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noting that neither physician nor witness signed the letters in support of witness's remote testimony and stating, "[W]e encourage trial courts to require affidavits or even testimony on the phone under oath" before ruling on necessity
Summary of this case from State v. WadeOpinion
No. 36060-1-III
04-21-2020
STATE of Washington, Respondent, v. Abdul Rahman SWEIDAN, Appellant.
Jennifer M. Winkler, Nielsen Koch PLLC, 1908 E. Madison St., Seattle, WA, 98122-2842, for Appellant. Andrew Kelvin Miller, Terry Jay Bloor, Benton County Prosecutors Office, 7122 W. Okanogan Pl. Bldg. A, Kennewick, WA, 99336-2359, for Respondent.
Jennifer M. Winkler, Nielsen Koch PLLC, 1908 E. Madison St., Seattle, WA, 98122-2842, for Appellant.
Andrew Kelvin Miller, Terry Jay Bloor, Benton County Prosecutors Office, 7122 W. Okanogan Pl. Bldg. A, Kennewick, WA, 99336-2359, for Respondent.
PUBLISHED IN PART OPINION
FEARING, J.
Now when some days had passed, Agrippa the king and Bernice arrived at Caesarea to welcome Festus. And as they stayed there many days, Festus laid Paul’s case before the king, saying, "There is a man left prisoner by Felix; and when I was at Jerusalem, the chief priests and the elders of the Jews gave information about him, asking for sentence against him. I answered them that it was not the custom of the Romans to give up any one before the accused met the accusers face to face, and had opportunity to make his defense concerning the charge laid
against him . ACTS 25:16 (Revised Standard Version) (emphasis added).
¶ 1 This appeal raises important constitutional questions that Washington trial courts may increasingly face with the increased use of courtroom technology. Appellant Abdul Sweidan claims the trial court denied his right to face-to-face confrontation by allowing an Arabic interpreter, who overheard Sweidan mutter incriminating statements while Sweidan received medical treatment at a hospital emergency room, to testify by video conference. The interpreter resided in Michigan, where she attended to her critically ill mother.
¶ 2 In the published section of our opinion, we hold that the trial court failed to adequately conduct a hearing and explain its ruling when authorizing video conference testimony. From experience, we recognize the difficulty encountered by superior courts when confronting unique questions of law during the course of a trial with the lack of time and resources to study the questions. Because we find any constitutional error to be harmless, we would otherwise not discuss the underlying merits of Abdul Sweidan’s challenge to the video testimony, but we do so in this instance to provide guidance for trial courts asked to permit remote testimony in criminal prosecutions. In the unpublished portion of our opinion, we explain our ruling of harmless error.
¶ 3 Abdul Sweidan also assigns error to his daughter’s testifying to his guilt, his exceptional sentence, the length of a no-contact order with his children, and the extent of his legal financial obligations. In the unpublished segment of our opinion, we affirm Sweidan’s conviction for attempted second degree murder and his exceptional sentence. We remand for further consideration of the no-contact order and for the striking of a criminal filing fee as a financial obligation. FACTS
¶ 4 The State of Washington prosecuted appellant Abdul Sweidan for repeatedly stabbing his wife, Dania Alhafeth, on August 30, 2017. We borrow the facts from trial testimony. We reserve most of the facts for the unpublished section of the opinion.
¶ 5 Abdul Sweidan and Daniah Alhafeth resided in a Kennewick apartment with their four children. The couple often quarreled. Sweidan sometimes accused Alhafeth of other romantic interests. Some arguments ended with Sweidan striking or pushing Alhafeth. Occasionally, Alhafeth hit back. When Alhafeth suggested divorce, Sweidan responded that he would rather kill Alhafeth than divorce.
¶ 6 On the night of August 29, 2017, Abdul Sweidan and Daniah Alhafeth bickered, after which Sweidan asked Alhafeth to reconcile. Alhafeth responded that reconciliation meant nothing, because the two would squabble again.
¶ 7 On August 30, 2017, according to the State’s evidence, Abdul Sweidan returned home early from work and brutally stabbed Daniah Alhafeth numerous times with a kitchen knife. During the attack, Sweidan also cut his hand. As she lay bleeding on the living room floor, Alhafeth called a neighbor, who called 911. An ambulance ferried Alhafeth to Kennewick’s Trios Hospital.
¶ 8 Abdul Sweidan drove himself to Trios Hospital for treatment to his hand and arrived at 1:37 p.m. Abdul Sweidan spoke primarily Arabic. During the course of his treatment, Trios Hospital called an Arabic interpreter, who assisted Sweidan in communicating with staff.
¶ 9 Maisa Haddad serves as a certified medical interpreter who works from her home in Michigan, where she also cares for her mother. Haddad provided the Arabic-to-English interpretation, through an iPad, for Abdul Sweidan at Kennewick’s Trios Hospital. Haddad saw Sweidan and the attending physician on her screen while interpreting. Haddad observed Sweidan’s cut fingers and heard him tell the treating physician the injuries occurred while cutting meat. According to Haddad, when medical staff left the room, she sat silently while Sweidan remained on her screen for fifteen minutes. Under company practices, Haddad could not ask the patient any questions. During Haddad’s silence, Sweidan volunteered that his wife had pestered him. Sweidan cursed his wife and uttered: "may God not bless her." Report of Proceedings (RP) (April 5, 2018) at 767. Haddad did not respond to the comments.
