State of Minnesota, Respondent, vs. Kim Marie Tate, Appellant.

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0359
State of Minnesota,
Respondent,
vs.
Kim Marie Tate,
Appellant.
Filed January 3, 2022
Affirmed
Jesson, Judge
Becker County District Court
File No. 03-CR-19-289
Keith Ellison, Attorney General, Lydia Villalva Lijó, Assistant Attorney General, St. Paul,
Minnesota; and
Brian W. McDonald, Becker County Attorney, Detroit Lakes, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Richard Schmitz, Assistant Public
Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Johnson, Presiding Judge; Jesson, Judge; and
Kirk, Judge.
SYLLABUS
1. The analysis in Maryland v. Craig , 497 U.S. 836 (1990), applie s to cases
implicating a defendant’s Confrontation Clause rights when a witness testifies by two-way,
live, remote video technology.
 Retired judge of the Minnesota Court of Appeals, serving by appoi ntment pursuant to
Minn. Const. art. VI, § 10.
2
2. A generalized concern regarding the COVID-19 pandemic does not
sufficiently further an important public policy so as to permit dispensing with a criminal
defendant’s right to confront a witness face-to-face in court.
3. Appellant’s Confrontation Clause rights were not violated w
hen the district
court permitted a police officer to testify via two-way, live, remote vide
o technology based
upon a specific, particularized health concern.
OPINION
JESSON, Judge
The Confrontation Clause of the Sixth Amendment—like its counterpart in the
Minnesota Constitution—provides that “in all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with th e witnesses against him.” U.S. Const. amend.
VI; Minn. Const. art. I, § 6. And that confrontation predominantly requires a face-to-face
meeting. See Coy v. Iowa, 487 U.S. 1012, 1016 (1988). This case places squarely before
us whether the Confrontation Clause, a linchpin of our cons titution, prohibits a witness
from testifying against a defendant at trial, outside the defendant’s physical presence, by
two-way, live, remote video technology.
The setting is the COVID-19 pandemic. The witness was quara ntined due to a
known exposure to COVID-19.1 The district court permitte d the witness’s testimony via
the Zoom platform. 2 To determine whether use of th is two-way, live, remote video
1 “Coronavirus disease (COVID-19) is an infectious disease caused by the SARS-CoV-
2 virus.” World Health Org., Coronavirus dise ase (COVID-19) ,
https://www.who.int/health-topics/coronavirus#tab=tab_1 (last visited Nov. 22, 2021).
2 Zoom is an internet platform for live, remote, two-way video technology.
3
technology violated appellant Kim Marie Tate’s Sixth Am endment rights, we must
determine the appropriate test for assessing whether an ex ception exists to the Sixth
Amendment’s strong preference for in-person con frontation. The test, we determine, is
established in Maryland v. Craig , 497 U.S. 836. It states that a defendant’s Sixth
Amendment confrontation right “may be satisfied absent a physical, face-to-face
confrontation at trial only where denial of su ch confrontation is necessary to further an
important public policy and only where the reliability of the testimony is otherwise
assured.” Craig, 497 U.S. at 850. Applying that test to the facts before us, we conclude
that Tate’s Confrontation Clause rights were not violated when the district court permitted
a police officer to testify via live, remote, two-way video technology based upon a specific,
particularized health concern. We therefore affirm.
FACTS
In March 2018, Tate sold methamphetamine to a confidential informant as part of a
controlled buy conducted by agents with the West Central Drug and Violent Crimes Task
Force (the task force).
Three task-force agents, including a sheriff’s deputy, a police officer, and a special
agent,3 met with the confidential informant before the controlled buy. Prior to the
controlled buy, the task-force agents searched the confidential informant and his car, and
provided him with an audio transmitting and recording device and pre-documented money
to purchase methamphetamine. The task-for ce agents conducted su rveillance during the

