People of Michigan v. Arthur Larome Jemison ( 2020 )


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  •                                                                                       Michigan Supreme Court
    Lansing, Michigan
    Syllabus
    Chief Justice:               Justices:
    Bridget M. McCormack        Stephen J. Markman
    Brian K. Zahra
    Chief Justice Pro Tem:
    Richard H. Bernstein
    David F. Viviano            Elizabeth T. Clement
    Megan K. Cavanagh
    This syllabus constitutes no part of the opinion of the Court but has been                Reporter of Decisions:
    prepared by the Reporter of Decisions for the convenience of the reader.                  Kathryn L. Loomis
    PEOPLE v JEMISON
    Docket No. 157812. Argued March 5, 2020 (Calendar No. 3). Decided June 22, 2020.
    Arthur Jemison was convicted following a jury trial in the Wayne Circuit Court of first-
    degree criminal sexual conduct, MCL 750.520b, for a sexual assault that occurred in 1996. The
    victim underwent a forensic examination in 1996, and evidence was collected for a rape kit at
    that time. But the rape kit was not analyzed until 2015. In 2015, samples from the kit were sent
    to a laboratory in Utah for testing and analysis. A forensic analyst at the lab, Derek Cutler,
    concluded that a vaginal swab from the kit contained the DNA of at least one male donor. The
    Utah lab forwarded its report to the Michigan State Police (MSP) Forensic Science Division,
    where the sample was compared to DNA stored in a database. The MSP determined that there
    was an association between Jemison’s DNA and the DNA of the male donor identified by the
    Utah lab as a contributor to the vaginal swab. Before trial, the prosecution moved to allow
    Cutler to testify via two-way, interactive video. Jemison objected, but the court, Antonio
    Viviano, J., granted the motion. At trial, Jemison renewed his objection before a new judge, but
    the trial court, Dalton A. Roberson, J., allowed the video testimony over the objection. Jemison
    appealed his conviction, arguing, in part, that his right of confrontation under the federal and
    state Constitutions was denied when the trial court allowed Cutler to testify via two-way,
    interactive video. In an unpublished per curiam opinion issued on April 12, 2018 (Docket No.
    334024), the Court of Appeals, SAWYER, P.J., and HOEKSTRA, J. (MURRAY, J., concurring),
    concluded that Jemison’s right of confrontation was adequately protected when Cutler testified
    via video because the video testimony allowed Jemison and the jury to observe the witness’s
    responses and reactions in real time and Jemison was able to cross-examine the witness.
    Although the Court of Appeals held that the trial court abused its discretion when it allowed the
    video testimony over Jemison’s objection in violation of MCR 6.006(C), it concluded that the
    error was harmless. The Supreme Court granted Jemison’s application for leave to appeal. 
    503 Mich. 936
    (2019).
    In a unanimous opinion by Chief Justice MCCORMACK, the Supreme Court held:
    The Sixth Amendment of the United States Constitution and Article I, § 20 of the
    Michigan Constitution guarantee criminal defendants the right to confront the witnesses against
    them. In Ohio v Roberts, 
    448 U.S. 56
    (1980), the United States Supreme Court held that the right
    of confrontation was satisfied even if a hearsay declarant was not present at trial for cross-
    examination as long as the statement bore adequate “indicia of reliability.” The Court later held
    in Maryland v Craig, 
    497 U.S. 836
    (1990), that a defendant’s right to confront a child witness
    may be satisfied absent a face-to-face confrontation when necessary to advance an important
    public-policy consideration and when the evidence is sufficiently reliable. However, in
    Crawford v Washington, 
    541 U.S. 36
    (2004), the Court overruled Roberts and rejected its open-
    ended balancing approach. The Court held that the right of confrontation requires face-to-face
    confrontation and is absolute for all testimonial evidence unless a witness is unavailable and the
    defendant had a prior opportunity for cross-examination. The United States Supreme Court did
    not overrule Craig with its decision in Crawford, but it cast its vitality into doubt by turning
    away from the reliability-balancing approach. The Court of Appeals relied on Craig when it
    concluded that the forensic analyst’s expert testimony should not raise the same confrontation-
    right concerns as the testimony of a fact witness. The United States Supreme Court disagrees,
    and has held that expert witnesses called by the prosecution are witnesses against the defendant
    and should be treated as such for purposes of protecting a defendant’s right of confrontation.
