
(Minn. filed May 1, 2020). The pilot program, later expanded to the entire state, required
courts to conform with the Minnesota Judicial Branch’s COVID-19 Preparedness Plan to
ensure the safety of all participating in court proceedings. Operations of the Minnesota
Judicial Branch Under Emergency Executive Order Nos. 20-53, 20-56, No. ADM20-.8001,
Order at 2 (Minn. filed May 15, 2020) (requiring, among other safety precautions,
mask-wearing and physical distance). Only 4 days after Tate’s trial concluded, the Chief
Justice ordered that no new jury trials would begin before February 1, 2021, citing, among
other reasons, an alarming increase in COVID-19 cases across the state. Continuing

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Operations of the Minnesota Judicial Branch, No. ADM20-8001, Order at 2 (Minn. filed
Nov. 20, 2020).9
Given this extraordinary context of courts trying to administer justice safely during
a virulent and deadly outbreak of disease, the district court correctly found that a valid
public policy interest was furthered by the use of remote testimony for this one witness.
The transcripts make it clear that the district court understood that jury trials in the state
“are to continue” and acted accordingly to protect “the safety of anyone who will be in the
courtroom” by reducing the “unnecessary risk of the disease spread.” Here, the lead
investigator had been exposed to a person who had tested positive for COVID-19 and was
advised by public health officials to quarantine. With this exposure, the witness was
particularly susceptible to becoming ill, and his physical presence in the courtroom would
have risked the health and safety of everyone participating in a confined courtroom setting.
At this stage of the pandemic, vaccines were not yet available to protect those in the
courtroom,10 including a number of jurors whom the record showed to be at high risk if
they caught the disease. One certain way to proceed with trial and to prevent the virus’s
spread was for the lead investigator to quarantine. The district court had to make a
judgment call for this specific case and the testimony of one specific witness under
uncertain and rapidly changing pandemic conditions. We agree with the court’s

9 Tate herself recognized the severity of the situation in her motions in limine to the
district court asking for a continuance. She noted that she had “concerns regarding having
a jury trial right now where the number of COVID 19 cases in our area is very high.”

10 Sencer, CDC Museum Covid-19 Timeline , CDC.gov,
https://www.cdc.gov/museum/timeline/covid19.html [opinion attachment].

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determination that the lead investigator’s absence from the courtroom and remote
testimony was necessary to further the important public policy of preventing the spread of
COVID-19 while safely conducting a criminal trial.
In sum, we hold that the necessity prong was met under these specific
circumstances. We emphasize that Tate’s trial was held during an uncertain, critical time
of the pandemic when knowledge regarding COVID-19’s spread and treatment was much
more limited than today, and when emergency orders were still in effect to limit public
interaction and exposure to the virus. The district court in November 2020 was operating
under vastly different circumstances than those facing courts today. The decision to allow
one of the State’s five witnesses—and one of the three task-force agents who were present
for the controlled buy—to testify remotely to protect the health and safety of others during
Tate’s trial was therefore proper.
Tate contends that the State cannot show that remote testimony was necessary when
the district court could simply have granted a short continuance until the lead investigator
became available. In Craig, the Supreme Court addressed the use of less restrictive
alternatives than the one-way closed-circuit television procedure at issue there. 497 U.S.
at 859–60. The Court noted that the decision of the court of appeals—which concluded
that the finding of necessity to justify remote testimony was not met —appeared to rest in
part upon the district court’s failure to consider such alternatives. Id. Although the
Supreme Court recognized that “such evidentiary requirements could strengthen the
grounds for use of protective measures,” the Court “decline[d] to establish, as a matter of

20
federal constitutional law, any such categorical evidentiary prerequisites for the use of the
one-way television procedure.” Id. at 860.
Accordingly, we decline to hold that the granting of a continuance—a matter
typically entrusted to the discretion of the district court11—is required before a district court
may order the use of live, two-way, remote video testimony in a criminal trial. Decisions
to allow remote testimony must be evaluated on a case-by -case basis, see Craig, 497 U.S.
at 855, and the possibility of a continuance does not necessarily undercut a showing of
necessity.
We do not think the possibility of a continuance undercut the State’s showing of
necessity here. The district court did consider Tate’s motion for a fifth trial continuance
but did so in the context of the global pandemic in November 2020. Although a two-week
continuance might sound reasonable in present circumstances, when the district court
decided the issue, it knew from the Governor’s extension of the emergency order—issued
only 4 days before trial started—that COVID-19 cases were surging in Minnesota,
hospitals were under great strain with capacity shortages in their intensive care units, and
a new record for daily deaths had been set in Minnesota. The district court also knew that,
given these developments, new judicial branch orders may soon be issued regarding the