3 The special agent was a memb er of the West Central Drug and Violent Crimes Task
Force.
4
controlled buy and listened to the audio device’s live feed while it was recording. Agents
heard three voices on the audio feed and iden tified the individuals as the confidential
informant, Tate, and an unknown individual at Tate’s home. The entire controlled buy was
captured on the audio recording.
The confidential informant remained at Tate’s home for approximately 45 minutes.
After completing the sale, the in formant returned to meet with the task force agents for a
post-sale meeting. All three task-force agen ts were present for this meeting. The
confidential informant gave th e task-force agents the drug s he purchased from Tate.
Analysts with the Minnesota Bu reau of Criminal Apprehensi on later identified the drugs
as 1.265 grams of methamphetamine. Resp ondent State of Minnesota subsequently
charged Tate with one count of third-degree controlled-substance crime, sale, in violation
of Minnesota Statutes section 152.023, subdivision 1(1) (2016).
The district court scheduled the case for trial on November 16-17, 2020. Four days
before trial, the special agent was exposed to a person who tested positive for COVID-19.
Public health officials instructed the special agent to quarantine as a precautionary measure.
The state requested permission for the special ag ent to testify remotely at trial via Zoom.
The state asserted that his testimony was “fu ndamental” to its case. Tate objected to the
state’s request on the ground that it violated her rights under the Confrontation Clause.
Tate requested a trial continuance “to allow fo r this witness to be out of quarantine and
testify in person.”
The district court held a hearing to cons ider both the state’s request to use live,
remote, two-way video technology and Tate’s request for a continuance. The district court
5
stated, “Obviously the Court’s focus is on the safety of anyone who will be in the
courtroom.” It further noted:
The Court does believe that confrontation clause [sic]
does reflect a preference for in-person testimony but it’s not an
absolute right. . . . [A]nd th e Court does believe that the
pandemic, even of itself, would justify the type of exceptional
circumstances that have to give rise to the practical realities of
the case, and not exposing any attorneys or court staff or jurors
to unnecessary risk of the disease spread.

. . . .

But I do want the largest po ssible 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 th at the defendant’s rights for
cross-examination are vindicated.

The district court then granted the state’s reque st to allow the witne ss to testify via live,
remote, two-way video technology and denied Tate’s continuance request.
The matter proceeded to trial. The state called two of the task-force agents to testify
in person. It also called the special agent to testify remotely over Zoom. Prior to the special
agent’s testimony, the district court instructed the jury as follows:
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 th at is to be considered live
testimony, to be judged as you have been judging the
credibility of any other witness that appears live.

The special agent testified that he was a member of the task force and met with the
confidential informant and the other two task-force agents before the controlled buy. The
6
special agent stated that he listened to the audio transmitting live feed while the informant
travelled to Tate’s house, and also maintained visual surveillance. He also noted that he
performed a pat-down search of the confiden tial informant both be fore and after the
controlled buy.
During final jury instructions, the district court gave the following instruction to the
jury regarding COVID-19 procedures generally:
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. Th e judicial branch enacted these
precautions, and it is my responsi bility to implement them in
this courtroom for everyone’s safety.

The jury found Tate guilty of the charged offense and the district court convicted
her and imposed a sentence. This appeal follows.
ISSUES
I. Does the Supreme Court’s decision in Maryland v. Craig apply to cases
implicating a defendant’s Confronta tion Clause rights, when a witness
testifies by live, remote, two-way video technology?
II. Did the district court violate Tate’s constitutional right to confront the
witnesses against her by permitting a st ate’s witness to testify via live,
remote, two-way video technology?
7
ANALYSIS
The Sixth Amendment right to confront witnesses long predates the constitution that
now enshrines it. Crawford v. Washington, 541 U.S. 36, 61 (2004). This right presumes
—and expresses a strong pr eference for—face-to-face confrontation at trial. Craig,
497 U.S. at 845-46.
But the right to personally confront witnesses is not absolute. Before us is a question
of the boundaries of this bedrock right in the context of a global pandemic. To resolve this
particular confrontation dile mma—whether the district court improperly permitted an
officer to testify via live, remote, two-way video technology—we first must determine the
appropriate Confrontation Clause test to apply in Minnesota in these circumstances. We
then consider whether the dist rict court violated Tate’s c onfrontation right by permitting
one of the state’s witnesses to testify via live, remote, two-way video technology when the
witness was in quarantine for exposure to th e COVID-19 virus. We review both issues
de novo. Olson v. One 1999 Lexus , 924 N.W.2d 594, 601-04 (M inn. 2019) (considering
de novo which of two cons titutional tests to apply); State v. Caulfield, 722 N.W.2d 304,
308 (Minn. 2006) (reviewing de novo whet her the admission of evidence violates a
defendant’s Confrontation Clause rights).
I. The analysis set forth in Maryland v. Craig governs the Confrontation Clause
question presented here.

