State of Iowa v. Zachariah J. Rogerson ( 2014 )


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  •               IN THE SUPREME COURT OF IOWA
    No. 13–1329
    Filed October 24, 2014
    STATE OF IOWA,
    Appellee,
    vs.
    ZACHARIAH J. ROGERSON,
    Appellant.
    Appeal from the Iowa District Court for Dubuque County,
    Monica L. Ackley, Judge.
    The defendant in a criminal case brings an interlocutory appeal
    from the district court’s pretrial order allowing several of the State’s
    witnesses to testify by two-way videoconference.       REVERSED AND
    REMANDED.
    Brian D.W. Spannagel, Boffeli & Spannagel, P.C., Dubuque, for
    appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant
    Attorney General, and Ralph Potter, County Attorney, for appellee.
    2
    MANSFIELD, Justice.
    This case requires us to decide when the Sixth Amendment
    permits a witness to appear by live, two-way video instead of testifying in
    person. In a prosecution for four counts of serious injury by operating a
    motor vehicle while intoxicated, see Iowa Code § 707.6A(4) (2013), the
    State moved to allow three out-of-state victims of the car accident and
    three    state-employed    lab    analysts   to   testify   via   a   two-way
    videoconferencing system.        The defendant objected, contending the
    remote testimony would violate his Sixth Amendment right to be
    confronted with the witnesses against him.        The district court held a
    hearing on the motion and granted the State’s request for the witnesses
    to testify remotely.       The defendant filed an application for an
    interlocutory appeal, which we granted.
    Applying Sixth Amendment precedent, we now hold that two-way
    videoconference testimony should not be substituted for in-person
    confrontation absent a showing of necessity to further an important
    public interest. Because the grounds advanced by the State do not reach
    that level, we hold the district court erred in allowing the videoconference
    testimony. Therefore, we reverse the district court’s order and remand
    for further proceedings.
    I. Background Facts and Proceedings.
    According to the minutes of testimony, early in the morning on
    August 13, 2012, the defendant, Zachariah Rogerson, was involved in a
    single-vehicle car accident on Hales Mill Road in Dubuque County.
    Dubuque County sheriff’s deputies responding to the scene encountered
    four other people at the crash site, all of whom were injured.           Kyle
    Rohman suffered a shattered elbow, fractured ribs, and a partially
    collapsed lung.    Kelly Barrett’s sternum was cracked and her back
    3
    fractured.   Jack Cole’s injuries included fractured ribs, a cracked
    collarbone, and a collapsed lung. Terrie Totse was airlifted to University
    of Iowa Hospitals and Clinics for treatment of her broken back and
    shoulder.
    Two of the injured parties identified Rogerson as the driver of the
    wrecked vehicle. Sergeant Pothoff of the Dubuque County Sheriff’s Office
    made contact with Rogerson at the scene of the accident and detected an
    odor of an alcoholic beverage on his breath. Rogerson was transported to
    Mercy Hospital Emergency Room where he was sedated and intubated.
    The   attending   physician,    Dr.   Gudenkauf,    signed    a   “Dead   or
    Unconscious” form indicating that Rogerson was physically unable to
    give consent to a blood alcohol content test. Deputies then obtained a
    blood draw showing Rogerson’s blood alcohol content to be .150.
    The State charged Rogerson with four counts of unintentionally
    causing serious injury by intoxicated use of a motor vehicle. See Iowa
    Code § 707.6A(4).    Rogerson entered a plea of not guilty to all four
    counts. Before trial, the State filed a motion requesting that several of its
    witnesses be permitted to testify remotely via two-way videoconferencing
    technology rather than physically appearing in court. In its motion, the
    State asserted that three of the parties injured in the crash, Rohman,
    Barrett, and Totse, resided outside the state of Iowa and that remote
    video “testimony would greatly expedite and facilitate their participation
    in the Trial.” The motion also sought authorization for three employees
    of the Division of Criminal Investigation (DCI) Criminalistics Laboratory
    4
    to testify remotely because they worked in Ankeny, and their testimony
    was “not dependent upon the specific fact pattern of this case.” 1
    Rogerson opposed the State’s motion, arguing that permitting the
    witnesses to testify via videoconferencing technology would violate his
    Sixth Amendment right to be confronted with the witnesses against him.
    Rogerson explained that video testimony was not an adequate substitute
    for face-to-face confrontation.        He urged the trial court to deny the
    State’s motion because there were no special circumstances justifying
    remote testimony.
    The trial court held a hearing on the motion for distance testimony.
    At the hearing, the State reiterated its arguments that remote
    videoconferencing would facilitate the testimony of its out-of-state
    witnesses and of the state lab technicians. The State posited two-way
    videoconferencing        fulfilled   the     Sixth    Amendment       confrontation
    requirement       because     both     the       defendant   and   witness     could
    simultaneously see and hear each other. The prosecution stated that its
    witnesses had suffered “serious injury” during the accident but did not
    present any evidence from doctors or the witnesses themselves that they
    were unable to travel at the time set for the trial. With respect to the DCI
    employees, the State emphasized the convenience of “them walking down
    the hall and testifying” via videoconference rather than “giving up a day,
    at least coming up from the State lab in [Ankeny]” to testify.
    In opposition to the motion, Rogerson argued that the State had
    failed to show that it was necessary, rather than merely convenient, for
    its witnesses to testify remotely. Rogerson again stated his concern that
    1Ankeny   is approximately 200 miles driving distance from Dubuque, where trial
    would be held.
    5
    permitting videoconference testimony would violate his Sixth Amendment
    confrontation right. He urged the court to adopt a standard requiring
    the State to prove the necessity of distance testimony before allowing
    witnesses to testify via two-way video.
    The trial court granted the State’s motion for distance testimony.
    The court explained,
    The statements to be offered by the Division of Criminal
    Investigation through [its employees] are non-testimonial
    and are factual. Therefore, the use of the ICN2 network for
    the presentation of their testimony is deemed not to violate
    the confrontation[] clause.
    The primary purpose of the confrontation clause is to
    secure the opponent the opportunity of cross-examination.
    The secondary purpose of the confrontation clause is to
    enable the judge and the jury to obtain the elusive and
    incommunicable evidence of a witness’s deportment while
    testifying. To allow the witnesses who are residing outside of
    the State of Iowa with the opportunity to appear on the ICN
    network provides the Defendant with an opportunity for
    cross-examination.        The personal presence of these
    individuals over the network, which transmits their image
    simultaneously, allows the judge and the jurors the
    opportunity to observe the witness during testimony. Any
    non-verbal communication may be therefore viewed during
    this live testimony. It is therefore deemed that the use of the
    ICN network to permit the injured named victims the
    opportunity to remain in a place of comfort during their
    recuperation period to provide testimony in this trial does
    not violate the Defendant’s rights under the confrontation
    clause.
    (Citations omitted.)
    Rogerson applied to this court for permission to bring an
    interlocutory appeal, again asserting that the trial court’s decision to
    permit the State’s witnesses to testify remotely violated his constitutional
    2The  Iowa Communications Network (ICN) is a statewide, governmental network
    that includes a two-way videoconferencing system. See generally Iowa Communications
    Network, http://www.icn.iowa.gov/ (last visited October 13, 2014).
    6
    right to be confronted by the witnesses against him. He contended that
    the district court had applied the wrong standard for determining
    whether two-way video testimony in a criminal trial is permissible. He
    further urged that the State failed to meet its burden under the correct
    standard.
    We granted Rogerson’s application to proceed with an interlocutory
    appeal and retained the case.
    II. Standard of Review.
    We review constitutional claims, including those based on the
    Confrontation Clause, de novo. State v. Schaer, 
    757 N.W.2d 630
    , 633
    (Iowa 2008).
    III. Analysis.
    A. Constitutionality of Two-Way Video Testimony Under the
    Confrontation Clause.           The Sixth Amendment to the United States
    Constitution guarantees that, “[i]n all criminal prosecutions, the accused
    shall enjoy the right . . . to be confronted with the witnesses against
    him.”         U.S. Const. amend. VI. 3         Courts have long construed the
    Confrontation Clause to “guarantee[] the defendant a face-to-face
    meeting with witnesses appearing before the trier of fact.” Coy v. Iowa,
    
