By Britt Houston Lindsey
Chief Appellate Prosecutor in the Taylor County Criminal District Attorney’s Office
Salute the trial prosecutors among us. Appellate work is like being in a batting cage where the balls are coming out 215 percent faster than they should; it’s hectic and stressful, but at least the balls more or less follow an expected schedule (except for writs, which is like getting beaned in the back of the head by someone you didn’t even know was playing).
By contrast, trial work is like batting while riding a unicycle and juggling bats while someone blasts a firehose at you. Also the unicycle is on fire, the bats are on fire, you’re on fire, and incredibly the fire hose is somehow on fire.
Which leads us to this issue’s As the Judges Saw It case: Haggard v. State, handed down from the Court of Criminal Appeals on December 9, 2020. This case addresses important and timely questions about the application of the Confrontation Clause in a digital and socially distanced age, and it perhaps raises even more questions about where we’re headed. It began as so many cases do, with a trial prosecutor getting unexpectedly tossed a Friday afternoon flaming curveball.
The two underlying cases involved one count of sexual assault of a child and another count of indecency with a child by contact, both committed in Liberty County against a single victim. Haggard was convicted on both counts, pleaded true to the enhancement paragraphs, and was sentenced to 25 years on each count, which the trial court ordered to be served consecutively. Haggard appealed to the Ninth Court of Appeals in Beaumont, alleging seven points of error, point one being that the trial court erred by permitting the Sexual Assault Nurse Examiner (SANE) to testify remotely via videoconference. The Ninth Court affirmed the conviction as to all seven issues, but as you may have guessed, it’s that first issue that interests us—and that interested the Court of Criminal Appeals.
The SANE in this case had relocated to Montana since the child’s examination, and the nurse was originally scheduled to come back to Texas to testify in person. Unfortunately for the State, it was learned that her plans changed the Friday afternoon before trial. That afternoon, the SANE informed prosecutors that she would not be appearing after all, citing “economic and personal reasons”: She had traveled to Texas the week before to testify in another case, she had to travel to Houston again the weekend after to see a family member in hospice, the State would pay for her travel expenses but not for her testimony, and her attorney spouse said that she didn’t have to appear if she wasn’t under subpoena. Everyone who has done trial work of any kind can sympathize with this type of panic-inducing Friday afternoon call.
After voir dire was concluded but prior to the presentation of evidence, the State made an oral motion to allow the SANE to testify remotely via FaceTime. The defense objected to the State’s motion and again objected on Confrontation Clause grounds immediately prior to her remote testimony. Haggard argued on appeal that:
1) the SANE’s failure to appear was voluntary and the State did not issue a subpoena,
2) the SANE was given an oath in Montana by a notary public, not by the clerk of the court or judge in Liberty County,
3) the record does not reflect that the defendant was moved so that the SANE could see him or that the trial court instructed the SANE be able to see Haggard, and
4) the jury’s ability to observe the SANE’s demeanor was impaired when the live videoconference connection was lost momentarily as she recited what the victim had reported to her.
The Ninth Court of Appeals avoided the Confrontation Clause question by going straight to the constitutional harm analysis under Texas Rule of Appellate Procedure 44.2(a). The Ninth Court found that even if the trial court had erred, there was no harm in allowing the SANE’s testimony via FaceTime. The testimony was cumulative of the victim’s testimony, the SANE was not a crucial identification or fact witness, the defendant was permitted to fully cross-examine the SANE, the victim and other witnesses corroborated the material points of the SANE’s testimony, and the State’s case was not dependent on the SANE’s testimony.
Haggard filed a petition with the Court of Criminal Appeals alleging two grounds for review, both of which related to the remote SANE testimony: that the testimony violated the Confrontation Clause and that the Ninth Court’s constitutional harm analysis was flawed. (The Ninth Court had found that even assuming error, there was no harm.)
As the CCA judges saw it
But that’s not as the judges saw it in the Court of Criminal Appeals (I love that part). Judge Hervey wrote the majority opinion and was joined by Judges Keasler, Richardson, Newell, and Walker (Judge Yeary wrote a separate concurrence—more on that later). The majority noted that U.S. Supreme Court precedent has long held that under the Confrontation Clause, a criminal defendant has the right to physically confront those who testify against him, citing the 1988 case of Coy v. Iowa. In Coy, a statute that allowed child victims of sexual abuse to testify behind a screen placed between the victims and a defendant was found unconstitutional under the Confrontation Clause, with the Court’s discussion ranging from prior caselaw to the simple but deep-seated human concept of fairness found in the phrase, “Look me in the eye when you say that.” The Supreme Court left open the question of whether an individualized finding that a particular child needed special protection might create an exception, saying, “We leave for another day, however, the question whether any exceptions exist. Whatever they may be, they would surely be allowed only when necessary to further an important public policy.”