The only time the United States Supreme Court addressed the Confrontation Clause
implications of testimony by live video came in Maryland v. Craig. And the only time a
Minnesota court grappled with the same dilemma, we relied upon the Craig decision to
8
guide us. State v. Sewell , 595 N.W.2d 207 (M inn. App. 1999) (upholding the use of
interactive television after application of the Craig test). 4 Yet Tate asserts that the
subsequent landmark case of Crawford v. Washington undermines Craig (and
correspondingly, Sewell) such that those cases should not provide the framework for
addressing the confrontation issue before us.
To address this issue, we begin with Craig, where the Supreme Court considered
whether the Confrontation Clause prohibited a child witness from testifying outside the
presence of the criminal defendant over one-wa y, closed-circuit television in a separate
room. 497 U.S. at 841. Th e Court determined that the defendant’s confrontation rights
could be satisfied absent a physical, face-to-face confrontation at trial “only where denial
of such confrontation is necessary to further an important public policy and only where the
reliability of the testimon y is otherwise assured .” Id. at 850 (emphasis added). Craig
reasoned that the state had an important intere st in protecting child sexual-abuse victims.
And it determined that the witness’s tes timony was reliable because the defense could

4 In Sewell, a witness was under a medical restriction not to travel at the time of trial. Id.
at 211-12. On appeal, the defendant cha llenged his felony-murder conviction on the
ground that the district court erred by permitting the witness to testify remotely. Id. at 211.
We upheld the use of interactive television and applied the Craig test to our analysis. Id.
at 212. While we did not address the necessity prong at length in Sewell, we analyzed the
reliability prong in greater detail. Id. at 213. We agreed that the witness was unavailable
to testify in person due to his health concerns and that the testimony was reliable because
the defense “had an unfettered opportunity to cross-examine” the witness and the jury “saw
and heard the cross-examination a nd [the witness’s] responses.” Id. At least one other
nonprecedential opinion of this court has likewise relied on Craig and reached a similar
result. See, e.g., State v. Hudson, No. A13-1338, 2015 WL 4393325, at *2-4 (Minn. App.
July 20, 2015) (containing extensive discussion of Craig and concluding that Craig
remains good law despite Crawford’s holding), rev. denied (Minn. Oct. 20, 2015).
9
cross-examine the witne ss, the witness testified under oath , and the parties were able to
assess the witness’s demeanor over the television. Id. at 851-53. Important for purposes
of our analysis, when discu ssing reliability, the Supreme Cour t turned to the reliability
framework set out in its prior decision in Ohio v. Roberts . Id. at 851-52 (citing
Ohio v. Roberts, 448 U.S. 56, 66 (1980), abrogated on other grounds by Crawford ,
541 U.S. at 36). In Roberts, the Court decided that admission of a hearsay statement did
not violate the Confrontation Clause if the declarant was unavailabl e to testify and the
statement bore “adequate indicia of reliability.” 448 U.S. at 66.5
In establishing the two-part test in Craig—necessary to further an important public
policy and reliability of the te stimony—the Supreme Court obs erved that it “ha[s] never
held . . . that the Confrontation Clause guarantees criminal defendants the absolute right to
a face-to-face meeting with [all] witnesses against them at trial.”6 Craig, 497 U.S. at 844.
But this lack of absoluteness should not e quate to easily dispensing with face-to-face
confrontation. Id. at 850.
While Craig considered the use of one-way clos ed-circuit television, its reasoning
applies with equal force to live, remote, two-way video technology, such as the one at issue
in this case. See, e.g., Sewell, 595 N.W.2d at 211 (applying Craig test to two-way video
testimony). The Craig test ensures that even where the testimony is remote, other elements

5 According to Roberts, reliability could either be inferred from the fact that the statement
fell “within a firmly rooted hearsay exceptio n,” or be established by “a showing of
particularized guarantees of trustworthiness.” Id.
6 By way of example, the Court stated, “a literal reading of the Confrontation Clause would
abrogate virtually every hearsay exception.” Id. at 848.
10
of reliability—including the opposing counsel’s ability to fully cross-examine7 the witness
and the jury’s ability to see and hear the wi tness—sufficiently safeguard the defendant’s
constitutional rights. See Craig, 497 U.S. at 851 (noting that these other elements “ensure[]
that the testimony is both reliable and subjec t to rigorous adversarial testing in a manner
functionally equivalent to that accorded live, in-person testimony”).
We are not persuaded otherwise by Tate’s assertion that Craig is undermined—and
should not extend be yond its facts—on the ground that it conflicts with the Supreme
Court’s subsequent decision in Crawford, 541 U.S. at 36. In Crawford, the defendant’s
wife made an out-of-court, unsworn statemen t regarding a stabbing to a police officer,
outside the presence of defendant’s counsel. 541 U.S. at 39-40. Defendant’s wife refused
to testify at trial pursuant to the state’s marital-privilege rule. Id. at 40. The state sought
to introduce a recording of the wife’s statement as evidence at trial and the district court
permitted the state to do so, over the defendant’s objection. Id. The Supreme Court
reversed the defendant’s conviction, determining that wife’s statement was testimonial in
nature and that “[w]here testimonial evid ence is at issue . . . the Sixth Amendment
demands what the common law required: unavailability and a prior opportunity for
cross-examination.” Id. at 68. In so holding, Crawford overruled Roberts.
But Crawford did not overrule Craig. The majority opinion in Crawford did not
even cite to the Craig decision. See generally id. Furthermore, Crawford and Craig