11 If we were evaluating the district court’s denial of a continuance here under the
typical discretionary standard, we would only reverse upon “a showing of clear abuse of
discretion.” State v. Smith, 932 N.W.2d 257, 268 (Minn. 2019) (citation omitted). A denial
of a continuance is an abuse of discretion when the defendant’s strategy is so prejudiced
that the denial materially affects the outcome of the trial. Id. The burden would be on the
defendant to show that she was sufficiently prejudiced to justify reversal. State v.
Courtney, 696 N.W.2d 73, 81 (Minn. 2005).

21
continuation of jury trials. To add to the uncertainty, the district court did not know
whether the lead investigator exposed to the virus would get sick, how sick he would
become if infected or how long it would be until he could appear in person, and whether,
in the meantime, anyone else involved in the trial would get sick, leading to additional
continuances. In short, unlike other cases when a district court could predict an end date,
see, e.g., Carter, 907 F.3d at 1208 (concluding that the temporary disability of a
problematic pregnancy in the seventh month did not meet Craig’s necessity test), the court
here did not know when the unpredictable COVID-19 crisis would ameliorate or end.
Consequently, we conclude that the first Craig prong is satisfied. The State has met
its burden to show that the use of live, two-way, remote video technology by one of its
witnesses was necessary to advance an important public policy.
B.
Turning next to Craig’s reliability prong, we conclude that this second factor is
satisfied here as well. Testimony is generally reliable under the Confrontation Clause if a
witness testifies in the physical presence of the defendant, is sworn under oath, is subject
to cross-examination, and can be properly observed by the trier of fact. Craig, 497 U.S. at
845–46. Physical presence may be excused, however, if the court preserves “all of the
other elements of the confrontation right: . . . . oath, cross-examination, and observation
of the witness’ demeanor.” Id. at 851.
The district court’s order met every reliability element identified in Craig other than
physical presence in the courtroom. The lead investigator was sworn in under oath. After
he was sworn in, the district court confirmed that the lead investigator was alone during his

22
testimony and was not relying on anything besides court -approved materials. The judge,
jury, and counsel were able to see, hear, and observe the lead investigator’s demeanor
during his testimony. The district court required “the largest screen available” (a 65-inch
screen) for the remote testimony and confirm ed that the technology worked beforehand.
Defense counsel also confirmed that the lead investigator could see and hear him before
counsel began cross-examination. Although some subtle intricacies of the witness’s
demeanor may have been lost because the lead investigator was not physically in court, the
jury, counsel, the court, and the defendant could see his face with reasonable clarity and
had the opportunity to assess his manner when testifying. See, e.g., Comacho, 960 N.W.2d
at 756 (stating that Comacho, his counsel, and the jury could observe the witness’s
demeanor “as he testified in real time”).
More importantly, defense counsel had ample opportunity to cross-examine the lead
investigator, and the transcript shows that he conducted an effective cross-examination.
Even though the lead investigator had some trouble seeing a portion of a lab report, his
testimony reflected the point that defense counsel intended to make—that he had not
submitted the evidence for fingerprinting or DNA analysis. Accordingly, the reliability of
his testimony was assessed “by testing in the crucible of cross-examination.” Crawford,
541 U.S. at 61. Overall, the district court took sufficient steps to ensure the reliability of
the lead investigator’s testimony via Zoom. The court of appeals properly concluded that
procedures used by the district court satisfied the reliability prong of Craig.
12

12 Tate also claims that the district court violated Minnesota Rule of Criminal
Procedure 1.05, subdivisions 4 and 9, because those rules require that the parties must each

23
In sum, applying Craig’s two-part test here, we conclude that Tate’s right to
confrontation under the federal and state constitutions was not violated when the district
court permitted one witness to testify using live, two-way, remote video technology during
a jury trial because the remote testimony was necessary under the circumstances then
presented by the COVID-19 pandemic, and the testimony was sufficiently reliable.13
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals and uphold
Tate’s conviction.
Affirmed.

stipulate and agree on any witness who testifies remotely. Tate did not raise this issue at
the court of appeals or in her petition for review, so the argument has been forfeited. See
State v. Myhre, 875 N.W.2d 799, 806 (Minn. 2016). Moreover, even if we considered the
argument, it lacks merit because the rule was suspended by a judicial branch order dated
May 15, 2020. Operations of the Minnesota Judicial Branch Under Emergency Executive
Order Nos. 20-53, 20-56, No. ADM20-8001, Order at 3 (Minn. filed May 15, 2020).