    The Court of Appeals also determined that cost-savings was a sufficient reason to extend Craig,
    but expense is not a sufficient justification to avoid face-to-face confrontation. Such a rule
    would potentially allow the prosecution to deprive a defendant of confrontation rights by, for
    instance, using out-of-state analysts to save money and then relying on cost-savings as a
    justification for not providing face-to-face testimony. Craig should be applied only to the
    specific facts it decided: a child victim may testify against the accused by means of one-way
    video testimony (or similar method) when the trial court has determined, consistently with
    statutory authorization, that such measures are necessary because the child requires special
    protection. Craig was not controlling here because the witness was neither a victim nor a child.
    Instead, Crawford was controlling, and the trial court denied Jemison’s right of confrontation
    when it allowed the video testimony over his objection because the forensic analyst was
    available to testify and Jemison had not had a prior opportunity to cross-examine him.
    Judgment of the Court of Appeals reversed; case remanded to the Court of Appeals for
    further proceedings.
    Justice VIVIANO did not participate due to a familial relationship with a circuit court
    judge involved in this case.
    ©2020 State of Michigan
    Michigan Supreme Court
    Lansing, Michigan
    OPINION
    Chief Justice:                 Justices:
    Bridget M. McCormack          Stephen J. Markman
    Brian K. Zahra
    Chief Justice Pro Tem:         Richard H. Bernstein
    David F. Viviano              Elizabeth T. Clement
    Megan K. Cavanagh
    FILED June 22, 2020
    STATE OF MICHIGAN
    SUPREME COURT
    PEOPLE OF THE STATE OF MICHIGAN,
    Plaintiff-Appellee,
    v                                                                No. 157812
    ARTHUR LAROME JEMISON,
    Defendant-Appellant.
    BEFORE THE ENTIRE BENCH (except VIVIANO, J.)
    MCCORMACK, C.J.
    The Sixth Amendment of the United States Constitution and Article I, § 20 of the
    Michigan Constitution guarantee criminal defendants the right to confront the witnesses
    against them. In this case, we consider whether a forensic analyst’s two-way, interactive
    video testimony violated the defendant’s Confrontation Clause rights.
    The Court of Appeals held that the video testimony satisfied the constitutional
    requirements of face-to-face confrontation. But the Court relied only on precedent that
    predated the United States Supreme Court’s decision in Crawford v Washington, 
    541 U.S. 36
    ; 
    124 S. Ct. 1354
    ; 
    158 L. Ed. 2d 177
    (2004), which transformed the Court’s approach to
    confrontation rights. See People v Pesquera, 
    244 Mich. App. 305
    , 309; 625 NW2d 407
    (2001), citing Maryland v Craig, 
    497 U.S. 836
    , 845-846, 851; 
    110 S. Ct. 3157
    ; 
    111 L. Ed. 2d 666
    (1990) (holding that the Confrontation Clause did not categorically prohibit child
    witnesses from testifying outside the defendant’s physical presence by one-way closed
    circuit television where reliability was otherwise supported).
    For almost 25 years before Crawford, reliability was the touchstone of the Court’s
    Confrontation Clause doctrine. In Ohio v Roberts, 
    448 U.S. 56
    , 66; 
    100 S. Ct. 2531
    ; 
    65 L. Ed. 2d
    597 (1980), the Court held that the Confrontation Clause is satisfied even if a hearsay
    declarant is not present for cross-examination at trial as long as the statement bears
    adequate “indicia of reliability.” Citing Roberts, the Court held in Craig that a defendant’s
    right to confront a child witness may be satisfied absent a face-to-face encounter when
    necessary to advance an important public policy and when the testimony is reliable enough.
    
    Craig, 497 U.S. at 850
    , citing 
    Roberts, 448 U.S. at 64
    . But in Crawford, the Court overruled
    Roberts and shifted from a reliability focus to a bright-line rule requiring a face-to-face
    encounter for testimonial evidence. 
    Crawford, 541 U.S. at 61-63
    , 68-69.
    Crawford did not specifically overrule Craig, but it took out its legs. To reconcile
    Craig and Crawford, we read Craig’s holding according to its narrow facts.1
    Crawford requires face-to-face cross-examination for testimonial evidence unless a
    witness is unavailable and the defendant had a prior opportunity for cross-examination.