7 The Confrontation Clause ensures the relia bility of the evidence by subjecting it to
“rigorous testing.” Craig, 497 U.S. at 845. The Confrontation Clause commands “not that
evidence be reliable, but that reliability be assessed in a particular manner: by testing in the
crucible of cross-examination.” Crawford, 541 U.S. at 61.
11
answered different questions: Crawford addressed the constitutionality of admitting an
out-of-court statement, see id. at 42, while Craig considered whether a defendant’s
Confrontation Clause right has been satisfied when a court allows testimony via remote
technology in place of face-to-face testimony for an unavailable witness, see Craig ,
497 U.S. at 840.
Our decision to apply the Craig analysis is bolstered by caselaw, which has
generally extended the holding in Craig to Confrontation Clause cases involving live,
remote, two-way video technology. See, e.g., United States v. Carter, 907 F.3d 1199, 1206
(9th Cir. 2018) (applying Craig’s two-part test in context of two-way video); United
States v. Yates, 438 F.3d 1307, 1313 (1 1th Cir. 2006) (same); United States v. Bordeaux,
400 F.3d 548, 554 (8 th Cir. 2005) (same); see also State v. Rogerson , 855 N.W.2d 495,
502-503, 506 (Iowa 2014) (applying Craig standard, requiring showing of necessity and
reliability, and citing other cases adopting Craig test).8

8 While the vast majority of courts agree that Crawford did not overrule Craig, Tate urges
us to follow the approach of th e Supreme Court of Michigan in People v. Jemison ,
952 N.W.2d 394 (Mich. 2020). There, the district court pe rmitted an expert witness to
testify via live, remote, two-way video te chnology, over the defendant’s objection.
Jemison, 952 N.W.2d at 396. A jury found the defendant guilty of first-degree criminal
sexual conduct. Id. The state appellate court sustained the use of this technology, applying
the Craig test and reasoning that it was cost-effective to permit the expert witness to testify
remotely. Id. at 400. The Supreme Court of Michigan reversed and remanded, confining
the Craig test to its specific facts—one-way video with a child sexual-abuse victim—and
determining that Crawford was controlling. Id. at 396, 400-01. Specifically, the court held
that Crawford “requires face-to-face cross-examinat ion for testimonial evidence unless a
witness is unavailable and the defendant had a prior opportunity for cross-examination.”
Id. at 396. But Tate does not clearly articulate which test this court should apply, if not
Craig, when (as here) defendant has an opportunity for cross-examination, albeit remotely.
Thus, for the reasons explained above—although we agree with Jemison’s general
12
We recognize that not all courts have adopted the Craig test. But the primary
outlier, the Second Circuit, adop ted a test which we view as too easily dispensing with
personal confrontation. In United States v. Gigante, 166 F.3d 75 (2d Cir. 1999), that court
endorsed an “exceptional circumstances” test to analyze the issue of testimony presented
via two-way video. Gigante permitted video testimony for a witness in the Federal Witness
Protection Program who was suffering from terminal cancer. Gigante, 166 F.3d at 79-80.
The Second Circuit held that “[u]pon a finding of exceptional circumstances, . . . a trial
court may allow a witness to testify via two-way closed-circuit television when this furthers
the interest of justice.” Id. at 81. Gigante noted that Federal Rule of Criminal Procedure
15 permitted deposition of pretrial witnesses in exceptional circumstances, and that such
deposition testimony may be presented at trial when the witness is unavailable. Id. at 82.9
Given the important role personal confrontat ion plays in our adversarial system, and the
weight of federal authority supporting the Craig test, we decline to apply the minority
approach set out in Gigante.