    487 U.S. 1012
    , 1016, 
    108 S. Ct. 2798
    , 2801, 
    101 L. Ed. 2d 857
    , 864
    (1988). In Coy, the United States Supreme Court referenced both history
    and precedent, emphasizing the fundamental role that face-to-face
    confrontation has always played in judicial proceedings:
    3Inhis appellate brief, Rogerson also maintains that article 1, section 10 of the
    Iowa Constitution requires reversal of the trial court’s decision. Because we agree with
    Rogerson’s argument under the United States Constitution, we do not need to reach his
    contentions under the Iowa Constitution or determine whether they have been
    preserved.
    7
    The Sixth Amendment’s guarantee of face-to-face
    encounter between witness and accused serves ends related
    both to appearances and to reality.          This opinion is
    embellished with references to and quotations from antiquity
    in part to convey that there is something deep in human
    nature that regards face-to-face confrontation between
    accused and accuser as “essential to a fair trial in a criminal
    prosecution.” What was true of old is no less true in modern
    times.
    
    Id. at 1017,
    108 S. Ct. at 
    2801, 101 L. Ed. 2d at 864
    –65 (quoting Pointer
    v. Texas, 
    380 U.S. 400
    , 404, 
    85 S. Ct. 1065
    , 1068, 
    13 L. Ed. 2d 923
    , 926
    (1965)).
    In subsequent cases, however, the Supreme Court has clarified
    that while the Confrontation Clause does express a strong preference for
    face-to-face confrontation, the latter is not an absolute constitutional
    requirement. See Maryland v. Craig, 
    497 U.S. 836
    , 849–50, 
    110 S. Ct. 3157
    , 3165–66, 
    111 L. Ed. 2d 666
    , 680–82 (1990). This preference for
    face-to-face confrontation “ ‘must occasionally give way to considerations
    of public policy and the necessities of the case.’ ” 
    Id. at 849,
    110 S. Ct.
    at 
    3165, 111 L. Ed. 2d at 681
    (quoting Mattox v. United States, 
    156 U.S. 237
    , 243, 
    15 S. Ct. 337
    , 339–40, 
    39 L. Ed. 409
    , 411 (1895)).
    In Craig, the trial court permitted a child victim of sexual abuse to
    testify via a one-way, closed-circuit television system under which the
    defendant could see and hear the testimony, but the child could neither
    see nor hear the defendant. See 
    id. at 840–42,
    110 S. Ct. at 
    3160–61, 111 L. Ed. 2d at 675
    –76.       The Court set forth a two-prong test to
    determine when face-to-face confrontation with a child victim of alleged
    sexual abuse may be excused and one-way, closed-circuit television
    testimony used in its place. In such cases, the State must prove: (1) that
    the “denial of [face-to-face] confrontation is necessary to further an
    important public policy,” and (2) that “the reliability of the testimony is
    otherwise assured.” 
    Id. at 850,
    110 S. Ct. at 
    3166, 111 L. Ed. 2d at 682
    .
    8
    Under this test, the Craig Court determined that protecting child
    abuse victims from the psychological harm of testifying was a sufficiently
    important   public   policy   concern    to   justify   denying   face-to-face
    confrontation.   
    Id. at 853,
    110 S. Ct. at 
    3167, 111 L. Ed. 2d at 683
    .
    Then, applying the second prong, the Court held that Maryland’s closed-
    circuit video system assured the reliability of remote testimony because
    the witness testified under oath; the defendant was still able to fully
    cross-examine the witness; and the judge, jury, and defendant could see
    the witness’s demeanor and body language as he or she testified. 
    Id. at 857,
    110 S. Ct. at 
    3170, 111 L. Ed. 2d at 686
    . The Court emphasized
    that, although it had approved remote testimony in the Craig scenario,
    substituting video for live testimony in other cases would require a fact-
    specific finding of necessity. 
    Id. at 855,
    110 S. Ct. at 
    3169, 111 L. Ed. 2d at 685
    .
    Since deciding Craig twenty-four years ago, the Supreme Court has
    not further examined the constitutionality of remote video testimony.
    Justice Scalia has twice dissented from the Court’s denials of certiorari
    in cases involving the remote testimony of child abuse witnesses because
    he believed the lower courts had inappropriately expanded the exception
    to face-to-face confrontation. Marx v. Texas, 
    528 U.S. 1034
    , 1034–35,
    
    120 S. Ct. 574
    , 575, 
    145 L. Ed. 2d 436
    , 437 (1999) (mem.) (Scalia, J.,
    dissenting from denial of certiorari) (criticizing the expansion of the
    exception to face-to-face confrontation where the trial court allowed a
    witness who had been abused by the defendant in a prior incident to
    testify remotely upon a finding that there might be emotional trauma);
    Danner v. Kentucky, 
    525 U.S. 1010
    , 1011, 
    119 S. Ct. 529
    , 530, 142 L.
    Ed. 2d 439, 440 (1998) (mem.) (Scalia, J., dissenting from denial of
    certiorari) (disagreeing that a fifteen-year-old witness who expressed only
    9
    some apprehension at testifying in front of her alleged abuser should be
    permitted to testify through video).
    The   Court   also   has   not       had   occasion   to   consider   the
    constitutionality of new types of video technology available to facilitate
    remote testimony. Craig involved a one-way video system in which the
    witness could not see or hear the defendant, but the defendant, judge,
    and jury could see and hear the witness. 497 U.S. at 
    840–42, 110 S. Ct. at 3160
    –61, 
    111 L. Ed. 2d
    at 675–76.                In contrast, two-way video
    systems—like the one at issue in this case—allow both the defendant and
    the witness to see and hear one another simultaneously during the
    testimony.
    Thus, the Supreme Court has not decided what test should govern
    two-way video testimony. See Wrotten v. New York, 
    560 U.S. 959
    , 960,
    