PROCEDURE
¶ 10 The State of Washington charged Abdul Sweidan with attempted second degree murder and first degree assault. We outline now only the procedural background relevant to the video conference testimony. Before trial, the State presented a motion that asked permission for Arabic interpreter Maisa Haddad to testify at trial by two-way video conference. In support of the motion, the State submitted a letter from Haddad sent to the prosecuting attorney:
I am writing with regard to the request for me to appear in-person for a testimony on the State [v]. Abdul Sweidan - Trios Hospital Medical Treatment Interpretation case. I need to highlight that I would be unavailable to appear in-person before the court due to inability to travel for the following reason:
I live in Michigan and I am the sole in home care-giver for my senior seriously ill mother who is suffering from serious medical conditions that require continuous medical care and I have to be available by her side at all times attending to her medical and other needs. My mother suffers from esophageal cancer and serious heart disease and has recently undergone an open heart surgery. This makes it impossible for me to travel and leave my mother, to whom I am the sole care provider and support.
I have attached herein a letter from her doctor testifying to her medical condition.
Clerk’s Papers (CP) at 166 (emphasis in original). The physician, Fawaz M. Hasso, M.D., wrote:
RE: Heida Yousef Haddad
To Whom it May Concern:
This is to certify that Heida Yousef Haddad[,] the mother of Maisa Haddad[,] is suffering from Esophageal cancer and heart disease and needs continuous medical care for which Maisa[,] her daughter[,] need[s] to be with her[,] and she [Maisa] is unable to travel.
Please feel free to contact my office if you have any questions or concerns. Thank you for your assistance in this matter.
CP at 167. Neither Haddad nor Fawaz wrote their respective statements under oath or under penalty of perjury.
¶ 11 During oral argument in support of the motion for video testimony, the State noted that Maisa Haddad was only one of the State’s twenty-five witnesses. The State characterized Haddad as having no attachment to the case. Thus, according to the State, her demeanor lacked importance.
¶ 12 Abdul Sweidan objected to the motion for remote testimony. He argued that the State failed to show Maisa Haddad’s unavailability. Haddad had no physical impediment to traveling from Michigan to Washington State. Sweidan emphasized that the State presented no evidence that Haddad’s mother faced imminent death. Other caregivers could provide for the mother. Haddad would not be absent from her mother for more than a few days. Thus, Sweidan contended that any video testimony would violate his right to confront witnesses under the state and federal constitutions.
¶ 13 The trial court granted the State’s motion for testimony by video conference. The court commented that, based on a review of the testimony anticipated from Maisa Haddad and after balancing the concerns of the confrontation clause and the right of the parties to cross-examine the witness in court, Skype was an effective way for the witness to testify. The trial court did not enter any findings related to the granting of remote testimony.
¶ 14 At trial, Maisa Haddad testified via Skype with both video and audio. The prosecution examined Haddad, and defense counsel cross-examined her. The trial record does not describe the setup used for the video conference testimony, including what screens the State employed and whether the jury and Abdul Sweidan could see the demeanor of the witness.
¶ 15 In its closing, the State mentioned interpreter Maisa Haddad’s testimony:
And while she’s sitting there with him, he starts cursing his wife. What do we mean by cursing? May God not bless her.
So think about this. This is a woman who is a thousand miles away from Dania, no connection to her other than they both speak Arabic, and she hears him say something just like what Dania heard him say. To Dania he said, "May God not bring you back."
RP (April 13, 2018) at 1344-45.
¶ 16 The jury convicted Abdul Sweidan of attempted second degree murder and first degree assault. LAW AND ANALYSIS
Video Conference Testimony
¶ 17 Issue 1: Should we apply a de novo standard of review or an abuse of discretion standard of review when assessing whether the trial court erred when permitting Maisa Haddad to testify by video conference?
¶ 18 Answer 1: We decline to address this question.
¶ 19 Abdul Sweidan assigns error to the trial court’s permission for Maisa Haddad testifying by remote video. He argues that the ruling violated his constitutional right to confront face-to-face a witness presenting evidence against him.
¶ 20 The parties raise a threshold question of what standard of review to apply. Abdul Sweidan asks that we apply a de novo review standard. The State seeks an abuse of discretion standard at least as to the trial court’s finding of necessity for video conference testimony. We decline to address this question in part because the trial court never entered a finding of necessity. Also, our decision would remain the same no matter the standard of review we employed.
¶ 21 Issue 2: Did the State identify an important state interest when requesting video conference testimony?
¶ 22 Answer 2: Yes.