    1
    In Craig, the Court held that in child abuse cases, as long as a trial court made a case-
    specific showing of necessity that a child witness needs special protection, as required by
    a Maryland statute, the Confrontation Clause did not prohibit the court from allowing the
    child witness to testify using one-way video. 
    Craig, 497 U.S. at 856
    , 860.
    2
    
    Crawford, 541 U.S. at 68
    . Here, admitting the prosecution witness’s video testimony over
    the defendant’s objection violated the defendant’s state and federal constitutional rights to
    confrontation. We reverse the judgment of the Court of Appeals and remand the case to
    that Court for further proceedings consistent with this opinion.
    I. FACTS AND PROCEDURAL HISTORY
    In September 1996, the victim was raped and robbed while waiting in a parked car
    for an acquaintance. Later that day, she filed a police report and went to a hospital for a
    forensic examination and the collection of evidence known as a “rape kit.” She did not
    know her assailant’s identity.
    The rape kit was not analyzed until 2015.2 The samples were sent to Sorensen
    Laboratory in Utah for serological processing and further DNA testing. Sorensen analyst
    Derek Cutler concluded that the vaginal swab from the rape kit contained a mixture of
    DNA profiles from at least two contributors, at least one of which was male and suitable
    for comparison. Sorenson forwarded the report to the Michigan State Police (MSP)
    Forensic Science Division, which analyzed and compared the sample to DNA data stored
    in the Combined DNA Index System (CODIS) database.                 The MSP identified an
    association between the defendant’s DNA and the male donor identified by the Sorensen
    report. The defendant was charged with two counts of first-degree criminal sexual conduct,
    MCL 750.520b.
    Over the defendant’s objection, the circuit court granted the prosecution’s pretrial
    motion to allow Cutler to testify by video. Before a different judge who presided over the
    2
    The 1996 rape kit remained in the Detroit Police Department’s property section until it
    was discovered in 2014 and tested in 2015.
    3
    trial, the defendant renewed his objection to Cutler’s video testimony. But the trial court
    allowed it.
    Cutler testified that it is “normal within the scientific community to have multiple
    people do work on these [rape] kits” and acknowledged that he “did not actually see the
    rape kit.” Instead, he “[went] off the notes that [we]re done by other serologists and
    technicians who are competent in their testing.”3 He analyzed those other serologists’ notes
    and concluded that there were at least two contributors to the DNA on the vaginal swab—
    an unknown male donor and a second donor whose DNA was present at such a low level
    that it was not suitable for comparison. Catherine Maggert, the MSP analyst who used
    Cutler’s report for her analysis, testified that when she compared that report’s unknown
    male donor to the CODIS database, there was an association linking the defendant to the
    unknown male donor.
    The jury convicted the defendant of one count of first-degree criminal sexual
    conduct and acquitted him of the other count. He was sentenced to serve 22 to 40 years in
    prison. He appealed, in part arguing that he was denied his right of confrontation when the
    trial court allowed Cutler’s video testimony, rather than requiring his presence in the
    courtroom. The Court of Appeals affirmed. People v Jemison, unpublished per curiam
    opinion of the Court of Appeals, issued April 12, 2018 (Docket No. 334024). The panel
    relied on Pesquera, an opinion predating Crawford, in which the Court of Appeals held
    3
    Upon learning that Cutler never saw the rape kit but had interpreted other analysts’ notes,
    the defendant again objected to this specific part of Cutler’s testimony, arguing that it was
    inadmissible hearsay. (The defendant apparently did not also object to his inability to
    confront the witnesses who had conducted the analysis.) The trial court overruled the
    objection, and the defendant did not appeal that ruling.
    4
    that a defendant’s confrontation rights were adequately protected when a trial court allowed
    videotaped deposition testimony from child witnesses accusing the defendant of criminal
    sexual conduct. 
    Pesquera, 244 Mich. App. at 309
    . Pesquera relied on Craig for this
    holding. Citing Pesquera, the panel stated that the Confrontation Clause requires the
    following:
    (1) a face-to-face-meeting of the defendant and the witnesses against
    him at trial; (2) the witnesses should be competent to testify and their
    testimony is to be given under oath or affirmation, thereby impressing upon
    them the seriousness of the matter; (3) the witnesses are subject to cross-
    examination; and (4) the trier of fact is afforded the opportunity to observe
    the witnesses’ demeanor. [Jemison, unpub op at 5, citing 
    Pesquera, 244 Mich. App. at 309
    , which in turn cited 
    Craig, 497 U.S. at 846
    , 851.]
