by Sam Rutherford

The Supreme Court of Montana held that the presentation of expert witness testimony adverse to the defendant via two-way video conferencing technology during trial violated the defendant’s right to confront and cross-examine adverse witnesses under both the state and federal constitutions. While such testimony is not impermissible in all cases, in this case, the State failed to meet its burden of establishing the propriety of the procedure employed.

Background

In December 2018, the State charged Luke Strommen, a former Valley County Deputy Sheriff, with Sexual Intercourse Without Consent (“SIWC”). The SIWC charged was based on conduct occurring from 2009 through 2011. The State alleged that Strommen had a sexual relationship with J.R., the young girl who babysat his children. J.R. was just 14 years old when the sexual relationship began and ended when she moved away at age 16. J.R. reported the abuse when she was 23 years old, in November 2018.

In advance of Strommen’s March 2020 trial date, the State sought permission to present the testimony of its expert witness, Dr. Sheri Vanino, remotely via two-way video conferencing at trial. Vanino is a sexual assault behavioral psychologist whose testimony was necessary to aid jury understanding of the typical psychology of young sexual assault victims and why they typically do not contemporaneously report sexual assault. Vanino, who resided and practiced in Denver, Colorado, was not available to testify in-person at Strommen’s trial because she “had a definite irreconcilable scheduling conflict with her regular Tuesday night therapy sessions.”

Strommen objected to the State’s motion, arguing that Vanino must testify in-person or not at all. He argued that in-person cross-examination was crucial because J.R. did not report the alleged sexual intercourse until nine years later. The State responded that it was “not practical” to have Vanino to travel to Montana for in-person testimony.

Strommen’s trial date was continued until July 2020. Meanwhile, in March 2020 at the height of the COVID-19 pandemic, the Montana Supreme Court declared a state of emergency and adopted courtroom administrative protocols related to the crisis. These protocols related to the scheduling and conduct of jury trials, jury administration procedures, use of video and telephonic conferencing for scheduled hearings, and limitation of non-essential travel for judicial branch employees. Nothing in the guidelines restricted the travel of witnesses or authorized video or teleconferencing testimony of State witnesses in criminal trials.

In May 2020, the trial court sua sponte adopted its own COVID-19 protocols specific to Strommen’s trial. The court’s order included restrictions on public participation in the trial, modified jury questionnaires, and granted all witnesses the right to testify via a video conferencing platform. Strommen objected to this order and moved for an indefinite postponement of trial until the pandemic resolved, arguing that the trial court’s blanket authorization of remote witness testimony violated his right to “face-to-face” confrontation. The State countered that the only witness it wished to present via video conferencing technology was Vanino, which the court had already authorized based on her scheduling conflict. The trial court reaffirmed its previous ruling but this time based not only on Vanino’s “significant conflict … unrelated to Covid” but also based on its own COVID-19 protocols.

Vanino testified for the State via video conferencing technology during one day of Strommen’s trial. She gave non-case-specific testimony concerning child sexual abuse victims in general and why they typically do not report abuse contemporaneously, as well as testimony concerning the general traits of child sexual assault perpetrators and how they particularly capitalize on a teenage victim’s susceptibility to being groomed for victimization.

During cross-examination, Vanino disclosed that she was not in Denver anymore but had moved to Nantucket, Massachusetts. She admitted she was not conducting her regular Tuesday night groups due to COVID-19 restrictions but that she was not in quarantine and could have travelled to Montana to testify. Strommen moved for a mistrial based on misrepresentations from the State concerning Vanino’s location and reasons for not appearing in-person at trial. The trial court denied the motion based on concerns that Vanino might get sick while traveling and the overall convenience of video conferencing testimony, which it had previously used prior to the pandemic.

Strommen was convicted following a five-day jury trial and sentenced to 40 years in prison. He timely appealed to the Montana Supreme Court raising only one issue—whether permitting Vanino to testify via video conferencing technology violated his right to confront and cross-examine adverse witnesses.

Analysis

Under the Sixth Amendment to the U.S. Constitution, a criminal defendant has the right “to be confronted with the witnesses against him.” Similarly, under article II, section 24 of the Montana Constitution, a defendant has the right “to meet the witnesses against him face to face.” The Montana Supreme Court reviews alleged violations of these fundamental rights de novo. State v. Mercier, 479 P.3d 967 (Mont. 2021).

A defendant’s right to confrontation generally guarantees the “right to meet” adverse witnesses “face-to-face” at trial. Coy v. Iowa, 487 U.S. 1012 (1988); Maryland v. Craig, 497 U.S. 836 (1990). The purpose of this constitutional guarantee is to “ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding,” Craig, because it is “always more difficult to tell a lie about a person to his face than behind his back” and even if it is told, it will “be told less convincingly.” Coy.