¶ 23 The Superior Court Criminal Rules do not address the use of remote testimony. Washington courts acknowledge that, when the criminal rules fall silent, the Superior Court Civil Rules provide guidance in determining how to proceed. State v. Cayetano-Jaimes , 190 Wash. App. 286, 297, 359 P.3d 919 (2015). CR 43(a)(1) directs:
(1) Generally. In all trials the testimony of witnesses shall be taken orally in open court, unless otherwise directed by the court or provided by rule or statute. For good cause in compelling circumstances and with appropriate safeguards , the court may permit testimony in open court by contemporaneous transmission from a different location.
(Some emphasis added). Abdul Sweidan does not argue that the State did not fulfill the demands of CR 43(a)(1). He relies exclusively on the constitutional right to the confrontation of witnesses, although we note that the strictures of CR 43(a)(1) echo the demands discussed below emanating from the confrontation clause. We also focus on the constitutional right to face one’s accusers, such that our ruling holds no precedence for civil trials. ¶ 24 Both the federal and state constitutions afford an accused the right to face witnesses presenting evidence against him or her. The United States Constitution declares:
In all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him.
U.S. CONST. amend. VI (emphasis added). The United States Supreme Court incorporated Sixth Amendment protections to apply to state prosecutions under the due process clause of the Fourteenth Amendment. Illinois v. Allen , 397 U.S. 337, 338, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970). Under the state constitution,
In criminal prosecutions the accused shall have the right to ... meet the witnesses against him face to face .
WASH. CONST. art. I, § 22 (amendment 10) (emphasis added). RCW 10.52.060 confirms the right of every person accused of a crime "to meet the witnesses produced against him or her face to face."
¶ 25 According to the United States Supreme Court, the confrontation clause ensures the reliability of evidence against a criminal defendant by subjecting the evidence to rigorous testing in the context of an adversary proceeding before the trier of fact. Maryland v. Craig , 497 U.S. 836, 845-46, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990). The word "confront," after all, means a clashing of forces or ideas, thus manifesting the notion of adversariness. Maryland v. Craig , 497 U.S. at 845, 110 S.Ct. 3157. The confrontation clause also serves the symbolic goals of fairness and reliability in a prosecution. Lee v. Illinois , 476 U.S. 530, 540, 106 S. Ct. 2056, 90 L. Ed. 2d 514 (1986).
¶ 26 The accused deserves the opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him or her to stand face to face with jurors so that jurors may look at the witness and judge by the witness’s demeanor on the stand and manner of testimony whether the witness deserves belief. Mattox v. United States , 156 U.S. 237, 242-243, 15 S. Ct. 337, 39 L. Ed. 409 (1895). According to judicial psychology, the risk of a witness wrongfully implicating an innocent defendant wanes when testifying in the accused’s presence. Maryland v. Craig , 497 U.S. at 845-46, 110 S.Ct. 3157 (1990). A person encounters more difficulty when telling a lie about another to his or her face than behind his back. Coy v. Iowa , 487 U.S. 1012, 1019-20, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988). In light of these considerations, the confrontation clause demands a witness be under oath, cross-examined, and subjected to observation of demeanor by the trier of fact. Maryland v. Craig , 497 U.S. at 851, 110 S.Ct. 3157 (1990).
¶ 27 According to the United States Supreme Court, face-to-face confrontation forms the core value furthered by the constitutional confrontation right. Maryland v. Craig , 497 U.S. at 847, 110 S.Ct. 3157 (1990). Thus, the confrontation clause prefers a face-to-face confrontation during trial. Ohio v. Roberts , 448 U.S. 56, 63, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), abrogated by Crawford v. Washington , 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Nevertheless, the right to face-to-face confrontation between the accused and witnesses is not an indispensable element of the Sixth Amendment’s guarantee of the right to confront one’s accusers. Maryland v. Craig , 497 U.S. at 849-50, 110 S.Ct. 3157. A literal reading of the confrontation clause would abrogate hearsay exceptions, a result deemed extreme. Ohio v. Roberts , 448 U.S. at 63, 100 S.Ct. 2531 (1980). Considerations of public policy and necessities of the case, in narrow circumstances, may preempt the right of a physical face-to-face encounter. Maryland v. Craig , 497 U.S. at 849, 110 S.Ct. 3157.
¶ 28 Maryland v. Craig , 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990) is the leading decision on the clash between video conference testimony and the confrontation clause. The United States Supreme Court addressed whether an exception existed to the confrontation right and held that it did. The Court determined whether a Maryland statute that permitted a child victim of abuse to testify by a one-way closed circuit television, in order to avoid seeing his or her abuser, violated the confrontation clause. The statute allowed a court to arrange for the accused to remain in the courtroom, while defense counsel and the prosecution conducted questioning in a separate room. The defendant and jury could see the testifying child witness on a monitor in the courtroom, but the child could not see the accused. The United States Supreme Court, in Maryland v. Craig , upheld Maryland’s statutory procedure and noted that the trial court left intact all other elements of the confrontation right that safeguarded reliability of the testimony, including the oath, cross-examination, and the ability for all persons in the courtroom to see the demeanor of the witness.