statement that “expense is not a justification for a constitutional shortcut”—we decline to
follow the approach set out in Jemison. Id. at 400.
9 Other courts have expressly rejected Gigante’s reasoning. In Carter, for example, the
Ninth Circuit reviewed a trial court’s decisi on to permit a witness to testify via remote
technology. 907 F.3d at 12 03. After reviewing the Craig and Gigante tests, the court
stated that it “agree[d] with the Eighth and Eleventh Circuits that Gigante is an outlier and
that the proper test is Craig.” Id. at 1208 n.4; see also United States v. Babichenko ,
No. 1:18-CR-00258-BLW, 2021 WL 1759851, at *2 (D. Idaho May 4, 2021) (declining to
follow Gigante and holding that “the interests of justice [would be] better served with live
videoconference testimony give n under oath, where the Gove rnment can engage in live
cross-examination and the jury can observe the demeanor of the witnesses,” as set forth in
Craig).
13
In the end, this court is bound to follow precedential caselaw, leaving to the Supreme
Court the “prerogative alone to ove rrule one of its precedents.” United States v. Hatter ,
532 U.S. 557, 567 (2001) (citing State Oil Co. v. Khan , 522 U.S. 3, 20 (1997)); see also
Rodriguez de Quijas v. Shearson/Am. Express, Inc. , 490 U.S. 477, 484 (1989) (“If a
precedent of [the Supreme Court] has direct application in a case, yet appears to rest on
reasons rejected in some other line of deci sions, [lower courts] should follow the case
which directly controls, leaving to this Court the prerogative of overruling its own
decisions.”); Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 18 (2000) (“This
Court does not normally overturn . . . earl ier authority sub silentio.”). Because the
Supreme Court has not overruled Craig, and because the premise for its holding was not
undermined by Crawford, we conclude it stands as bindin g authority and applies in cases
involving live, remote, two-way video technology in criminal trials.
II. The necessity and reliability prongs of the Craig test are satisfied here.
Having determined that the Craig decision operates as precedential authority in
Minnesota, we turn to its app lication in this case. We are asked to first consider whether
denying in-person confrontation was necessary to further an important public policy, and
to then examine the reliability of the testimony presented. Craig, 497 U.S. at 850. Courts
define an “important public policy” narrowly for the purpose of finding an exception to the
Confrontation Clause. See id. at 848, 850 (stating that only narrow circumstances may
warrant dispensing with confro ntation right). By way of ex ample, issues related to the
convenience of the parties or added expense are insufficient to satisfy the necessity prong
of the Craig standard. See, e.g. , Carter , 907 F.3d at 1208 (noting that “a criminal
14
defendant’s constitutional rights cannot be ne glected merely to av oid added e xpense or
inconvenience”); Yates, 438 F.3d at 1316 (requiring distri ct court to make “case-specific
findings of fact that would support a conclusi on that [a] case is di fferent from any other
criminal prosecution in which the Governme nt would find it convenient to present
testimony by two-way video conference”). We consider both the necessity and reliability
prongs in turn.
Necessity
Under the first prong, we consider de novo whether the use of live, remote, two-way
video technology for the specia l agent’s testimony was necessa ry to further an important
public policy. Caulfield, 722 N.W.2d at 308. What qualifies as “necessary” in a
confrontation analysis is a high bar. Carter, 907 F.3d at 1206 (stating that the standard is
a stringent one). Thus, when alternatives are available to remote video procedures, “[t]he
right of confrontation may not be dispensed with so lightly.” Id. at 1209 (quoting
Barber v. Page, 390 U.S. 719, 725 (1968)).
We begin our necessity analysis with a summary of the pandemic-related orders of
the Governor and the Chief Justice of Minnesota, which provide the backdrop to the district
court’s ruling. On March 13, 2020, the Governor issu ed an emergency executive
order declaring a peacetime emergency due to the COVID-19 pandemic. Emerg.
Exec. Order No. 20-01, Declaring a Peacetime Emergenc y & Coordinating Minnesota’s
Strategy to Protect Mi nnesotans from COVID-19 (Mar. 13, 2020). The Governor later
extended the emergency order nu merous times, including on November 12, 2020, four
days before Tate’s trial was scheduled to begin. See, e.g. , Emerg. Exec. Order
15
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 Peace time Emergency Declared in
Executive Order 20-01 (Apr. 13, 2020) (extending orde r and recognizing that pandemic
constituted an “unprecedented and rapidly e volving challenge”); Emerg. Exec. Order
20-97, Extending the COVID-19 Peacetime Emergency Declared in Executive Order 20-01
(Nov. 12, 2020) (extending order).
Shortly after the Governor’s initial pande mic executive order, the Chief Justice of
the Minnesota Supreme Court issued an order suspending all jury trials that had not yet
begun and, with certain exceptions, directing other cases to be held via live, remote,
two-way video technology. Order Continuing Operations of the Courts of the State of
Minnesota Under a Statewide Peacetime Declaration of Emergency, No. ADM20-8001, at
3-6 (Minn. Mar. 20, 2020). In a subsequent order, the Chief Justice approved a pilot
program, beginning in June 2020, to test whether jury trials could be held safely during the
pandemic. Order Governing the Continuing Operations of the Minnesota Judicial Branch
Under Emergency Executive Order 20-48 , No. ADM20-8001, at 2 (Minn. May 1, 2020).
The pilot program, which was subsequently ex panded across the state, required district
courts to conform with the Minnesota Judi cial Branch’s COVID-19 Preparedness Plan,
which necessitated (among other safety precautions) mask-wearing and social distancing.
Order Governing the Continuing Operations of the Minnesota Judi cial Branch Under
Emergency Executive Order Nos. 20-53, 20-56 , No. ADM20-8001, at 2 (Minn. May 15,
2020).
16
With these orders in mind, we turn to the proceedings befo re the district court. In
addressing the defense’s request for a continuance on the first day of trial, the district court
stated:
The Court has requested that a 65- or 70-inch screen be used to
project to assist the jurors in viewing credibility. The Court
does believe that [the special agent’s in-person testimony could
risk] . . . 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. And
[counsel], you may be on the cutting edge where there may be
some additional rules from the Su preme Court later this week
on what type of trials are going to go forward, but as of today
the rules haven’t changed.[
10] So the Court will deny the
request. Go ahead.

