January 2022

CONFRONTATION CLAUSE

ALLOWING POLICE OFFICER TO TESTIFY VIA ZOOM DUE TO HIS COVID-19 EXPOSURE DID NOT VIOLATE THE DEFENDANT’S RIGHT TO CONFRONTATION

Appellant was charged with third-degree sale of a controlled substance following a controlled buy of methamphetamine. Three law enforcement officers were involved in the controlled buy. One agent was exposed to COVID-19 four days before trial and was advised by public health officials to quarantine. The district court permitted the agent to testify at trial via live, remote, two-way video technology (Zoom). On appeal, Appellant argues her Sixth Amendment right to confront the witnesses against her were violated.

The Court of Appeals determines that the proper analysis for this confrontation clause question is that presented by the U.S. Supreme Court in Maryland v. Craig, 497 U.S. 836 (1990). In Craig, the court held that the confrontation clause could 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. The policy involved here is protecting public health.

While the court holds that the generalized concerns surrounding COVID-19 are not sufficient on their own to dispense with a defendant’s right to confront a witness face-to-face, there is a particularized showing of necessity in this case. Here, the witness was exposed to someone who tested positive for COVID-19 and was advised to quarantine. If he were made to testify in person, the judge, other witnesses, jurors, and other court personnel would also be exposed.

To be reliable, the witness testifying remotely must be under oath and understand the seriousness of his or her testimony, must be subject to cross-examination, and the judge, jury, and defendant must be able to properly see and hear the witness. The agent’s testimony was sufficiently reliable in this case. He was under oath, everyone was able to see and hear him testify, he was thoroughly cross-examined, and the defense was given the opportunity for re-cross. Thus, the court finds Appellant’s right to confront the special agent was not violated by the agent testifying at trial via Zoom. State v. Tate, A21-0359, N.W.2d , 2022 WL 16575 (Minn. Ct. App. Jan. 3, 2022).

HARASSMENT

PROOF OF INTENT TO HAVE A SUBSTANTIAL ADVERSE EFFECT ON SAFETY, SECURITY, OR PRIVACY IS NOT REQUIRED FOR HRO BASED ON DISSEMINATION OF PRIVATE SEXUAL IMAGES

Appellant sought an HRO against Respondent, her ex-husband, alleging Respondent sent a private sexual image of Appellant to her current significant other without her consent. After a hearing, the district court declined to issue the HRO, finding Respondent did not disseminate the photo with the intention of having a substantial adverse effect on Appellant’s safety, security, or privacy.

An HRO may be issued if the district court finds reasonable grounds to believe the respondent has engaged in harassment. Minn. Stat. §609.748, subd. 5(b). Harassment is defined as a single incident of physical or sexual assault, a single incident of harassment under §609.749, subd. 2(8), a single incident of nonconsensual dissemination of private sexual images under §617.261, or repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect or are intended to have a substantial adverse effect on the safety, security, or privacy of another. Minn. Stat. §609.748, subd. 1(a)(1). The question on appeal is what language the qualifying phrase, italicized above, modifies.

The Court of Appeals finds that, per the plain language of the statute and rules of grammar, the qualifier is specific to only the final type of conduct listed in the statute- that is, repeated incidents of intrusive or unwanted acts, words, or gestures. This interpretation is supported by §609.748’s reference to §617.261, the statute criminalizing nonconsensual dissemination of private sexual images, which also does not require an intent to harass. Thus, the court holds that, when an HRO is sought based on the nonconsensual dissemination of private sexual images, the petitioner does not need to show that the dissemination was done with the intent of having a substantial adverse effect on the safety, security, or privacy of another. As the district court denied the HRO based on an erroneous interpretation of the law, the case was reversed and remanded. Borth v. Borth, A21-0571, N.W.2d , 2022 WL 90612 (Minn. Ct. App. Jan. 10, 2022).