¶ 29 In Maryland v. Craig , 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the United States Supreme Court announced a two-prong test which, when met, satisfies an accused’s constitutional confrontation right without a physical face-to-face confrontation. The trial court must render a case-specific finding that (1) excusing the presence of the witness necessarily furthers an important public policy, and (2) the procedure otherwise assures the reliability of the testimony. Maryland v. Craig , 497 U.S. at 850, 110 S.Ct. 3157. Since Craig , all federal and state courts have applied this dual test.
¶ 30 Despite permitting closed circuit television or video conference testimony, in Maryland v. Craig , the United States Supreme Court warned about routinely permitting these substitutes for face-to-face confrontation. A trial court may not easily dispense with the right to face-to-face confrontation. Maryland v. Craig , 497 U.S. at 850, 110 S.Ct. 3157 (1990). Before dispensing with the accused’s right, the court must engage in a case specific, individualized determination of the necessity for testimony by other means. Maryland v. Craig , 497 U.S. at 855-56, 110 S.Ct. 3157. In the case of a child witness, the trial court must hear evidence and determine whether use of the procedure is necessary to protect the welfare of the particular child witness who seeks to testify. Maryland v. Craig , 497 U.S. at 855-56, 110 S.Ct. 3157. The court must enter a case specific finding. ¶ 31 Technology continually updates and improves remote communication, including video conferencing. Nevertheless, technological changes in the courtroom cannot come at the expense of the basic individual rights and freedoms secured by our constitutions. Harrell v. State , 709 So. 2d at 1372 (Fla. 1998). Confrontation through a video monitor is not the same as physical face-to-face confrontation, and the two are not constitutionally equivalent. United States v. Yates , 438 F.3d 1307, 1315 (11th Cir. 2006). The electronic medium compromises the Sixth Amendment’s guarantee of the right to confront one’s accuser. Commonwealth v. Atkinson , 2009 PA Super 239, 987 A.2d 743, 751. Remote testimony may reduce or eliminate intangible elements of the ordeal of testifying in a courtroom. United States v. Yates , 438 F.3d at 1313.
¶ 32 Unlike the United States Constitution, article I, section 22 ( amendment 10 ) of the Washington Constitution employs the phrase "meet the witnesses against him face to face." Some state courts, whose constitutions also contain or contained the wording "face to face," have held the use of video conferencing as a means to present testimony is always unconstitutional. Commonwealth v. Ludwig , 527 Pa. 472, 594 A.2d 281, 283-85 (1991) ; Brady v. State , 575 N.E.2d 981, 986-89 (Ind. 1991) ; Commonwealth v. Bergstrom , 402 Mass. 534, 524 N.E.2d 366, 374 (1988). Pennsylvania has since amended its constitution to omit the phrase "face to face." Other states have disagreed that remote testimony is always violative of the confrontation clause no matter the wording of the state constitution. State v. Self , 56 Ohio St. 3d 73, 564 N.E.2d 446, 450-53 (1990) ; Commonwealth v. Willis , 716 S.W.2d 224, 227 (Ky. 1986) ; State v. Burns , 112 Wis.2d 131, 332 N.W.2d 757, 764 (1983).
¶ 33 In State v. Foster , 135 Wash.2d 441, 466, 957 P.2d 712 (1998) (plurality opinion), four of the Washington Supreme Court justices, including the author of the lead opinion, held that the language "face to face" did not afford the accused any additional protections against remote testimony. The four justices emphasized an 1889 dictionary entry that defined "confront" to mean "to bring face to face." Thus, the United States Constitution’s Sixth Amendment, with the phrase "confronted by witnesses," bears the same meaning as if the language read "face to face." A fifth justice, who joined the majority in holding RCW 9A.44.150 constitutional, disagreed that the State Constitution never afforded additional protections to the accused. RCW 9A.44.150 is Washington’s version of the statute that allows a child witness, under limited circumstances, to testify by one-way video conference rather than in the physical presence of the accused.
¶ 34 In State v. Foster , the Washington Supreme Court adopted the Craig test for purposes of Washington Constitution’s confrontation clause, thereby allowing remote testimony in limited circumstances. The state high court echoed the United States high court’s perspective when declaring that, though fundamental and important, the defendant lacks an absolute right to confront a witness under the state constitution. State v. Foster , 135 Wash.2d at 473, 957 P.2d 712.