“Another day” came two years later in Maryland v. Craig. In Craig, a Maryland statute allowed a child victim to testify via a one-way closed circuit television, but unlike the statute in Coy, the trial court had to make a particularized finding that testifying would result in such serious emotional distress that the child would be unable to communicate. The Supreme Court found that this satisfied the “important public policy” requirement of Coy.
This is where the Court of Criminal Appeals’s majority found fault with the SANE’s remote testimony in Haggard: The trial court made no case-specific finding and heard no evidence as to the necessity of allowing the SANE to testify remotely that would satisfy the “important public policy” requirement of Craig, saying the closest thing to a necessity finding was the judge’s observation that the State did not have time to subpoena her and noting that the State could have subpoenaed the SANE or asked for a continuance but didn’t. The Court was somewhat sympathetic to the inconvenience to the SANE but found that “the right to physical, face-to-face confrontation lies at the core of the Confrontation Clause, and it cannot be so readily dispensed with based on the mere inconvenience to a witness.”
The Court further found that a constitutional harm analysis should have reviewed a factor not addressed in the Ninth Court’s opinion: The SANE’s testimony proved up the chain of custody for highly incriminating DNA evidence. A forensic examiner testified that DNA evidence from a swab taken by the SANE was 219 quadrillion times more likely to have been contributed by the child victim and the defendant than by some other unrelated and unknown individual. The Court of Criminal Appeals did not itself find harm but remanded back to the court of appeals to conduct a new harm analysis.
Judge Slaughter dissented very, very strongly and maintained that the U.S. Supreme Court cases that the majority found clear and binding were anything but. Judge Slaughter questions whether Craig and Coy are still good law after the Court’s landmark decision in Crawford and points out that neither Craig nor Coy dealt with two-way video technology, which has vastly improved in quality over the last 30 years. In her view, in the absence of express guidance from the U.S. Supreme Court on the proper test for two-way video testimony (and considering inconsistent opinions in the lower federal courts, which she carefully details), the Court should look to the underlying history and purpose of the Confrontation Clause as expressed in Crawford rather than try to force the square pegs of modern-day technology into the round holes of 30-year-old precedents that didn’t deal with those issues.
Judge Slaughter goes on to observe that Crawford recognized that the Confrontation Clause was chiefly intended to prevent trials by deposition or ex parte written affidavits and says that each of the key components of the Confrontation Cause are satisfied in Haggard:
1) the witness was required to take an oath to testify truthfully, and the SANE was sworn in Montana in full view of the courtroom;
2) face-to-face examination of the witness is required, and the SANE could both see the questioner and be seen by the parties and the jury on monitor screens and a 60-inch TV screen;
3) cross-examination was performed just as it would have been in person; and
4) demeanor, which everyone in the courtroom could easily observe.
Because these requirements are satisfied by two-way video in some respects even better than if the witness had been testifying in the courtroom, in Judge Slaughter’s view, there was no Confrontation Clause violation, so why must the trial court be required to make a necessity finding? As she puts it, “When there is no violation, a necessity finding seems … unnecessary.”
Judge Yeary’s concurrence makes the very good argument that the majority’s extensive discussion as to whether a Confrontation Clause violation occurred is outside of the Court’s typical role of limiting itself to the review of decisions of the courts of appeal, as the Ninth Court very deliberately sidestepped that issue. The lower court’s opinion found that “assuming without deciding” that there was a Confrontation Clause violation, no constitutional harm occurred.
Judge Yeary agreed that the lower court’s harm analysis was flawed, but because it didn’t decide the larger Confrontation Clause issue, he would remand without doing so either (Judge Slaughter’s dissent expressed her agreement here in a footnote). Judge Yeary did feel compelled to weigh in on the robust debate between the majority and the dissent regarding the various strengths and weaknesses of in-person-versus-remote testimony. There was considerable pointed back-and-forth disagreement between the majority opinion and the dissent as to whether the sound and video quality in the case was worse, equivalent to, or better than a live witness. Judge Hervey’s majority opinion cited several technical glitches with the video, the defense brief argued that the witness’s body language could not be seen from the chest down; Judge Slaughter responded that glitches happen with courthouse sound systems as well and that body language can’t be read behind a witness stand, either.