This decision followed the district court’s reasoning at the pretrial hearing on the
state’s request for remote testimony. There, the court stated that while the Confrontation
Clause “reflect[ed] a preference for in-person testimony,” it was “not an absolute right.”
And the court reasoned that “the pandemic, even of itself, would justify the type of
exceptional circumstances that have to give rise to the practical realities of the case.”

10 Four days later, on November 20, 2020—as the district court foresaw—the Chief Justice
issued an additional order. This order limited in-person activity in court facilities, required
remote hearings, and stated that “[j]ury trials in progress shall proceed to completion,” but
“starting on November 30, 2020 , no new jury trials will co mmence before February 1,
2021,” with certain exceptions. Order Governing the Conti nuing Operations of the
Minnesota Judicial Branch, No. ADM20-8001, at 2 (Nov. 20, 2020). A subsequent order
forbade most new jury trials fro m commencing until March 15, 2021. Order Governing
the Continuing Operations of the Minnesota Judicial Branch , No. ADM20-8001, at 2
(Jan. 21, 2021). In short, the district cour t was appropriately concerned that any further
continuance of this case could have resulted in a significant and uncertain delay of justice
for appellant.
17
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 globa l pandemic. This policy, given the ongoing
orders from the Governor and Chief Justic e at this juncture of the pandemic in
November 2020, easily qualifies as an impor tant purpose and is consistent with our
conclusion regarding medical necessity in Sewell. But we disagree with the district court’s
reasoning that the COVID-19 pandemic, standing alone, satisfies the necessity
requirement. The first Craig prong requires more than generalized findings of policy
concerns. Craig, 497 U.S. at 845 (citing Coy, 487 U.S. at 1021). Instead, “[t]he requisite
finding of necessity must of co urse be a case-specific one.” Id. at 855. And the burden
rests on the state to make an ad equate showing of necessity. Id. Thus, we hold that a
generalized concern regarding the COVID-19 pa ndemic is not a sufficient furtherance of
an important public policy to dispense with a defendant’s right to confront a witness
face-to-face.
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 impo rtant public policy, rather than allowing
the state to rest on the general existence of the pandemic. Multiple state courts follow this
approach and require the state to show that allowing a specific witness to testify via live,
remote, two-way video technology is nece ssary to an import ant policy goal. See, e.g.,
State v. Comacho, 960 N.W.2d 739, 754-56 (Neb. 2021) (affirming conviction involving
remote testimony because remotely-testif ying witness was COVID-19-positive during
18
trial); State v. Bailey , 489 P.3d 889, 901-02 (Mont. 2021) (reversing conviction because
state did not show that remote testimony was necessary to further important policy);
C.A.R.A. v. Jacks on Cnty. Juv. Off. , 2021 WL 2793539, at *8-10 (Mo. Ct. App. July 6,
2021) (concluding juvenile’s Confrontatio n Clause rights were violated by remote
testimony without showing of particularized necessity); J.A.T. v. Jackson Cnty. Juv. Off. ,
2021 WL 3040942, at *6-8 (Mo. Ct. App. July 20, 2021) (same).11 Similarly, at least two
federal courts, upon the government’s request to present remote testimony, have required
a showing that an individual witness is particularly vulnerable to the virus. United
States v. Pangelinan, No. 19-10077-JWB, 2020 WL 5118550, at *1 (D. Kan. Aug. 31,
2020); United States v. Casher , No. CR 19-65-BLG-SPW, at *2-3 (D. Mont. June 17,
2020).
We recognize that another court—like the district court here—has concluded that
the public policy goal of preventing the spre ad of COVID-19 is, by itself, sufficient to
justify the remote presentation of testimony. In a juvenile delinquency case, one Florida
court concluded that the juvenile’s Confrontation Clause rights were not violated because,
at the time of the trial, the infection rate in the state was near its highest. E.A.C. v. State, 324 So. 3d 499, 506 (Fla. Dist. Ct. App. 2021). But we do not find this reasoning
persuasive in light of the heavy prefer ence accorded the opportunity for in-person
confrontation under the Sixth Amendment.