¶ 35 The Washington Supreme Court, in State v. Foster , and the United States Supreme Court, in Maryland v. Craig , issued rulings in the context of one-way closed circuit television, when the victim witness could not see the accused. Neither the United States Supreme Court nor the Washington Supreme Court has addressed two-way conferencing. Because two-way video conference testimony allows the jury and the accused to see the witness and the witness to see the jury and the accused, some States have argued that two-way conferencing does not implicate the confrontation clause. Nevertheless, a consensus of state and federal courts has applied the Craig test to two-way conferencing testimony. United States v. Carter , 907 F.3d 1199, 1208 (9th Cir. 2018) ; State v. Rogerson , 855 N.W.2d 495, 501-03 (Iowa 2014) ; State v. Smith , 2013-NMCA-081, 308 P.3d 135, 137 ; Harrell v. State , 709 So. 2d 1364, 1368-69 (Fla. 1998). Although two-way video testimony more closely resembles face-to-face confrontation than one-way video, two-way video is still not the equivalent of physical face-to-face confrontation. State v. Rogerson , 855 N.W.2d at 502-04 ; Harrell v. State , 709 So. 2d at 1368-69. Despite questioning of the truth of the assumption, courts postulate that the screen and the physical distance between the witness and the accused reduces the truth-inducing effect of confrontation. State v. Rogerson , 855 N.W.2d at 504. Virtual presence created by a television screen falls short of physical presence. United States v. Bordeaux , 400 F.3d 548, 554 (8th Cir. 2005) ; State v. Smith , 308 P.3d at 137. From the remote witness’s point of view, the angle and quality of the courtroom camera and the size and quality of the witness’s viewing screen will necessarily define the courtroom. United States v. Carter , 907 F.3d at 1207. In Abdul Sweidan’s appeal, the State does not contend Maisa Haddad’s video testimony automatically passed constitutional muster because of two-way conferencing.
¶ 36 Abdul Sweidan argues that the State of Washington failed to satisfy either requirement of the Craig test. The first prong of the Craig test requires the State to show denial of Abdul Sweidan’s confrontation rights was necessary to further an important public policy interest. Sweidan argues that the State demonstrated no public policy sufficient to permit the dispensing of Sweidan’s right to face-to-face physical confrontation. The State responds that a large number of jurisdictions have held that the need to care for a chronic illness serves an important public policy.
¶ 37 Abdul Sweidan emphasizes that Maryland v. Craig and State v. Foster addressed state statutes designed to protect child abuse victims, and Sweidan impliedly argues that only a statutory policy suffices to satisfy the first prong of Craig . The State relies on no statute in this appeal. Nevertheless, no decision holds that only public policy found in a statute can outweigh the right to face-to-face confrontation. Also, the issue of permitting testimony by video most frequently arises with regard to child witnesses because of a fear possessed by a child victim of seeing his or her abuser. Nevertheless, no decision holds that only child abuse victims may benefit from being absent from the courtroom.
¶ 38 Courts define narrowly an "important public policy" for purposes of an exception to the confrontation clause. State v. Smith , 308 P.3d at 138 (2013) ; Commonwealth v. Atkinson , 987 A.2d at 748 (Pa. Super. Ct. 2009). The State’s interest in protecting child witnesses from the trauma of testifying in a child abuse case justifies the use of a special procedure that permits a child witness to testify in the absence of face-to-face confrontation. Maryland v. Craig , 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). Outside the context of child witness cases, courts have permitted the use of video conference testimony in two other circumstances: when a witness is too ill to travel and when a witness resides outside the United States. Horn v. Quarterman , 508 F.3d 306, 320 (5th Cir. 2007) ; People v. Wrotten , 14 N.Y.3d 33, 896 N.Y.S.2d 711, 923 N.E.2d 1099, 1103 (2009) ; Commonwealth v. Atkinson , 987 A.2d at 748. The State has a legitimate interest in protecting the witness from physical danger and suffering. Horn v. Quarterman , 508 F.3d at 320. When the witness is essential to the case and the witness is located in another country outside the subpoena authority of the State, the State’s interest in a just and expeditious resolution of the prosecution trumps face-to-face confrontation. United States v. Abu Ali , 528 F.3d 210, 239-41 (4th Cir. 2008) ; Harrell v. Butterworth , 251 F.3d 926, 931 (11th Cir. 2001). The trial court may also permit an overseas active-duty soldier to testify by video conference. Rivera v. State , 381 S.W.3d 710, 711 (Tex. Ct. App. 2012).
¶ 39 Courts have deemed other policies or goals insufficient to allow remote video testimony. The State’s need for video conference testimony to prove or efficiently present its case is not a sufficient public policy to outweigh the accused’s right to confront an accuser face-to-face. United States v. Yates , 438 F.3d at 1316 (11th Cir. 2006) ; United States v. Carter , 907 F.3d at 1208 (9th Cir. 2018) ; State v. Rogerson , 855 N.W.2d 495, 502 (Iowa 2014). Convenience and cost saving do not suffice. State v. Rogerson , 855 N.W.2d at 507 ; State v. Smith , 308 P.3d at 138 ; Commonwealth v. Atkinson , 987 A.2d at 751. Convenience for the witness’s employer also does not preempt face-to-face confrontation. State v. Smith , 308 P.3d at 138. Nor do security concerns eclipse the right to face-to-face confrontation. Commonwealth v. Atkinson , 987 A.2d at 750. The fact that the witness is helpful to the prosecution does not add another category for permitting video conference testimony. Melendez-Diaz v. Massachusetts , 557 U.S. 305, 313-14, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009). Unwillingness to travel is not a sufficient reason to dispense with the physical presence requirement, and a court should consider reasonable alternatives permitting face-to-face testimony. United States v. Carter , 907 F.3d at 1208 (9th Cir. 2018) ; United States v. Yates , 438 F.3d 1307, 1317-18 (11th Cir. 2006). We recognize transportation of Maisa Haddad to Washington and back would expend fuel, but no court has validated video conference testimony by the reduction of the witness’s carbon wheelprint.