    130 S. Ct. 2520
    , 2520–21, 
    177 L. Ed. 2d 316
    , 316 (2010) (Sotomayor, J.,
    respecting denial of certiorari) (noting some differences between one- and
    two-way video and stating that the Court has not yet decided the
    appropriate standard to govern two-way testimony). The Court did reject
    a proposed change to Federal Rule of Criminal Procedure 26, however,
    that would have permitted unavailable witnesses to testify via two-way
    video.    Order of the Supreme Court, 
    207 F.R.D. 89
    , 91 (2002).            In an
    accompanying statement, Justice Scalia wrote, “I share the majority’s
    view that the Judicial Conference’s proposed Fed. Rule Crim. Proc. 26(b)
    is of dubious validity under the Confrontation Clause of the Sixth
    Amendment to the United States Constitution . . . .” 
    Id. at 93
    (statement
    of Scalia, J.). He added,
    As we made clear in Craig, a purpose of the Confrontation
    Clause is ordinarily to compel accusers to make their
    accusations in the defendant’s presence—which is not
    equivalent to making them in a room that contains a
    10
    television set beaming electrons that portray the defendant’s
    image. Virtual confrontation might be sufficient to protect
    virtual constitutional rights; I doubt whether it is sufficient
    to protect real ones.
    
    Id. at 94
    (citation omitted). Justice Scalia expressed skepticism that two-
    way video technology was constitutionally distinct from the one-way
    system examined in Craig: “I cannot comprehend how one-way
    transmission (which Craig says does not ordinarily satisfy confrontation
    requirements) becomes transformed into full-fledged confrontation when
    reciprocal transmission is added.” 
    Id. Justice Breyer,
    joined by Justice
    O’Connor, dissented from the Court’s refusal to submit the proposed rule
    to Congress. 
    Id. at 96
    (dissenting statement of Breyer, J.).
    Thus, we need to determine here if the standard set forth in Craig
    applies to two-way videoconferencing technology.       If we do apply the
    Craig test, we must assess whether an adequate finding of necessity
    exists in this case to warrant denying face-to-face confrontation.
    Rogerson argues that remote testimony of any kind is less satisfactory
    than face-to-face confrontation and therefore urges that the Craig
    standard should govern both one- and two-way video testimony.           The
    State maintains that two-way videoconferencing is distinct from one-way,
    closed-circuit television and asks that we find two-way video to be an
    adequate substitute for live testimony and therefore not violative of the
    Confrontation Clause.
    Until now, Iowa courts have seemingly used the Craig test only in
    the scenario for which it was designed, i.e., in determining when to
    permit child victims of abuse to testify via one-way video systems. For
    example, in State v. Rupe, we employed the Craig standard and permitted
    a minor sexual abuse victim to testify via closed-circuit television
    because the State presented evidence that the child would suffer
    11
    emotional trauma if he were required to testify in the defendant’s
    presence. 
    534 N.W.2d 442
    , 443–44 (Iowa 1995). Our opinion did not
    mention whether the video system was one- or two-way, and we have not
    addressed the potential constitutional distinctions between one-way and
    two-way video testimony. See 
    id. Other courts,
       however,   have    addressed   the       constitutional
    significance of one- versus two-way video systems under the Sixth
    Amendment.         The vast majority of those courts have chosen to apply
    Craig to both one- and two-way videoconferencing; only the United States
    Court of Appeals for the Second Circuit has formulated a standard
    distinct from Craig’s necessity test to govern the constitutionality of two-
    way video testimony. For example, the Eighth Circuit applied Craig in
    determining the constitutionality of two-way video testimony of child
    abuse victims in United States v. Bordeaux, 
    400 F.3d 548
    , 554 (8th Cir.
    2005).   The court reasoned that although two-way videoconferencing
    might better approximate face-to-face confrontation than one-way video,
    it was nevertheless virtual and less desirable than in-person testimony.
    
    Id. The court
    stated “ ‘confrontation’ via a two-way closed circuit
    television    is     not     constitutionally   equivalent   to    a     face-to-face
    confrontation.” 
    Id. The Bordeaux
    court attributed the problem in part to
    the prevalence of entertainment technology: “Given the ubiquity of
    television, even children are keenly aware that a television image of a
    person (including a defendant in the case of a two-way system) is not the
    person [and] something is lost in the translation.”          
    Id. As the
    Eighth
    Circuit put it,
    The virtual “confrontations” offered by closed-circuit
    television systems fall short of the face-to-face standard
    because they do not provide the same truth-inducing effect.
    The Constitution favors face-to-face confrontations to reduce
    12
    the likelihood that a witness will lie. “It is always more
    difficult to tell a lie about a person ‘to his face’ than ‘behind
    his back.’ ” . . . [T]he touchstone for deciding whether a
    “confrontation” satisfies the Constitution is whether it is
    likely to lead a witness to tell the truth to the same degree
    that a face-to-face confrontation does, and in this respect
    two-way systems are like one-way systems: they both fall
    short.
    
    Id. (quoting Coy,
    487 U.S. at 
    1019, 108 S. Ct. at 2802
    , 101 L. Ed. 2d at
    866). Because of its concerns about virtual confrontation of any kind,
    the Eighth Circuit chose to apply the Craig standard to two-way as well
    as one-way video systems. 
    Id. at 554–55.
            The Eleventh Circuit also followed Craig to invalidate the use of
    two-way video testimony for witnesses who resided in Australia and
    refused to travel to the United States for trial. United States v. Yates,
    
    438 F.3d 1307
    , 1315–16 (11th Cir. 2006).           Like the Eighth Circuit, it
    expressed concern that virtual confrontation, even through a two-way
    system, fell short of the Confrontation Clause’s promise:
    The simple truth is that confrontation through a video
    monitor is not the same as physical face-to-face
    confrontation. . . .    [T]he two are not constitutionally
    equivalent. The Sixth Amendment’s guarantee of the right to
    confront one’s accuser is most certainly compromised when
    the confrontation occurs through an electronic medium.
    