13 Because we conclude that no Confrontation Clause violation occurred here, we need
not reach the issue of harmless error. Even if we were to address that issue, however, we
would conclude that any error here was harmless. See Caulfield, 722 N.W.2d at 314
(holding that an error violating a constitutional right is harmless beyond a reasonable doubt
if it could not have reasonably impacted the jury’s decision).

D-1
D I S S E N T
THISSEN, Justice (dissenting).
COVID-19 is not a universal justification for ignoring a criminal defendant’s
constitutional rights. I dissent from the court’s decision because the use of remote
testimony was not necessary to avoid the risks presented by the COVID-19 pandemic. The
district court could have granted a continuance and avoided those risks. Accordingly, I
would reverse.
A.
As the court observes, the Confrontation Clause generally “guarantees the defendant
a face-to-face meeting with witnesses appearing before the trier of fact.” Coy v. Iowa, 487 U.S. 1012, 1016–17 (1988). The United States Supreme Court has described several
reasons physical face-to-face confrontation is so important. It gives the accused:
[A]n opportunity, not only of testing the recollection and sifting the
conscience of the witness, but of compelling him to stand face to face with
the jury in order that they may look at him, and judge by his demeanor upon
the stand and the manner in which he gives his testimony whether he is
worthy of belief.

Maryland v. Craig, 497 U.S. 836, 845 (1990) (quoting Mattox v. United States, 156 U.S.
237, 242–43 (1895)). In addition, the Supreme Court has noted the importance of a witness
looking a defendant in the eye when he testifies because “[i]t is always more difficult to
tell a lie about a person ‘to his face’ than ‘behind his back.’ ” Coy, 487 U.S. at 1019. And
“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.’ ” Id. at 1018
(quoting Pointer v. Texas, 380 U.S. 400, 404 (1965)). None of the interests are as well

D-2
served when a witness testifies remotely, and so physical, face-to -face testimony should
not “easily be dispensed with.” Craig, 497 U.S. at 850.
I agree with the court that the standard stated in Craig is the proper standard for
assessing whether the district court may constitutionally “dispense with” the Sixth
Amendment right to confrontation and allow a “fundamental” State witness (as the State
itself described the investigator) to testify remotely rather than in-person. See id. Because
physical, face-to-face confrontation serves such essential functions in our criminal justice
system, Craig instructs that the constitutional guarantee of in-person testimony may be
denied “only where denial of such confrontation is necessary to further an important public
policy.”
1 Id. (emphasis added). That “only” is important and should not be ignored. It is
an acknowledgment that we are dealing with a constitutional right and not merely with a
convenience; this case is not about whether the district court abused its discretion. If there
is another way besides remote testimony to serve the identified public policy interest, then
a district court cannot constitutionally jettison physical, face-to-face confrontation.
In this case, the important public policy was keeping jurors, court staff, witnesses,
and the parties and their attorneys safe from the risk of COVID-19 infection and to interrupt
spread of the disease. And I agree that protecting trial participants from the health risks
associated with COVID-19 is an important public policy.

1 Under Craig, the State must also demonstrate that the reliability of the testimony of
the remote witness is otherwise assured. Craig, 497 U.S. at 850. Because I conclude that
the State has not proven that the denial of the right to physical face -to-face confrontation
was necessary, I do not need to reach the additional “otherwise reliable” requirement of the
Craig test and express no views on the continued viability of that portion of the Craig test
in light of the Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 (2004).