11 Instead of reversing the judgments in C.A.R.A. and J.A.T., the Missouri Court of Appeals
transferred both appeals to the Missouri Supreme Court because it reasoned that the cases
presented a question of “general interest and importance.” C.A.R.A., 2021 WL 2793539,
at *10-11; J.A.T., 2021 WL 3040942, at *8.
19
While a generalized COVID-19 concern does not satisfy Craig’s necessity prong,
we turn to whether the state has made a par ticularized showing of necessity. The special
agent was exposed to a person who tested positive for COVID-19 four days before the trial
began. Public health officials advised him to enter into precauti onary quarantine. The
transcript also reflects that the district court judge, the jurors, and counsel for both the state
and the defense were physically present in the courtroom. Given the 14-day quarantine
period, we conclude that the state made a specific showing that this witness, in particular,
was susceptible to the virus and unavailable to 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. In arriving at this conclusion, we are also mindful that the special agent
(while an important witness) was only one of three officers testifying about the controlled
buy and the actions of the task force.
Still, Tate asserts that if we adopt the Craig test (as we do), we should apply it in
light of Carter, 907 F.3d at 1208, and conc lude that the necessity prong is not met where
the court could have granted a trial con tinuance until the special agent was out of
quarantine. We are not persuaded. In Carter, the court considered a continuance request
for a witness who was seven months pregnant and unable to travel to testify in person. Id.
The court stated that a defendant’s confrontation right “cannot be neglected merely to avoid
added expense or inconvenience.” Id. We agree with that se ntiment but he re, unlike in
Carter, there was no way for the district court to know when the st ate’s witness would
become available. Tate, pointing to the two-week quarantine period, argues that the special
agent was only in temporary quarantine. But the special agent was exposed to an individual
20
who tested positive for COVID-19. If he be came infected, it was unknown how long his
sickness would last, and it could have far exceeded 14 days. We are further mindful that
in November 2020, the virus-infection rates were high. As the Chief Justice’s November
2020 order acknowledged when ordering no new trials be commenced without special
permission, “positive case numbers, the state’s positive percentage rate, and
hospitalizations [had] increased.” Order Governing the Continuing Operations of the
Minnesota Judicial Branch , No. ADM20-8001, at 1 (Minn. Nov. 20, 2020). Given the
high rate of transmission (alluded to by the district court), other witnesses, court personnel,
or jurors could be exposed to (or become infected with) the virus during any continuance,
thus leading to a series of continuances. In short, unlike the ex pected end date of a
pregnancy, no definite end date of the pandemic was on the calendar. In this context, the
possibility of a continuance did not negate the state’ s showing of necessity. See Casher,
2020 WL 3270541, at *3 (distinguishing Carter because, unlike a pregnant witness, the
pandemic presents a situation with “no way for the Court to know when the crisis will
end”).
Accordingly, given this record, we conclu de that the state made a particularized
showing that the use of live, remote, two-wa y video technology was necessary to further
an important public policy. The first Craig factor is satisfied.
Reliability
Turning to the second prong of the Craig test, we consider whether the reliability of
the state’s witness was assured by other means. 497 U.S. at 850. To satisfy this prong, the
witness must generally be under oath a nd understand the seriousness of his or her
21
testimony, the witness must be subject to cross-examination, a nd the judge, jury, and
defendant must be able to properly see and hear the testifying witness. Id. at 845-46, 857;
see also Carter , 907 F.3d at 1206 (identifying elements of confrontation as oath,
competency, cross-examination, and viewability by judge and jury). All four elements
need not be fully pr esent to deem the te stimony reliable. Craig, 497 U.S. at 846, 851.
Rather, the testimony may still be reliable even if one element of confrontation is restricted.
Id.
We are satisfied that the reliability prong is met here. The district court was
sensitive to the defense’s concern about allowi ng the witness to app ear via live, remote,
two-way video technology. The district court stated that it
want[ed] the largest possible sc reen 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 that the defendant’s ri ghts for cross-examination are
vindicated.