    Id. at 1315
    (citation omitted).     In applying the first prong of the Craig
    test,   the   court   held   that   the    government’s   stated   interests   of
    “expeditiously and justly resolving the case” and “providing the fact-
    finder with crucial evidence” were not necessary to further an important
    public interest. 
    Id. at 1315
    –16. The court thus ruled that the use of
    two-way video testimony violated the defendant’s confrontation right and
    ordered a new trial. 
    Id. at 1319.
    Several state appellate courts have also utilized Craig as the
    standard for assessing the constitutionality of two-way video testimony.
    13
    In a recent case, the New Mexico Court of Appeals held that allowing a
    state-employed scientific analyst to testify by two-way video about the
    defendant’s blood alcohol content violated the Confrontation Clause
    because the trial court had not determined that such remote testimony
    was necessary to further an important public interest. State v. Smith,
    
    308 P.3d 135
    , 136 (N.M. Ct. App. 2013). The Smith court agreed with the
    Eighth Circuit that the “[v]irtual presence created by television falls short
    of physical presence in satisfying the elements of confrontation.” 
    Id. at 137.
    Similarly, the Superior Court of Pennsylvania has applied Craig to
    hold that allowing an imprisoned witness to testify via two-way
    videoconferencing technology without a finding of necessity violates the
    Confrontation Clause. Commonwealth v. Atkinson, 
    987 A.2d 743
    , 751–
    52 (Pa. Super. Ct. 2009). The court noted the opinions of the Eighth and
    Eleventh Circuits that two-way video testimony should be subjected to
    the same high standard as one-way testimony. 
    Id. at 750
    (citing 
    Yates, 438 F.3d at 1313
    –14).
    The Florida Supreme Court likewise declined to allow two-way
    video testimony in lieu of face-to-face confrontation without a showing of
    necessity. Harrell v. State, 
    709 So. 2d 1364
    , 1368–69 (Fla. 1998). Much
    as the State urges us to do in the present case, the State of Florida asked
    the court to permit two-way video testimony in lieu of live testimony
    whenever the prosecution desired, calling it “the equivalent of physical,
    face-to-face confrontation.”   
    Id. at 1368.
       Declining to adopt such a
    blanket rule, the court instead employed Craig’s two-part test.          
    Id. at 1369.
    It stated,
    We are unwilling to develop a per se rule that would allow
    the vital fabric of physical presence in the trial process to be
    replaced at any time by an image on a screen. . . . [W]e do
    not conclude that virtual presence is the equivalent of
    14
    physical presence for the purposes of the Confrontation
    Clause.
    
    Id. at 1368–69.
       The Harrell court ultimately found adequate state
    interests justifying two-way video testimony because the Argentine
    witnesses were beyond the court’s subpoena power, they were essential
    to the case, and one of the witnesses was too ill to make the trip to the
    United States. 
    Id. at 1369–70.
    The Michigan Court of Appeals similarly adopted Craig as the test
    to determine when two-way video testimony infringes a defendant’s
    confrontation right. People v. Buie, 
    775 N.W.2d 817
    , 825 (Mich. Ct. App.
    2009).    Citing the Eighth Circuit’s reasoning in Bordeaux, the court
    noted “ ‘the intangible but crucial differences between a face-to-face
    confrontation and a ‘confrontation’ that is electronically created by
    cameras, cables, and monitors.’ ”    
    Id. (quoting Bordeaux,
    400 F.3d at
    554–55). It concluded that the state had not given a justification for why
    its expert witnesses needed to testify remotely and remanded the case for
    the trial court to make a necessity determination in line with Craig. 
    Id. at 826.
    In addition to the foregoing courts that have expressly considered
    the differences between one- and two-way video systems and determined
    that the Craig standard should govern both, a number of other courts
    have applied Craig to both types of systems without separate analysis.
    See, e.g., United States v. Weekley, 
    130 F.3d 747
    , 753–54 (6th Cir. 1997)
    (applying Craig’s necessity standard to a two-way video system without
    discussion of the one-way/two-way distinction); United States v. Garcia,
    
    7 F.3d 885
    , 887–88 (9th Cir. 1993) (same); United States v. Farley, 
    992 F.2d 1122
    , 1124–25 (10th Cir. 1993) (same); State v. Stock, 
    256 P.3d 899
    , 905 (Mont. 2011) (same); People v. Beltran, 
    970 N.Y.S.2d 289
    , 296
    15
    (App. Div. 2013) (same); State v. Seelig, 
    738 S.E.2d 427
    , 434 (N.C. Ct.
    App. 2013) (same); Gonzales v. State, 
    818 S.W.2d 756
    , 764 (Tex. Crim.
    App. 1991) (same); Johnson v. Commonwealth, 
    580 S.E.2d 486
    , 491 (Va.
    Ct. App. 2003) (same); Bush v. State, 
    193 P.3d 203
    , 215–16 (Wyo. 2008)
    (same).     A federal trial court in Washington was asked to assess the
    constitutionality of allowing a foreign witness in a drug smuggling case to
    testify by two-way videoconference.               United States v. Rosenau, 870 F.
    Supp. 2d 1109, 1112 (W.D. Wash. 2012).                    The court applied Craig
    without specifically discussing whether it should govern two-way as
    opposed to one-way video testimony. 
    Id. at 1112–13.
    The court noted
    that the two-way nature of the video system was an added assurance of
    adequate     confrontation,      but    nevertheless      required     the    state   to
    demonstrate video testimony was necessary to further an important
    public interest in accordance with the Craig test. 
    Id. at 1113.
    In contrast to the numerous courts that have applied the Craig test
    to two-way as well as one-way videoconferencing technology, the Second
    Circuit alone has declined to require a finding of Craig-based necessity
    before allowing witnesses to testify via two-way video. United States v.
    Gigante, 
    166 F.3d 75
    , 81 (2d. Cir. 1999). 4 In Gigante, the Second Circuit
    upheld the trial court’s decision to allow an ill witness to testify remotely
    via two-way videoconference.           
    Id. Rather than
    assessing the need for
    remote technology under Craig, the Second Circuit formulated a test
    based upon the federal standard for when depositions may be used to
    4A  Minnesota case appeared to read Craig and Gigante as consistent with one
    another. State v. Sewell, 
    595 N.W.2d 207
    , 212 (Minn. Ct. App. 1999). The court stated
    that to allow a witness to testify via video technology, a court must first determine the
    witness cannot appear in person and show the necessity of his testimony, 
    id. (citing Craig,
    497 U.S. at 
    850, 110 S. Ct. at 3166
    , 
    111 L. Ed. 2d
    at 681–82), and then assess
    the reliability of the testimony using the factors set forth in 
    Gigante, 166 F.3d at 80
    ,
    595 N.W.2d at 212–13.
    16
    perpetuate testimony for trial purposes.               
    Id. (citing Fed.
    R. Crim. P.
    15(a)). 5   The court reasoned that two-way closed-circuit television
    “afforded greater protection of Gigante’s confrontation rights than would
    have been provided by a Rule 15 deposition,” since the witness actually
    had to testify live before the jury (although not in their actual presence).
    
