New Service Rule Applicable to the State Prosecuting Attorney Per Misc. Docket No. 19-012
1. “Whether permitting a key prosecution witness to testify remotely by videoconference from Montana violated the Confrontation Clause of the Sixth Amendment (3 R.R. 158-68; 4 R.R. 52-56).”
2. “Whether the court of appeals erroneously ignored well-established Supreme Court precedent when it conducted the harm analysis of the Confrontation Clause violation.”
At Haggard’s child-sex-abuse trial, the trial court overruled his Confrontation Clause objections and allowed the Sexual Assault Nurse Examiner (SANE) to testify via videoconference. The SANE testified about the victim’s report of the incident, the findings of her exam, and part of the chain of custody for the DNA evidence.
On appeal, Haggard challenged the trial court’s ruling. The court of appeals assumed that Haggard’s confrontation rights were violated and then held that the complained-of error was harmless beyond a reasonable doubt because it was cumulative of other evidence and Haggard’s conviction could have rested on the victim’s testimony alone.
Haggard argues that the Court of Criminal Appeals should address the merits of his confrontation claim because the trial court’s ruling is inconsistent with Supreme Court precedent and that of other states. He points out that, unlike crime victims, the State had no interest in protecting the SANE. Further, the trial court erred to excuse her presence under the rationale that she was an expert, as opposed to a “fact witness.” Haggard recognizes he cross-examined her, but focuses on her physical absence because he, the jury, and the SANE could not see each other simultaneously, and the jury could not fully assess her demeanor.
Haggard also complains about the lower court’s harm analysis. He states that the SANE’s testimony was not merely cumulative. She was the only disinterested, non-family-member witness to corroborate the victim’s account of the incident. Haggard also contends that when in-person confrontation is at issue, Coy v. Iowa, 487 U.S. 1012 (1990), mandates a special harm rule requires a reviewing court to exclude the witness’ testimony from the analysis. Because the SANE was also a DNA chain-of-custody witness, the results would have been excluded. Without the DNA evidence, the State’s case would have pivoted on the victim’s tenuous account.