¶ 40 The State of Washington’s witness, Maisa Haddad, resided in Michigan. That distance alone does not create a necessity for video testimony. Haddad remained within the subpoena power of Washington State. Washington has adopted the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, under which the Washington court could direct a Michigan court to command the presence of Haddad to testify in Washington State. RCW 10.55.060. The State of Michigan reciprocates. MICH. COMP. LAWS ANN. § 767.92.
¶ 41 The State may impliedly suggest that the importance of Maisa Haddad as a witness may support a finding of an important public policy. Based on precedent holding that the convenience of important witnesses does not qualify as a sufficient public policy, we rule that the importance to the State of Maisa Haddad’s testimony failed to support a finding of an important public policy.
¶ 42 The State mentions that, in State v. Cayetano-Jaimes , 190 Wash. App. 286, 359 P.3d 919 (2015), this court held that the trial court committed error when refusing to permit telephonic testimony by an adult witness unavailable to testify in the courtroom due to deportation to Mexico. Nevertheless, the defendant sought to introduce the testimony of the critical witness, who could not return to the United States. The State successfully argued before the trial court for the preclusion of the testimony. The high court based its ruling on an accused’s Sixth Amendment right to present a complete defense, not on the confrontation clause. The opponent of the remote testimony, the State, probably lacked any constitutional right to confront the accused’s witnesses.
¶ 43 Many decisions support the proposition that an illness of the witness suffices to permit a witness to testify by video. In Horn v. Quarterman , 508 F.3d at 313 (5th Cir. 2007), a Texas jury convicted Patrick Horn with capital murder and sentenced him to death. Horn filed a petition for habeas relief claiming in part that the trial court denied him the opportunity to confront a witness when the witness testified via two-way closed-circuit television. The appeals court denied relief because the state court correctly permitted a terminally ill witness, whose doctor advised against travel, to testify remotely.
¶ 44 In Harrell v. Butterworth , 251 F.3d at 931 (11th Cir. 2001), David Harrell argued the trial court violated his right to confrontation when the court permitted two witnesses to testify via satellite from Argentina. On habeas review, the court reviewed the trial court’s decision to excuse in-person confrontation of two witnesses essential to the State’s case. The trial court had found the witnesses lived beyond the subpoena power of the court, there was no way to compel them to appear, and one of the witnesses was ill and could not travel. ¶ 45 In State v. Sewell , 595 N.W.2d 207 (Minn. Ct. App. 1999), Jeffrey Sewell challenged his conviction for second degree felony murder, while arguing that the trial court improperly permitted the testimony of witness William Hurt through interactive television. The State alleged that Sewell admitted to the murder when speaking with fellow inmate Hurt. At the time of trial, Hurt suffered from medical problems, and he was under a medical restriction not to travel. The reviewing court upheld the use of the video testimony.
¶ 46 In Stevens v. State , 234 S.W.3d 748 (Tex. App. Fort Worth 2007), the state Court of Appeals held that video testimony of a 75-year-old witness suffering from medical problems did not violate the confrontation clause. The witness’s cardiologist wrote a letter to the court explaining the witness had a well-documented medical history demonstrating a tenuous health status. The cardiologist wrote that testifying could have ramifications on his health.
¶ 47 Contrary to the witnesses in the cited decisions, Maisa Haddad was not too ill to travel. Instead, this appeal presents the unique situation of the witness declining to travel because of the need to care for a suffering family member. Abdul Sweidan contends that, since exceptions to face-to-face confrontation are narrow and no court has identified the illness of a mother warranting an exception, we should deny the State’s promotion of an important public policy.
¶ 48 The parties forward no appellate decision addressing these circumstances. We also find no decision directly relevant. Nevertheless, we conclude that the important policy of alleviating physical pain and suffering can extend to the circumstances when the witness would attend to another’s needs resulting from such suffering. No reason exists to distinguish between the aching of the witness and the hurting of a witness’s close family member. Whether Maisa Haddad needed to care for the mother, however, poses a different question. ¶ 49 Issue 3: Did the State establish the necessity to present the testimony of Maisa Haddad by video in order to further an important state interest?
¶ 50 Answer 3: No. If we held the video conference testimony to be harmful, we would reverse the conviction or at least remand for an evidentiary hearing on the necessity of the video conference testimony.
¶ 51 We continue to address the first of the two Craig prongs. Under the first element, the State must show that excusing the presence of the witness necessarily furthers an important public policy. Maryland v. Craig , 497 U.S. at 850, 110 S.Ct. 3157 (1990). Viewed in this light, Maryland v. Craig actually establishes a three-part test: (1) the presence of an important public policy, (2) remote testimony necessarily furthers the public policy, and (3) the procedure otherwise assures the reliability of the testimony. Reported decisions focus on whether the government identifies an important public policy and only incidentally address the necessity portion of the first prong.