    Id. Therefore, the
    Second Circuit held that “[u]pon a finding of
    exceptional circumstances, . . . a trial court may allow a witness to testify
    via two-way closed-circuit television when this furthers the interest of
    justice.” 
    Id. The court
    determined that witness’s terminal illness and his
    status in the witness protection program satisfied the “exceptional
    circumstances” requirement and therefore upheld the trial court’s use of
    two-way video testimony. 
    Id. at 81–82.
    The Gigante court listed what it saw as the four primary benefits of
    face-to-face confrontation: “1) the giving of testimony under oath; 2) the
    5Federal   Rule of Criminal Procedure 15(a)(1) provides in part:
    A party may move that a prospective witness be deposed in order to
    preserve testimony for trial. The court may grant the motion because of
    exceptional circumstances and in the interest of justice.
    We have a similar rule in Iowa:
    Whenever the interests of justice and the special circumstances of a case
    make necessary the taking of the testimony of a prospective witness not
    included in rule 2.13(1) or 2.13(3), for use at trial, the court may upon
    motion of a party and notice to the other parties order that the testimony
    of the witness be taken by deposition . . . . For purposes of this
    subsection, special circumstances shall be deemed to exist and the court
    shall order that depositions be taken only upon a showing of necessity
    arising from either of the following:
    ....
    (2) Other just cause necessitating the taking of the deposition.
    Iowa R. Crim. P. 2.13(2)(a); see generally State v. Rainsong, 
    807 N.W.2d 283
    (Iowa 2011)
    (discussing this provision).
    It should be noted, of course, that when such a deposition is taken, the
    defendant normally is present. See Fed. R. Crim. P. 15(c); State v. Turner, 
    345 N.W.2d 552
    , 559 (Iowa Ct. App. 1983).
    17
    opportunity for cross-examination; 3) the ability of the fact-finder to
    observe demeanor evidence; and 4) the reduced risk that a witness will
    wrongfully implicate an innocent defendant when testifying in his
    presence.” 
    Id. at 80.
    The court found these four components satisfied by
    the two-way system because the witness was sworn, he was subject to
    cross-examination, he testified in full video-view of the jury and judge,
    and he testified with the defendant watching. 
    Id. Upon our
    review, we agree with the vast majority of courts that
    have considered the issue and determined that Craig’s test should apply
    to two-way as well as one-way video testimony.           Concededly, two-way
    videoconferencing technology available today more closely approximates
    face-to-face   confrontation   than   one-way   video.      But   despite   its
    preferability over one-way transmission, we do not believe two-way
    videoconferencing is constitutionally equivalent to the face-to-face
    confrontation envisioned by the Sixth Amendment. In Craig, the Court
    stated that it is
    [t]he combined effect of these elements of confrontation—
    physical presence, oath, cross-examination, and observation
    of demeanor by the trier of fact—[that] serves the purposes of
    the Confrontation Clause by ensuring that evidence admitted
    against an accused is reliable and subject to the rigorous
    adversarial testing that is the norm of Anglo-American
    criminal 
    proceedings. 497 U.S. at 846
    , 110 S. Ct. at 
    3163, 111 L. Ed. 2d at 678
    –79 (emphasis
    added). Only the combination of all of these elements of confrontation—
    including face-to-face testimony—fully protects a defendant’s Sixth
    Amendment rights.
    Our founders presumably believed that accusers would be more
    reluctant to make false accusations when they were in the personal
    presence of the accused. “A witness ‘may feel quite differently when he
    18
    has to repeat his story looking at the man whom he will harm greatly by
    distorting or mistaking the facts.’ ” 
    Coy, 487 U.S. at 1019
    , 108 S. Ct. at
    
    2802, 101 L. Ed. 2d at 866
    (quoting Zechariah Chafee, Jr., The Blessings
    of Liberty 35 (1956)). Technology has changed since the late eighteenth
    century, but human nature has not.        This social pressure to tell the
    truth can be diminished when the witness is far away rather than
    physically present with the defendant in the courtroom. The Supreme
    Court has expressed a strong preference for in-person encounters
    between witnesses and defendants that no form of virtual testimony can
    fully satisfy.   Two-way video technology may permit the witness and
    defendant to see one another, but the screen and the physical distance
    between the two tend to reduce the truth-inducing effect of the
    confrontation.    The Supreme Court has recognized “that face-to-face
    confrontation enhances the accuracy of factfinding by reducing the risk
    that a witness will wrongfully implicate an innocent person.” 
    Craig, 497 U.S. at 846
    , 110 S. Ct. at 
    3164, 111 L. Ed. 2d at 679
    . Remote testimony
    of any kind should not be lightly substituted in its place.
    In addition to having the right to be confronted by witnesses
    against him, the criminal defendant is also entitled to be present for all
    critical phases of the proceedings.    United States v. Gagnon, 
    470 U.S. 522
    , 526, 
    105 S. Ct. 1482
    , 1484, 
    84 L. Ed. 2d 486
    , 490 (1985); see also
    Illinois v. Allen, 
    397 U.S. 337
    , 338, 
    90 S. Ct. 1057
    , 1058, 
    25 L. Ed. 2d 353
    , 356 (1970) (“One of the most basic of the rights guaranteed by the
    Confrontation Clause is the accused’s right to be present in the
    courtroom . . . .”). The Supreme Court has explained that the right to be
    present is grounded in both the Confrontation Clause and the Due
    Process Clause:
    19
    [W]e have recognized that [the right to presence] is protected
    by the Due Process Clause in some situations where the
    defendant is not actually confronting witnesses or evidence
    against him. . . . [A] defendant has a due process right to be
    present at a proceeding “whenever his presence has a
    relation, reasonably substantial, to the fulness of his
    opportunity to defend against the charge. . . . [T]he presence
    of a defendant is a condition of due process to the extent
    that a fair and just hearing would be thwarted by his
    absence . . . .”
    
    Gagnon, 470 U.S. at 526
    , 105 S. Ct. at 
    1484, 84 L. Ed. 2d at 490
    (quoting Snyder v. Massachusetts, 
    291 U.S. 97
    , 105–06, 107–08, 
    54 S. Ct. 330
    , 332, 333, 
    78 L. Ed. 674
    , 678, 679 (1934)).
    Like the confrontation right, the related right to be present ensures
    the integrity of criminal proceedings because the defendant’s presence
    impresses the gravity of the proceedings upon the participants.                See
    Crosby v. United States, 
    506 U.S. 255
    , 259, 
    113 S. Ct. 748
    , 751, 122 L.
    Ed. 2d 25, 31 (1993) (“This [common law right to be present] was
    premised on the notion that a fair trial could take place only if the jurors
    met the defendant face-to-face and only if those testifying against the
    defendant did so in his presence.”).        Yet this right to be present loses
    some meaning if witnesses are permitted to appear on a video monitor.
    We therefore find that in-person testimony should be excused only in the
    rare situations recognized in Craig.
    Hence,   before   permitting     a    witness   to   testify   via   two-way
    videoconference, the court must make a case-specific determination that
    the denial of the defendant’s confrontation right is necessary to further
    an important public interest. If the court finds such an interest, it must
    assure the reliability of the remote testimony.        See 
    Craig, 497 U.S. at 851
    , 110 S. Ct. at 
    3166, 111 L. Ed. 2d at 682
    .
    Here, the State not only would have us depart from Craig, it wants
    to go beyond Gigante. It contends that two-way video is constitutionally
    20
    equivalent to live, in-person confrontation and asks us to declare the two
    interchangeable. No court to our knowledge has gone so far as to adopt
    a rule permitting two-way videoconferencing testimony simply upon the
    government’s request.       Even the Gigante court, which rejected the
    application of Craig to two-way video testimony, still required a finding of
    “exceptional circumstances” before excusing face-to-face confrontation.
    