The right to confrontation generally applies to all “testimonial” statements offered as evidence against the accused at trial. Crawford v. Washington, 541 U.S. 36 (2004). A statement is testimonial when the “primary purpose” of statement is establish, report, or prove relevant factual matters in the prosecution’s case. Davis v. Washington, 547 U.S. 813 (2006). The Confrontation Clause therefore prohibits the prosecution from presenting testimonial statements without face-to-face, in-court testimony unless the prosecutor shows (1) that the witness is “unavailable” and that the defendant had a prior opportunity to cross-examine them about the statements or (2) the subject matter of the out-of-court statement is the type of evidence that would have been admissible at trial without cross-examination under the common law in effect when the U.S. Constitution was adopted. Ohio v. Clark, 576 U.S. 237 (2015).

Despite the seemingly mandatory nature of the above case law, both the U.S. and Montana Supreme Courts have recognized a narrow “public policy exception” to the face-to-face confrontation right when the defendant is afforded an opportunity to cross-examine a witness via video conferencing technology. Craig; Mercier. “Accordingly, the trial testimony of a prosecution witness is admissible via two-way video conferencing under the Craig exception upon an affirmative case-specific prosecutorial showing, and corresponding trial court findings, that (1) the witness is ‘unavailable’ for personal face-to-face cross-examination in the courtroom, and (2) denial of such personal face-to-face cross-examination is ‘necessary to further an important public policy’ with ‘the reliability of the testimony … otherwise assured,’” the Court explained. Quoting Mercier.

The Court stated that the first element—unavailability—requires the State to establish on the record that the personal presence of the witness is impracticable to secure due to extraordinary distance, expense, or health considerations. State v. Bailey, 489 P.3d 889 (Mont. 2021). Incorporated within this element is the requirement that the State make a “good faith” effort to obtain the witness’s presence at trial. Ohio v. Roberts, 448 U.S. 56 (1980); Barber v. Page, 390 U.S. 719 (1968). Under the second element—important public policy—judicial economy or a generalized showing of significant travel burden, expense, or inconvenience is generally insufficient, according to the Court. Mercier. For example, the Montana Supreme Court previously upheld testimony by video conferencing technology where the State showed that the witness would have to travel 11,000 miles from Greece, which entailed a 30-hour flight with several layovers, during the height of the pandemic. State v. Walsh, 525 P.3d 343 (Mont. 2023).

Turning to the present case, the State attempted to justify Vanino’s remote testimony based solely on the trial court’s own COVID-19 protocols, but this was not the basis relied upon below. Instead, the State had consistently maintained that Vanino’s previously scheduled group therapy sessions made it “impractical” for her to travel to Montana to testify. The Court stated that the problem with this argument was the State failed to show why Vanino could not make the trip from Colorado after her weekly therapy session or hold her therapy sessions via teleconferencing while in Montana to testify. Moreover, neither the State nor the trial court raised any COVID-related concerns regarding Vanino testifying in person at Strommen’s trial.

The Court determined that Strommen’s constitutional rights were violated because “the State failed to make an adequate case-specific showing, and the District Court failed to make an adequate case-specific finding, that it would have been impossible or reasonably impracticable for the State to secure Dr. Vanino’s testimony, or similar testimony from another qualified expert, for personal in-court presentation … due to an important public policy sufficiently weighty to overcome Strommen’s federal and state constitutional rights to personal in-court cross-examination of prosecution witnesses.”

In an effort to avoid this conclusion, the State attempted to frame Dr. Vanino’s statements as not “testimonial” and thus not subject to the Confrontation Clause, but the Court rejected this contention out-of-hand, noting that it was entirely inconsistent with the State’s assertion in the trial court about the importance of the doctor’s testimony. Because Dr. Vanino’s testimony was unquestionably “helpful to the prosecution,” it was testimonial. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).

Furthermore, the Court concluded that the Confrontation Clause violation was not harmless. Trial errors, such as the erroneous denial of face-to-face confrontation, are subject to harmless error review. Mercier. Such errors will be deemed harmless only if there is no reasonable probability that the erroneously admitted evidence contributed to the verdict, such as when untainted evidence compellingly proved the same fact as the tainted evidence, observed the Court. State v. Van Kirk, 32 P.3d 735 (Mont. 2001). The erroneous admission of expert testimony is frequently highly prejudicial because it amounts to a “seemingly authoritative opinion of a qualified and credible” witness for the State, according to the Court. The Court ruled that because Vanino’s testimony was crucial to bolster the credibility of the State’s complaining witness against Strommen in “a classic he-said/she-said sex offense case,” the trial court’s erroneous denial of face-to-face confrontation was not harmless.

Conclusion

Accordingly, the Court reversed Strommen’s conviction and remanded the case for a new trial. See: State v. Strommen, 547 P.3d 1227 (Mont. 2024). 

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