D-3
I disagree, however, that suspending Tate’s constitutional right to confrontation was
necessary to avoid those health risks. A continuance would have readily avoided those
same health risks.2 Indeed, no one denies that is the case. Moreover, a continuance would
not have implicated any of Tate’s other constitutional rights. She was not demanding a
speedy trial. Further, she was not in custody while awaiting trial (and was ultimately
sentenced to probation). And there is absolutely no evidence in the record that the State
was concerned about witnesses disappearing or evidence going stale.
The only reason suggested in the record for the district court’s refusal to grant a
continuance instead of suspending Tate’s constitutional confrontation right was the court’s
interest in keeping the case moving. Indeed, the district court suggested as much, stating

2 In assessing whether denial of physical, face-to-face confrontation is necessary, we
cannot ignore reasonable alternatives to the suspension of constitutional rights. Craig does
not prohibit consideration of other alternatives and certainly does not foreclose
consideration of whether denial of an accused’s confrontation right is necessary because a
continuance would equally serve the public interest that is being proffered to justify remote
testimony. Otherwise, the Craig court’s directive that the right to physical face-to-face
confrontation may be dispensed with “only where denial of such confrontation is necessary
to further an important public policy” is nonsensical. 497 U.S. at 850. The Craig court
merely held that a trial court need not make specific findings on necessity as long as the
record supported the need for remote testimony. Id. at 860 (concluding that, despite the
lack of a specific finding, the trial court “could well have found, on the basis of the expert
testimony before it, that testimony by the child witnesses in the courtroom in the
defendant’s presence will result in [each] child suffering serious emotional distress such
that the child cannot reasonably communicate”) (citation omitted) (internal quotation
marks omitted). Moreover, the reference to “less restrictive alternatives” in Craig was
directly tied to the question of whether the trial judge had to first observe the child
witnesses in the presence of the defendant who was alleged to have abused them. Id. at
859–60. As noted in the above parenthetical, such observation was unnecessary in light of
the expert testimony in the case. Id. at 860. Here, the record does not support the district
court’s conclusion that it was necessary to deny Tate her Sixth Amendment right to
confrontation because the district court could have continued the case and achieved the
same protections against the infection and spread of COVID-19.

D-4
in the discussion of the continuance request that “trials are to continue” and “the jury is
ready to go.”3 While that is certainly an understandable instinct, it is not a sufficient reason
to dispense with the constitutional right to confrontation. Accordingly, the deep concern
expressed by the court that Tate’s trial might be postponed indefinitely is beside the point.
Further, the concern about indefinite delay is not sufficient because it is based on
conjecture and speculation. All we know from the record is that the investigator had been
exposed to COVID-19. He very well may have been ready to testify in person a week or
two later —a period of time the majority concludes “sounds reasonable.” There is no
evidence he was—or ever became—infected with COVID- 19. And even if the investigator
had contracted COVID -19, the most likely outcome is that he would have been ready to
testify within a few weeks. Of course, during that time, other witnesses, lawyers, or parties
may have become sick. But again, that is pure conjecture. More critically, the chance that,
if a case is continued, another witness may become unavailable for some reason at the time
of the rescheduled trial is something that is true in every case and not just in the midst of a
COVID-19 pandemic. Moreover, when the decision was made to proceed to trial, the
district court did not know whether Minnesota courts would put criminal trials o n hold
since that decision was not made until after the trial ended.

3 The court suggests that the district court may have felt pressure to proceed with the
trial based on directives from the Judicial Council that jury trials “are to continue.” I
acknowledge that district courts faced institutional pressure to keep jury trials going. But
any directive in an order concerning court procedure— even during COVID-19—is
certainly subject to constitutional limitations.

D-5
It cannot be that an accused’s constitutional rights can be ignored on the basis of
conjecture and speculation. See Watson v. Memphis, 373 U.S. 526, 536 (1963) (stating that
constitutional rights cannot be ignored based on “personal speculations or vague
disquietudes”); see also F.C.C. v. League of Women Voters of California, 468 U.S. 364,
399 (1984) (stating that First Amendment rights cannot be denied “on the basis of merely
speculative fears”). But that is precisely what the court’s unpredictable-end-date rule, and
its application to the facts of this case, allows. Further, we cannot throw out the basic
constitutional principles by which our criminal justice system operates simply by invoking
the word “COVID.” I am concerned that the court’s willingness to rely on speculation and
conjecture opens up a substantial hole in the essential protections afforded the accused by
the constitutional right to confrontation.
B.
I also conclude that the denial of Tate’s Sixth Amendment right to confrontation
was not harmless beyond a reasonable doubt. See State v. Caulfield, 722 N.W.2d 304, 314
(Minn. 2006) (stating that where a Confrontation Clause violation is shown, reversal is
mandatory unless the error is harmless beyond a reasonable doubt). The question we must
decide when assessing whether a constitutional violation is harmless is not whether the jury
would have convicted without the error, but rather whether the jury’s decision was “surely
unattributable” to the error. State v. Juarez, 572 N.W.2d 286, 292 (Minn. 1997).
We have identified nonexclusive factors that we may consider in assessing whether
the jury’s decision was surely unattributable to a Confrontation Clause violation:

D-6
[I]n applying the harmless-error- beyond-a-reasonable-doubt standard, we
have found the error to be harmless only where several factors weigh in that
direction: the evidence was presented in a manner that did not give it
significant focus; the state did not dwell o n it in opening and closing
statements or in examining witnesses; the evidence was not highly persuasive
but was circumstantial. In those cases, the harmless error conclusion has
been reinforced by the strength of the evidence of guilt. But we do not have
a single case applying the constitutional harmless error analysis where we
have held that the strength of the evidence of guilt controls even though the
other factors weigh in favor of prejudicial error.

Caulfield, 722 N.W.2d at 317. The evidence of guilt must be overwhelming before an error
will be found harmless beyond a reasonable doubt. Id. at 316–17. But even in cases
involving overwhelming evidence, an error may still be prejudicial beyond a reasonable
doubt. Id.
In addition, when a Confrontation Clause violation is being reviewed for harmless
error, we cannot consider “whether the witness’ testimony would have been unchanged, or
the jury’s assessment unaltered” had the witness testified live rather than remotely. Coy ,
487 U.S. at 1021–22. In other words, questions like whether a witness testifying in
high-resolution on a big-screen television allowed the jury to assess the witness in the same
way as if the witness were testifying in person—whether technology makes remote “just
like live”—is irrelevant to the harmless error analysis. Rather, harmlessness must be
assessed without any consideration of the investigator’s testimony. See id.
Here, the decision to allow the investigator to testify remotely was not harmless
beyond a reasonable doubt. The investigator was a critical witness. Indeed, the State itself
told the district court that the investigator’s testimony “is fundamental to the State’s case.”

D-7
The testimony of the investigator was presented in a way that was designed to secure
the State’s verdict. There were only a handful of witnesses; the investigator’s testimony
was not lost in a plethora of evidence. The investigator’s testimony was presented in a way
(including, ironically, the fact that the witness was the sole witness to testify remotely),
that gave the testimony particular focus. And the investigator was the final law
enforcement officer witness before closing arguments (the confidential informant and a
witness for Tate testified after the investigator).
That is not to say that other evidence and witnesses were not as important to the
State’s case. In particular, the informant who testified about the controlled drug buy was
persuasive, as was the audio recording of the drug buy. But the informant’s testimony
about what happened inside the house during the controlled buy and who was actually
speaking on the unclear audio was directly contradicted by other witnesses present in the
house. That is not true of the investigator’s testimony, whose testimony was left
unrebutted.
Moreover, a key argument of Tate at trial was that the informant never, in fact,
purchased drugs from Tate but rather that the informant carried the drugs with him to the
buy. Accordingly, the testimony of the investigator, who was an integral part of setting up
the controlled buy, was critical and highly persuasive. His was the only direct testimony
concerning certain aspects of ensuring the informant was not manipulating the controlled
buy set up. As noted, in assessing the harmfulness of the error, we must exclude this
testimony. If we do so, the State’s rebuttal of Tate’s defense is significantly weakened.

D-8
The prosecutor must have thought that the investigator’s testimony was critical as
well. The prosecutor relied heavily in closing, and spent a substantial portion of closing,
on the testimony of “law enforcement” about the careful process they undertook to conduct
the controlled buy. The jury plainly understood that the investigator was part of “law
enforcement” that the prosecutor repeatedly referenced.
In short, the investigator’s testimony was presented in a manner that sharply directed
the jury’s focus on the testimony; the State dwelled on the investigator’s testimony in
closing statements and the timing and nature of the investigator’s t estimony drew more
attention to it; the State itself characterized the witness as “fundamental”; and the evidence
was the only direct testimony—and highly persuasive testimony— on a critical disputed
fact. And, especially in the absence of the investigator’s testimony, the evidence against
Tate was not overwhelming. See generally Caulfield, 722 N.W.2d at 317–18.
On these facts, I cannot conclude that the jury’s verdict was “surely unattributable” to the
district court’s denial of Tate’s Sixth Amendment right to confront her accusers. I would
reverse.