Judge Yeary concluded that which is better or worse is beside the point: Taking the Scalia-esque textualist position that our current technology was undreamed-of when the Sixth Amendment was adopted, Judge Yeary noted that it couldn’t reside within the common understanding of the language then used. In Judge Yeary’s view, physical confrontation is what the Constitution mandates, even if it could be proven that modern alternate procedures work just as well or even better.
One good bit of news is the majority opinion seemed to suggest in dicta that some lower court opinions our office (and likely yours) had been using to justify remote testimony are acceptable:
• Stevens v. State, which found no violation in a 75-year-old witness testifying remotely from Colorado because in the year before trial he had been hospitalized repeatedly for “decompensated congestive heart failure, gastrointestinal bleeding, atrial fibrillation, and vascular disease”;
• Rivera v. State, in which a crime scene investigator was allowed to testify remotely because he was on active duty in Iraq at the time of trial, and;
• Lara v. State, in which a witness was allowed to testify remotely because he had a heart attack the night before trial and was in the hospital.
Haggard made clear what will not support a necessity finding: The witness was available to appear and testify but was not subpoenaed. Mere inconvenience to the State or to the witness will not be enough to support a necessity finding, nor will the fact that the witness is an expert, standing alone. The State will need to put on evidence that shows that the witness is incapable of traveling without severe health repercussions, undue financial hardship, or some other consequence of equal severity, and given that the majority opinion noted with disapproval that the State did not seek a continuance, it would be wise to either do so or show why a continuance either isn’t feasible or wouldn’t rectify the situation.
Unfortunately, there is no bright-line test or list of nonexclusive factors to guide the State or the trial court, so our best bet is to make as strong of an evidentiary showing of necessity as possible and tread carefully when proposing that a witness be allowed to testify remotely over the defendant’s objection.
This case obviously has a great deal of impact in our current pandemic climate, but the issue is one that will continue long after the current crisis has ended. W. Clay Abbott, TDCAA’s intrepid DWI Resource Prosecutor, expressed to me that the Haggard opinion generated a great deal of interest in light of recent legislative efforts to use videoconference technology to ease the massive burden on Department of Public Safety forensic experts. In the 86th Regular Session in 2019, the Legislature created Code of Criminal Procedure Art. 38.076 (Testimony of Forensic Analyst by Video Teleconference) to facilitate the use of encrypted, interactive video and audio technology in criminal proceedings and allow the limited number of forensic analysts to testify more efficiently around the state, as they are currently severely limited by the travel and downtime required. The statute requires agreements among the parties so the Haggard opinion won’t be a dealbreaker, and as with a Certificate of Analysis, the defense may raise an objection to a forensic analyst testifying remotely; failure to object is a constitutional waiver. It is inevitable that prosecutors will have to use such mechanisms as forensic evidence outstrips analysts’ availability and resources, and these new-ish laws are a good indicator of where we’re headed in the future. This is an issue that we’ll be seeing more and more, and it’s an extremely good bet that the U.S. Supreme Court will be weighing in on the proper role of remote testimony in the criminal courts in the near future.
As to whether they’ll lean in the direction of our Court’s majority, Judge Slaughter’s dissent, or somewhere in between, only time will tell.
 612 S.W.3d 318 (Tex. Crim. App. 2020).
 “[T]he court of appeals must reverse a judgment of conviction or punishment unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction or punishment.” This is a harm standard you’d rather avoid if you can.
 Haggard v. State, No. 09-17-00319-CR, No. 09-17-00320-CR, 2019 WL 2273869, 2019 Tex. App. LEXIS 4378 (Tex. App.—Beaumont May 29, 2019) (mem. op, not designated for publication), reversed, 612 S.W.3d 318 (Tex. Crim. App. 2020).
 487 U.S. 1012, 1017 (1988).
 Id. at 1021.
 497 U.S. 836 (1990).
 234 S.W.3d 748, 781 (Tex. App.—Fort Worth Aug. 23, 2007, no pet.).
 381 S.W.3d 710, 711 (Tex. App.—Beaumont 2012, pet. ref’d).
 No. 05-17-00467-CR, 2018 Tex. App. LEXIS 5395, 2018 WL 3434547, at *4 (Tex. App.—Dallas July 17, 2018, pet. ref’d) (mem. op, not designated for publication).
 See Tex. Code Crim. Proc. Art. 38.41.