    Working within this analytic framework, the panel noted that although the defendant
    “was not able to confront the witness in the traditional sense” when the expert testified
    using two-way, interactive video, the defendant was able to “observe the expert’s responses
    and reactions in real time and [the defendant] took advantage of the opportunity to do so
    through cross-examination.” Jemison, unpub op at 6. The court further noted that “[t]he
    jury was able to observe the expert as he responded.”
    Id. The panel
    concluded that
    “[b]ecause the testimony met three of the Confrontation Clause criteria, and the trial court
    appropriately dispensed with the face-to-face requirement, defendant’s right to
    confrontation was not violated.”
    Id. The panel
    also held that the trial court abused its discretion by allowing the witness’s
    two-way, interactive video testimony over the defendant’s objection because MCR
    6.006(C) requires the parties to consent to the use of videoconferencing technology for trial
    testimony, but it found that error harmless.
    Id. at 5,
    7.
    5
    The defendant filed an application for leave to appeal in this Court. We granted it
    and asked the parties to address “whether permitting an expert witness to testify by two-
    way interactive video, over the defendant’s objection, denied the defendant his
    constitutional right to confront witnesses and, if so, whether this error was harmless.”
    People v Jemison, 
    503 Mich. 936
    , 936-937 (2019).4
    II. STANDARD OF REVIEW
    Whether a defendant was denied his right to confront a witness is a constitutional
    question that we review de novo. People v Bruner, 
    501 Mich. 220
    , 226; 912 NW2d 514
    (2018). When we review a question de novo, we review the legal issue independently
    without deference to the lower court.
    Id. III. ANALYSIS
    The Sixth Amendment of the United States Constitution provides, in part, that “[i]n
    all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the
    witnesses against him . . . .” See also Const 1963, art 1, § 20. Before Crawford, the United
    States Supreme Court’s Confrontation Clause jurisprudence was built around the reliability
    of the challenged evidence. In Roberts, the Court held that the Confrontation Clause was
    not a barrier for admission if the challenged testimony bore adequate “indicia of
    4
    The prosecution argues that the defendant waived appellate review of this issue by failing
    to object in writing when it notified the defendant that it intended to admit Cutler’s written
    report into evidence under MCR 6.202. In other words, the prosecution argues that a
    defendant’s failure to comply with a court rule which governs the admissibility of an
    expert’s report waives his constitutional right to confront the witness who authored the
    report. Merits aside, because the prosecution did not raise this argument before the Court
    of Appeals, we decline to address it. See People v Walker, 
    504 Mich. 267
    , 276 n 3; 934
    NW2d 727 (2019), citing People v McGraw, 
    484 Mich. 120
    , 131 n 36; 771 NW2d 655
    (2009).
    6
    reliability.” 
    Roberts, 448 U.S. at 66
    . Crawford overruled Roberts and transformed the
    Court’s approach to the Confrontation Clause from a case-by-case reliability-balancing test
    to a categorical rule for protected evidence.
    Craig was decided before Crawford and therefore under the Roberts reliability
    framework. In Craig, the Court held that a defendant’s right to confront a child witness
    may be satisfied by one-way video testimony instead of a physical, face-to-face
    confrontation, if the testimony is reliable. 
    Craig, 497 U.S. at 850
    , citing 
    Roberts, 448 U.S. at 64
    . The Court identified four considerations that courts should weigh to determine
    reliability—physical presence, whether the testimony was taken under oath, the
    defendant’s ability to cross-examine, and whether the jury could observe the witness’s
    demeanor. See 
    Craig, 497 U.S. at 846
    . And having weighed those factors and determined
    that the testimony was reliable, the Court held that because the evidence was reliable,
    “protect[ing] a child witness from trauma that would be caused by testifying in the physical
    presence of the defendant, at least where such trauma would impair the child’s ability to
    communicate,” justified permitting the witness’s one-way video testimony.
    Id. at 857.