    Gigante, 166 F.3d at 81
    .       While permitting two-way video testimony
    under the facts of that case, the court cautioned that “the use of remote,
    closed-circuit television testimony must be carefully circumscribed.” 
    Id. at 80.
    The State’s proposal also presents logistical problems. Although a
    witness can be placed under oath when testifying remotely, the State
    does not explain how a court in one state could hold a recalcitrant
    witness in contempt when he or she is located hundreds of miles away in
    another jurisdiction.    See, e.g., United States v. Sanford, Ltd., 860 F.
    Supp. 2d 1, 10 (D.D.C. 2012) (“[F]oreign depositions are suspect and,
    consequently, not favored, due, in significant part, to the fact that the
    witness is not subject to the imposition of sanctions of perjury or
    contempt for testifying falsely or evasively.” (Internal quotation marks
    and citations omitted.)). Impeachment of a witness with documents or
    prior statements also becomes more cumbersome and less attention-
    grabbing when performed through a video connection.           Furthermore,
    technological limitations could prevent the jury from           adequately
    observing the witness’s demeanor.
    We are aware that technology evolves and improves all the time.
    Some day virtual electronic presence in the courtroom may become an
    adequate constitutional substitute for actual physical presence. But we
    are not there yet. Because face-to-face confrontation is constitutionally
    21
    preferable to remote testimony of any kind, we believe Craig applies to
    two-way video testimony, which should be acceptable only upon a
    showing of necessity to further an important public interest and only
    when the testimony’s reliability can be otherwise assured.
    B. Applying the Craig Standard Here. Guided by Craig, we turn
    now to whether the justifications shown by the record in this case qualify
    as sufficiently important to allow the State to present remote video
    testimony. This is the necessity prong of the Craig test, and we believe it
    is sufficient to resolve the present dispute.    As recognized in Craig,
    protecting child victims from the trauma of testifying in front of their
    alleged abusers can justify remote testimony in certain cases. Craig, 497
    U.S. at 
    853, 110 S. Ct. at 3167
    , 
    111 L. Ed. 2d
    at 683; see also 
    Rupe, 534 N.W.2d at 444
    .
    Illness has been another justification that courts have found
    sufficient to satisfy the Craig “necessity” prong. For example, in Bush,
    the witness in question lived out of the state and had suffered congestive
    heart failure, rendering him unable to appear personally at 
    trial. 193 P.3d at 214
    .     The court concluded that permitting the seriously ill
    witness’s “testimony via video conference was necessary to further the
    important public policy of preventing further harm to his already serious
    medical condition.”   
    Id. at 215–16.
        Additionally, the North Carolina
    Court of Appeals approved remote testimony of a witness who suffered
    such a severe panic attack before the trial that he was consequently
    unable to travel. 
    Seelig, 738 S.E.2d at 435
    . Similarly, the witness in
    United States v. Benson was “elderly and infirm” and the Sixth Circuit
    allowed her to testify via videoconferencing technology. 79 F. App’x 813,
    820–21 (6th Cir. 2003).
    22
    Courts vary on whether the fact that a witness resides in a foreign
    country beyond the state’s subpoena power is an adequate justification
    for remote testimony.        Most seem to require some impediment to
    testifying beyond mere unwillingness to travel. In Yates, the witnesses
    lived in Australia and refused to come to the United States to testify. 
    See 438 F.3d at 1310
    . The Eleventh Circuit did not find the state’s interests
    in “expeditiously and justly resolving the case” and “providing the fact-
    finder    with   crucial   evidence”    enough   to   meet   Craig’s   necessity
    requirement.     
    Id. at 1315
    –16.       In contrast, the Harrell court did find
    adequate justification for remote testimony when the foreign witnesses
    were beyond the court’s subpoena power and one was also ill. 
    See 709 So. 2d at 1369
    –70. Similarly, in Rosenau, a Canadian court order had
    prevented the witness from entering the United States, and the federal
    district court approved of his testimony via videoconference. See 870 F.
    Supp. 2d at 1113.
    There is also a general consensus among courts that mere
    convenience, efficiency, and cost-saving are not sufficiently important
    public necessities to justify depriving a defendant of face-to-face
    confrontation. In Smith, the trial court had permitted a state-employed
    lab analyst to testify via two-way video about the defendant’s blood
    alcohol content at the time of his 
    arrest. 308 P.3d at 136
    .     The New
    Mexico Court of Appeals reversed, stating “that the witness’s convenience
    or the convenience of his employer are not situations that demonstrate
    necessity” sufficient to overcome the Confrontation Clause’s preference
    for face-to-face testimony.      
    Id. at 138.
        Similarly, the Pennsylvania
    Superior Court held that an incarcerated witness could not be permitted
    to testify via two-way video merely because the state would have to
    arrange and pay for prisoner transport. 
    Atkinson, 987 A.2d at 751
    . That
    23
    court stated that although video testimony might be logistically easier,
    “convenience and cost-saving are not sufficient reasons to deny
    constitutional rights.” 
    Id. In this
    case, the State represented at the hearing on its motion
    that the witnesses who were involved in the car crash resided a
    significant distance from Iowa and had suffered serious injuries. 6 The
    State did not present evidence that the witnesses were beyond the court’s
    subpoena power or that they were unable to travel because of their
    injuries. Under Craig and the other precedents discussed above, this is
    insufficient. The State has not shown that the witnesses cannot appear
    in person or even that personal appearance would cause severe stress.
    Concerning the DCI lab employees, the State did not even argue
    that they resided out of state or had suffered injuries. Rather, the State’s
    justification below was that their testimony was not “accusatory.”                 On
    appeal, the State no longer advances that argument. 7 In effect, it simply
    maintains it would save time and money if these witnesses did not have
    to attend trial in person. The present situation is analogous to Smith,
    where the New Mexico Court of Appeals held a state lab analyst could not
    testify via two-way video simply because it was more convenient.                    In
    sum, the State’s justifications of mere distance, cost, and efficiency are
    insufficient to overcome Rogerson’s Sixth Amendment rights, and there is
    6According to the State, one lived in New Orleans, Louisiana, one lived in Key
    West, Florida, and a third previously resided in West Virginia. They were visiting Iowa
    when the accident occurred.
    7The  United States Supreme Court has dispensed with the notion that some
    witnesses for the prosecution are exempt from the Confrontation Clause. See Melendez-
    Diaz v. Massachusetts, 
    557 U.S. 305
    , 313–14, 
    129 S. Ct. 2527
    , 2533–34, 
    174 L. Ed. 2d 314
    , 323 (2009) (“Contrary to respondent’s assertion, there is not a third category of
    witnesses, helpful to the prosecution, but somehow immune from confrontation.”). The
    DCI employees in the present case are witnesses for the prosecution and are, therefore,
    subject to the Confrontation Clause.
    24
    no evidence the witnesses are unable to travel. We therefore agree with
    Rogerson that the district court’s order allowing the witnesses to testify
    by two-way teleconferencing should be reversed.
    IV. Conclusion.
    For the foregoing reasons, we hold the standard set forth in
    Maryland v. Craig governs the constitutionality under the Sixth
    Amendment of two-way videoconferencing as a substitute for in-person
    testimony. We further hold the State failed to meet the necessity prong
    of that standard.    Accordingly, we reverse the district court’s order
    granting the State’s motion for distance testimony and remand the case
    for further proceedings.
    REVERSED AND REMANDED.
    All justices concur except Hecht, J., who concurs specially.
    25
    #13–1329, State v. Rogerson
    HECHT, Justice (concurring specially).
    This appeal presents two essential questions. First, did the State
    show exceptional circumstances supporting the district court’s ruling
    that four of the State’s witnesses could testify without being physically
    present in the courtroom (the “necessity question”)?           Second, if
    exceptional circumstances have been shown, did the State establish the
    technology it proposed to use would adequately protect Rogerson’s right
    of confrontation (the “reliability question”)?    Although my colleagues
    suggest they decide only the necessity question in this case, their opinion
    expresses views about reliability with which I am not prepared to concur.
    I agree the State made no attempt to show necessity, and I agree the
    district court’s order should be reversed for that reason.         I write
    separately, however, because I do not share my colleagues’ conclusion
    that current two-way video technology is inadequate and cannot
    accomplish the constitutional objectives of confrontation.
    The text of the Sixth Amendment does not expressly require
    confrontation be achieved with testimony by witnesses who are
    physically present in the courtroom.         U.S. Const. amend. VI.    The
    drafters of the Sixth Amendment likely did not contemplate the
    possibilities presented by present-day technology; they were concerned
    principally with convictions by affidavit.    Mattox v. United States, 
    156 U.S. 237
    , 242, 
    15 S. Ct. 337
    , 339, 
    39 L. Ed. 409
    , 411 (1895) (“The
    primary object of the [Confrontation Clause] was to prevent depositions
    or ex parte affidavits . . . being used against the prisoner in lieu of
    personal examination and cross-examination of the witness . . . .”). The
    notion witnesses should be physically present in the courtroom springs
    at least in part from courts’ linguistic analysis of the word “confront.”
    