¶ 52 The word "necessity" can bear an emphatic connotation. For example, Black’s Law Dictionary defines the companion word "necessary" as "essential." BLACK’S LAW DICTIONARY 1192 (11th ed. 2019). Nevertheless, the word has shades of meaning, from absolute physical necessity to convenience. McCulloch v. State , 17 U.S. 316, 413-15, 4 Wheat. 316, 4 L. Ed. 579 (1819). The law rarely, if ever, requires absolute or indispensable necessity in any setting. Central Puget Sound Regional Transit Authority v. WR-SRI 120th North LLC , 191 Wash.2d 223, 245, 422 P.3d 891 (2018). Generally, the word "necessary" means reasonable necessity, under the circumstances of the particular case. Central Puget Sound Regional Transit Authority v. WR-SRI 120th North LLC , 191 Wash.2d at 245, 422 P.3d 891.
¶ 53 Because the use of video conference testimony implicates an accused’s critical constitutional right, we do not consider the word "necessity" to connote mere convenience, particularly in light of reported decisions that declare convenience does not qualify as an important public policy. We may be unable to circumscribe the meaning of necessity in this appeal’s context beyond concluding that the word means something more than "convenient," although something less than "absolute physical necessity."
¶ 54 The trial court never entered a finding or commented in its oral ruling about the necessity of Maisa Haddad’s testifying remotely. Abdul Sweidan raised legitimate questions at trial, and he repeats those questions on appeal, about the purported need for Haddad to remain in Michigan. The letters of Maisa Haddad and the mother’s physician beg the question of whether another caregiver could have cared for the mother in the absence of Haddad for three days. We also wonder if the mother would have recovered in the near future or if the mother was terminally ill and would have died in the near future such that the court could have postponed trial for Haddad to later appear in Washington State.
¶ 55 In United States v. Carter , 907 F.3d 1199 (9th Cir. 2018), the Ninth Circuit Court of Appeals overruled the district court when that court failed to look for alternatives to an adult witness’s testifying remotely. The State charged Laron Carter with fourteen counts of trafficking and prostituting seven minor girls. One victim witness stated she could not travel to the trial due to her late pregnancy. The Ninth Circuit overturned the district court’s decision to permit the remote testimony of this witness, while reasoning that pregnancy is a temporary disability and therefore alternatives existed to ensure the witness faced Carter in person. These alternatives included granting a continuance or severing the counts involving the witness.
¶ 56 The decision most analogous is Bush v. State , 2008 WY 108, 193 P.3d 203 (Wyo. 2008), which decision addresses necessity. In a prosecution for first degree murder, the trial court allowed the prosecution to present testimony of an elderly couple who recognized David Bush’s pickup truck as the truck that passed them at a high rate of speed shortly after the murder. The couple also saw two large plastic bags in the bed of the truck. The husband developed congestive heart failure and renal failure one week before trial and could not travel from his home in Colorado to Wyoming. The wife did not wish to leave the husband alone. The decision does not disclose whether the wife helped to care for the husband. The trial court found that the wife would suffer great stress if she left her husband of sixty years to travel to Wyoming. The Wyoming Supreme Court affirmed the trial court’s ruling permitting the husband to testify by video conference. The state Supreme Court reversed the trial court’s ruling permitting the wife to testify remotely. The wife was not ill. The court, however, held the error to be harmless.
¶ 57 Issue 4: Was the reliability of Maisa Haddad testimony assured?
¶ 58 Answer 4: Yes.
¶ 59 On appeal, Abdul Sweidan argues that the State did not satisfy the second prong of the Craig test because the remote video conferencing did not ensure truthful testimony to the same extent as live testimony. In so arguing, Sweidan merely repeats his previous contention that video testimony inherently reduces the trustworthiness of trial testimony. Sweidan identifies no difficulty in the video or audio transmission or in the ability of the jury and him to observe the demeanor of Maisa Haddad or for Haddad to see Sweidan.
¶ 60 Assuming the trial court allows video conference testimony, this court assesses whether other components of the confrontation clause were left intact, including "oath, cross-examination, and observation of demeanor by the trier of fact" to determine if testimony is reliable. Maryland v. Craig , 497 U.S. at 837, 110 S.Ct. 3157. These components ensure the reliability of testimony in the absence of physical presence.
¶ 61 Maisa Haddad testified under oath, the defense cross-examined her, and, according to the State, the jury could observe Haddad’s demeanor. Abdul Sweidan does not argue to the contrary. The State also highlights that it never asked Haddad to identify Abdul Sweidan. Therefore, we hold the reliability of the evidence was assured.
¶ 62 Despite our ruling, we encourage the trial court or the State, with the court’s concurrence, to verify on the record the structure and the mechanics of the video conference presentation. Such details should include the number and location of the video screens in the courtroom, the technology present at the location of the witness, the dimensions of the respective screens, and what sections of the witness’s body that the jury can see on the screen. The record should confirm that the jury and the defendant see the witness and the witness’s body language, and that they hear the witness. The record should also verify that the witness sees the jury and the defendant. Finally, at the conclusion of the testimony, the trial court or the State should substantiate that no errors in the transmission occurred. We do not hold, however, that any of these suggestions must necessarily be followed to fulfill the strictures of the confrontation clause.