The testimony followed this directive. The special agent’s testimony was then
presented via live, remote, two-way video technology. The district court administered an
oath to the witness. Tate does not dispute that the jury , the judge, counsel, and the
defendant, were all able to s ee and hear the special agent tes tify. Nor does Tate dispute
that the witness could see and hear proceedings in the courtroom. The district court ensured
that there was a large screen in the courtroom to facilitate the witness’s testimony. The
defense’s cross-examination consumed near ly nine transcript pages, while the
direct-examination extended to seven. And the district court offered the defense the
22
opportunity to re-cross the witness, but the defense declined. The reliability of the special
agent’s testimony was thus tested “in the crucible of cross-examination.” Crawford,
541 U.S. at 61.
Nothing in the transcript suggests that the court ran into technical problems during
either examination. Nothing in the transcript demonstrates that anyone in the courtroom
had difficulty seeing or hearing the witness, or observing his demeanor. And at the
beginning of cross-examination, the defense attorney asked the special agent if he could
“see and hear” properly. The special agent responded that he could.12
This situation is similar to that in Sewell (albeit with improved technology),13 where
the defendant argued that remote technol ogy prevented the defense from using body
language cues or demeanor clues when cross-examining the witness. 595 N.W.2d at 213.
The Sewell court rejected that argument, reasoning that
defense counsel not only had an unfettered opportunity to
cross-examine [the witness], he did so extensively and
effectively. Having heard, and cross-examined, [the witness’s]
prior testimony, counsel was ab le to explore inconsistent
statements . . . . The jury saw and heard the cross-examination
and [the witness’s] responses . . . . We believe that the jury had

12 At one point during his tes timony, the special agent indicate d that he could not read a
portion of a BCA report referenced during cross-examination regarding fingerprint testing
and touch DNA testing. He stated that the writing on the BCA report was “too small” for
him to see. However, he did not dispute th e attorney’s representation that the writing
related to fingerprint testing or touch DNA evidence. Further, he testified that he could not
“recall one way or the other” whether he re quested fingerprint testing or touch DNA
testing.
13 Frederic I. Lederer, The Evolving Technology-Augment ed Courtroom Before, During,
and After the Pandemic , 23 Vand. J. Ent. & Tech. L. 301, 325-28 (2021) (discussing
improvements in quality of currently available videoconferencing technology).
23
a reasonable opportunity to observe and assess [the witness’s]
demeanor during his testimony.

Id. Accordingly, we determined that there was “no constitutional infi rmity in the use of
[live, remote, two-way video technology] fo r the presentation of the testimony of an
unavailable witness in this case.”
14 Id.
The same analysis applies here: the witn ess was under oath, defense counsel was
able to conduct live cross-examination, and the parties could observe the special agent’s
demeanor. We thus conclude that the reliability of the officer’s testimony was assured.
In sum, because Craig stands as precedential authority, and because both prongs of
the Craig test are satisfied, we conclude that the use of live, remote, two-way video
technology for the special agent’s testimony di d not violate Tate’s Confrontation Clause
right.
DECISION
The two-part test articulated in Craig, 497 U.S. at 836, extends to live, remote,
two-way video technology in Minnesota. We further conclude that Tate’s Confrontation
Clause right was not violated when the district court permitted one of the state’s witnesses

14 Still, Tate relies upon cases suggesting that the use of live, remote, two-way video
technology inhibits a defendant’s ability to read demeanor cues. We disagree. The
presentation of witness testimony over live, remote, two-way video technology bears more
indicia of reliability than the one-way technology approved in Craig, where the court
determined the witness’s testimony reliable when she testified via closed-circuit television
outside the view of the defendant. Craig, 497 U.S. at 855-56. Here, by contrast, the state
presented the witness’s testimony using live, remote, two-way video technology.
24
to testify via live, remote, two-way video technology when the state satisfied the necessity
and reliability prongs of the Craig test. We therefore affirm.
Affirmed.