    26 Md. v
    . Craig, 
    497 U.S. 836
    , 845, 
    110 S. Ct. 3157
    , 3163, 
    111 L. Ed. 2d
    666, 678 (1990) (“The word ‘confront,’ after all, also means a clashing
    of forces or ideas, thus carrying with it the notion of adversariness.”);
    Coy v. Iowa, 
    487 U.S. 1012
    , 1016, 
    108 S. Ct. 2798
    , 2800, 
    101 L. Ed. 2d 857
    , 864 (1988) (“[T]he word ‘confront’ ultimately derives from the [Latin]
    prefix ‘con-’ (from ‘contra’ meaning ‘against’ or ‘opposed’) and the noun
    ‘frons’ (forehead).”); California v. Green, 
    399 U.S. 149
    , 175, 
    90 S. Ct. 1930
    , 1944, 
    26 L. Ed. 2d 489
    , 506 (1970) (Harlan, J., concurring)
    (“Simply as a matter of English the clause may be read to confer . . . a
    right to meet face to face all those who appear and give evidence at
    trial.”).
    Going beyond linguistics, the Supreme Court has concluded a
    defendant’s Sixth Amendment right of confrontation does not establish
    an absolute requirement the accuser be physically present in the
    courtroom when testimony is presented in a criminal case. Craig, 497
    U.S. at 
    853, 110 S. Ct. at 3167
    , 
    111 L. Ed. 2d
    at 683.         The goal of
    confrontation—assuring “the reliability of evidence”—can be achieved
    without an accuser’s physical presence in the courtroom if four
    conditions are met: (1) the accuser must testify under oath, (2) the
    defendant must have the opportunity to cross-examine the accuser,
    (3) the jury must be able to observe the demeanor of the accuser while
    testimony is given, and (4) the accuser must testify in the presence of the
    accused. 
    Id. at 845–46,
    110 S. Ct. at 
    3163, 111 L. Ed. 2d at 678
    . Craig
    established that a youthful accuser’s presence can be accomplished
    under exceptional circumstances consistent with the Confrontation
    Clause through the use of closed-circuit technology permitting the
    defendant and fact finder(s) to observe the accuser during her testimony,
    but not permitting the accuser to see the defendant.      
    Id. at 857,
    110
    27
    S. Ct. at 
    3170, 111 L. Ed. 2d at 686
    . As my colleagues recognize, two-
    way video technology allows the witness and the defendant to see one
    another. Accordingly, the form of transmission the State proposed to use
    in this case is “very different from th[e closed-circuit system] used in . . .
    Craig.”   See Order of the Supreme Court, 
    207 F.R.D. 89
    , 101 (2002)
    (advisory committee’s note to proposed Fed. R. Crim. P. 26(b), reprinted
    as an appendix to the statement of Breyer, J.).
    Whether a defendant’s right of confrontation is adequately
    protected when witnesses testify via two-way video technology turns
    largely, in my view, on fact determinations. I believe that in this case,
    the question whether the sufficiency of the technology could have been
    shown should be left completely open. The answer to this question in a
    future case should be informed in part by the latest social science
    addressing the extent, if any, to which the actual physical presence of a
    witness in a courtroom produces a sufficiently enhanced opportunity for
    confrontation when compared to presence achieved through two-way
    video technology. Indeed, the answer to this fact question is essential, in
    my view, to a determination of whether the difference between actual and
    virtual presence supports the continued maintenance of a strict
    constitutional distinction.
    I, of course, concede my colleagues’ observation that virtual
    presence is not “the same” as physical presence.         However, I believe
    social science should inform our answer to the question whether existing
    state-of-the-art technology can achieve the goal of confrontation through
    an accuser’s virtual presence.     If technology has evolved to the point
    where real-time video testimony neither significantly diminishes the fact
    finders’ ability to assess credibility nor lessens accusers’ motivation to
    tell the truth, courts should not cling to old forms for consistency’s sake.
    28
    I acknowledge some scholars have suggested we simply do not know the
    answers to these questions.          See Richard D. Friedman, Remote
    Testimony, 35 U. Mich. J.L. Reform 695, 702–03 (2002) (“I do not know of
    any extant studies that can give substantial comfort on [the effect of
    remote testimony].”); Nancy Gertner, Videoconferencing: Learning Through
    Screens, 12 Wm. & Mary Bill Rts. J. 769, 787 (2004) [hereinafter Gertner]
    (calling “for more studies of [videoconferencing’s] significance in enabling
    jurors to evaluate testimony”); Fredric I. Lederer, The Road to the Virtual
    Courtroom?     A   Consideration    of       Today’s—and   Tomorrow’s—High-
    Technology Courtrooms, 
    50 S.C. L
    . Rev. 799, 820 (1999) [hereinafter
    Lederer] (“[W]e lack any experimental evidence that might indicate
    whether remote witnesses are more or less likely to tell the truth than in-
    court    witnesses.”);   Marc   Chase    McAllister,   Two-Way   Video   Trial
    Testimony and the Confrontation Clause: Fashioning a Better Craig Test in
    Light of Crawford, 34 Fla. St. U. L. Rev. 835, 875 (2007) [hereinafter
    McAllister] (“[T]he precise effects of virtual confrontation are still
    unknown.”).     Yet, years have passed since those scholars weighed in.
    The advance of technology continues.             More recent social science
    scholarship bearing on the subject could inform a future decision on
    these important questions.
    My colleagues posit that the “social pressure to tell the truth can
    be diminished when the witness is far away rather than physically
    present with the defendant in the courtroom,” and assert “the screen and
    the physical distance between the [witness and the defendant] tend to
    reduce the truth-inducing effect of the confrontation.”       These intuitive
    assumptions bearing on the assessment of reliability may be true, but
    maybe not. Jeremy A. Blumenthal, A Wipe of the Hands, a Lick of the
    Lips: The Validity of Demeanor Evidence in Assessing Witness Credibility,
    29
    