¶ 63 In United States v. Bordeaux , 400 F.3d at 555 (8th Cir. 2005), the federal appeals court commented that, before approving of two-way video testimony, the court would wish to know answers to a myriad of logistical questions. Important concerns included the size of the monitor, placement of the monitor, and placement of the cameras.
¶ 64 Issue 5: Must the trial court enter findings of fact when granting a request for video conference testimony?
¶ 65 Answer 5: Because of the lack of a formal assignment of error from Abdul Sweidan and because we find any error to be harmless, we do not resolve the question. Without issuing a ruling, we encourage trial courts to enter findings.
¶ 66 Abdul Sweidan emphasizes that the trial court entered no findings identifying the important state public policy on which the court relied or the need for video conference testimony to support the policy. He impliedly assigns error to the lack of findings. Nevertheless, because of the lack of a formal assignment of error and because of the lack of briefing directly on point, we decline to decide whether findings are essential. RAP 10.3(a)(4) ; Valente v. Bailey , 74 Wash.2d 857, 858, 447 P.2d 589 (1968).
¶ 67 In the context of child abuse victims, the United States Supreme Court, in Maryland v. Craig , 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), has required specific findings to demonstrate necessity. The findings must include (1) remote testimony being necessary to protect the child, (2) the presence of the defendant traumatizing the witness, and (3) the emotional distress suffered by the child witness in the presence of the defendant was more than minimal.
¶ 68 Other courts have followed the United States Supreme Court, in contexts outside child abuse cases, in directing lower courts to enter findings as to an identified important public policy and the need for video conference testimony to advance the policy. In Commonwealth v. Atkinson , 987 A.2d at 748 (2009), the Pennsylvania high court held that the trial court breached the accused’s confrontation rights, when conducting a motion to suppress, because the trial court failed to enter case specific findings when permitting video testimony during the motion hearing. The court also failed to conduct an evidentiary hearing to determine if video testimony was warranted based on the specific facts relating to an individual witness. The court held the constitutional error to be harmless. In State v. Rogerson , 855 N.W.2d at 499 (Iowa 2014), the court wrote that the trial court must enter a fact specific finding of the necessity to substitute video for live testimony.
¶ 69 In a prosecution for obtaining property by false pretenses, the court allowed a witness to testify by two-way, closed circuit internet broadcast from Nebraska to North Carolina. State v. Seelig , 226 N.C. App. 147, 738 S.E.2d 427 (2013). The State alleged that Paul Seelig falsely advertised his bread as gluten free. The witness testified to tests he performed on samples of Seelig’s bread products. The court indicated that, to decide the necessity question, the trial court must hold an evidentiary hearing and make case specific findings as to the necessity of allowing the witness to testify outside the defendant’s physical presence in order to fulfill the important state interest. The trial court conducted a hearing, after which the court found that the witness had a history of panic attacks, had suffered a severe panic attack on the day he planned to fly from Nebraska to North Carolina for trial, was hospitalized as a result, and was unable to travel to North Carolina because of his medical condition. The record showed that the defendant and the jury could see the witness while he testified.
¶ 70 In People v. Buie , 285 Mich. App. 401, 775 N.W.2d 817 (2009), the reviewing court remanded to the trial court for a specific finding because the record was devoid of any evidence or any findings by the trial court regarding the necessity of the video conferencing procedure implemented. In Horn v. Quarterman , 508 F.3d 306 (5th Cir. 2007), the Fifth Circuit Court of Appeals on habeas review held the lower court properly permitted remote testimony based on the court’s case specific finding of necessity. The reviewing court looked to the record and found the trial court took efforts to confirm the illness of a witness and his inability to travel and concluded in its findings that extreme circumstances made it necessary for the witness to give his testimony remotely. The trial court’s findings also included a specific overview of the procedural safeguards implemented to ensure the other components of his Sixth Amendment right remained intact.
¶ 71 One court strongly suggested that the trial court conduct an evidentiary hearing before deciding whether to permit video conference testimony. The federal appeals court in United States v. Yates , 438 F.3d at 1315 (11th Cir. 2006) stated that generally the trial court must hold an evidentiary hearing to determine whether it is essential in the particular case to deny a defendant his constitutional rights in order to further a compelling state interest. The court reversed convictions because the district court failed to make "case-specific findings of fact that would support a conclusion that this case is different from any other criminal prosecution in which the Government would find it convenient to present testimony by two-way video conference." United States v. Yates , 438 F.3d at 1316.
¶ 72 We note that neither the physician nor Maisa Haddad signed their respective letters or otherwise provided testimony under oath or penalty of perjury. We encourage trial courts to require affidavits or even testimony on the phone under oath before ruling on the necessity to further an important public policy.
¶ 73 The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with RCW 2.06.040, the rules governing unpublished opinions.
WE CONCUR:
Siddoway, J.
Lawrence-Berrey, J.