    72 Neb. L
    . Rev. 1157, 1173–74 (1993) (asserting the profound effect of
    confrontation and the difficulty of lying to someone’s face are “accepted,
    but unfounded” premises).         More importantly, however, the majority’s
    statement of these assumptions suggests—at least implicitly—that my
    colleagues are addressing more than the necessity question in this case.
    I do not presume my colleagues’ assumptions are true or false. I
    would prefer instead to determine such matters based upon a record
    revealing the fullness of witnesses’, defendants’, and fact finders’
    perceptions permitted by two-way technology utilized or proposed for use
    in a particular case.         Assumptions supporting the requirement of
    witnesses’ physical presence in the courtroom—and eschewing evidence
    presented via two-way video technology—should be tested against expert
    opinions from the social sciences on the question whether the purposes
    of confrontation are in fact significantly advanced by physical presence. 8
    Courts have persisted in viewing witnesses’ physical presence as a
    core feature of confrontation, but they have offered little more than
    intuition in support.      See, e.g., 
    Craig, 497 U.S. at 846
    , 110 S. Ct. at
    
    3164, 111 L. Ed. 2d at 679
    (“[F]ace-to-face confrontation . . . reduc[es]
    the risk that a witness will wrongfully implicate an innocent person.”);
    
    Coy, 487 U.S. at 1019
    , 108 S. Ct. at 
    2802, 101 L. Ed. 2d at 866
    (“It is
    always more difficult to tell a lie about a person ‘to his face’ than ‘behind
    his back.’ ”); United States v. Bordeaux, 
    400 F.3d 548
    , 554 (8th Cir.
    2005) (relying on “intangible elements” in concluding both that two-way
    confrontation “is not constitutionally equivalent to a face-to-face
    8Some   studies suggest that, “as a general rule, people are poor human lie
    detectors”—perhaps no matter the medium. Gertner, 12 Wm. & Mary Bill Rts. J. at 785
    n.93 (collecting studies); see also Lederer, 
    50 S.C. L
    . Rev. at 820 (“Four experiments
    have indicated that jurors perceive remote witnesses just as they perceive in-court
    witnesses, neither better nor worse.”).
    30
    confrontation” and that two-way systems “fall short”). I would prefer to
    have evidence bearing upon several questions before deciding whether
    virtual presence can satisfy—beyond the limited circumstances present
    in Craig—the essential purposes of the confrontation right.                        Does
    available technology permit the witness and the defendant a sufficient
    view of each other to achieve the purposes of face-to-face confrontation?
    Does available technology allow fact finders a sufficient opportunity to
    hear and see the witness in assessing credibility? 9 Do witnesses sworn
    to tell the truth really tend to feel a greater motivation for honesty when
    they are physically present in the courtroom with the defendant than
    when they are able to see and experience the defendant’s presence on a
    monitor as they testify via two-way video technology? To what extent do
    the “trappings” or symbols of the courtroom tend to emphasize the
    solemnity of judicial proceedings and increase the likelihood that
    witnesses will tell the truth when they testify in person?                   If—as we
    sometimes      assume—there         is   a    correlation    between      the   factors
    emphasizing the solemnity of the proceedings and witnesses’ motivation
    toward honesty, should we really believe those factors cannot be
    effectively communicated to witnesses through currently available two-
    way video technology?
    The State provided no evidence in this case illuminating the court’s
    answers to these questions. Accordingly, I associate myself—for now—
    with my colleagues’ conclusion that “[r]emote testimony of any kind
    9Some   have posited that a monitor “necessarily limits the jurors’ ability to see
    the witness’s body.” Gertner, 12 Wm. & Mary Bill Rts. J. at 786. While this ability is
    an important aspect of determining credibility because body language may be less
    controllable than facial expressions and therefore deemed an indicator of possible
    deception, see 
    id., I leave
    room for the possibility the court could consider camera
    angles and capacity in deciding the adequacy of confrontation permitted by two-way
    video technology.
    31
    should not be lightly substituted” in place of live testimony by witnesses
    physically present in the courtroom.              However, I would not assume or
    decide without more evidence that effective confrontation cannot be
    provided in criminal cases through currently available two-way video
    technology. 10
    Courts must maintain their relevance over time by utilizing
    emerging technologies consistent with constitutional purposes, rather
    than steadfastly adhering to the way it used to be. See Harrell v. State,
    
    709 So. 2d 1364
    , 1372 (Fla. 1998) (“[C]ourtrooms . . . cannot sit idly by,
    in a cocoon of yesteryear, while society and technology race [forward].”).
    Although courts have interpreted the Confrontation Clause as requiring
    in-person     testimony      except    in        exceptional   circumstances,     this
    interpretation was developed long before technology allowed excellent
    two-way video transmission. Similarly, although my colleagues allow for
    the possibility that virtual presence will someday be sufficient for
    purposes of the Confrontation Clause, they conclude “we are not there
    yet.”   Lacking sufficient information, I am not prepared to join in that
    conclusion today.
    I agree the State did not prove necessity, so the district court’s
    order must be reversed. However, I would allow for the possibility that,
    with current technology and reasonable precautions employed by
    counsel and carefully enforced by courts, virtual presence might permit
    constitutionally sufficient confrontation.
    10Ibelieve the proposed (but rejected) Federal Rule of Criminal Procedure 26(b)
    had attractive features. See Order of the Supreme 
    Court, 207 F.R.D. at 99
    –104. It
    would have required a showing of necessity as a condition of presenting testimony
    through two-way video. See 
    id. at 99
    (allowing video testimony only if “the requesting
    party establishes exceptional circumstances”). Upon a showing of necessity, the court
    would assess the adequacy of the proposed technology and impose any procedural
    precautions it deems appropriate. 
    Id. (requiring “appropriate
    safeguards”); see also
    McAllister, 34 Fla. St. U. L. Rev. at 870–71 (proposing a test for permitting two-way
    video testimony that includes safeguards and technical requirements).