    Justice Scalia dissented.    He rejected the majority’s reliability-balancing test
    “because the Confrontation Clause does not guarantee reliable evidence; it guarantees
    specific trial procedures that were thought to assure reliable evidence, undeniably among
    which was ‘face-to-face’ confrontation.”
    Id. at 862
    (Scalia, J., dissenting). And he
    criticized the Court’s balancing test as inconsistent with the constitutional text.
    Id. at 870
    (“The Court today has applied ‘interest-balancing’ analysis where the text of the
    Constitution simply does not permit it.”).
    7
    Fourteen years passed between Craig and Crawford, and things changed. In
    Crawford, Justice Scalia wrote for the majority and his dissent from Craig became the
    Court’s view, transforming its approach to the Confrontation Clause. Concluding that
    Roberts had “replac[ed] categorical constitutional guarantees with open-ended balancing
    tests,” 
    Crawford, 541 U.S. at 67-68
    , the Court shifted gears; balancing no longer had a role.
    Instead, the defendant’s confrontation right is absolute for all “testimonial” evidence unless
    a witness is unavailable and the defendant had a prior opportunity to cross-examine the
    witness.
    Id. at 68.
    The Court emphasized the importance of face-to-face testimony to the confrontation
    right, citing historical examples that illustrated how face-to-face testimony was critical to
    its enforcement.
    Id. at 43-45
    (describing, for example, how a trial court refused to call Sir
    Walter Raleigh’s accuser to testify, over Raleigh’s pleading, “Call my accuser before my
    face,” which led to both Raleigh’s death sentence and then to English law developing the
    confrontation right as an important limit on government abuses against criminal
    defendants) (citation omitted). The Court explained that a reliability-balancing test would
    not have “provid[ed] any meaningful protection” in these cases.
    Id. at 68.
    And so the
    Court restored face-to-face testimony as a fundamental element of the confrontation right.
    Id. at 57,
    quoting Mattox v United States, 
    156 U.S. 237
    , 244; 
    15 S. Ct. 337
    ; 
    39 L. Ed. 409
    (1895); see also California v Green, 
    399 U.S. 149
    , 157; 
    90 S. Ct. 1930
    ; 
    26 L. Ed. 2d 489
    (1970)
    (explaining that “it is this literal right to ‘confront’ the witness at the time of trial that forms
    the core of the values furthered by the Confrontation Clause”).5
    5
    While the Court’s early confrontation jurisprudence included both the right to cross-
    examine and the right to have the witness brought to face the defendant, face-to-face
    8
    The reliability-balancing approach established by the Court in Roberts was the basis
    for its rule in Craig allowing public-policy considerations to override the need for face-to-
    face testimony if the evidence is reliable enough. 
    Craig, 497 U.S. at 850
    . When Crawford
    overruled Roberts and did away with reliability balancing, it put Craig’s reliability-focused
    rule into doubt. We are not the first court to notice. See United States v Carter, 907 F3d
    1199, 1206 n 3 (CA 9, 2018) (recognizing that “[t]he vitality of Craig itself is questionable
    in light of the Supreme Court’s later decision in Crawford”); see also State v Thomas, __
    NM __; 2016-NMSC-024; 376 P3d 184, 193 (2016) (noting that “Crawford may call into
    question the prior holding in Craig to the extent that Craig relied on the reliability of the
    video testimony”). But the Supreme Court did not specifically overrule Craig, and, of
    course, we leave to that Court “the prerogative of overruling its own decisions.” Rodriguez
    de Quijas v Shearson/American Express, Inc, 
    490 U.S. 477
    , 484; 
    109 S. Ct. 1917
    ; 
    104 L. Ed. 2d
    526 (1989).
    testimony has even deeper historical roots: it was a critical feature of ancient Roman court
    systems, while the cross-examination right was a seventeenth-century innovation. See
    Herrmann & Speer, Facing the Accuser: Ancient and Medieval Precursors of the
    Confrontation Clause, 34 Va J Int’l L 481 (1994); see also Coy v Iowa, 
    487 U.S. 1012
    , 1015-
    1016; 
    108 S. Ct. 2798
    ; 
    101 L. Ed. 2d 857
    (1988) (“The Roman Governor Festus, discussing
    the proper treatment of his prisoner, Paul, stated: ‘It is not the manner of the Romans to
    deliver any man up to die before the accused has met his accusers face to face, and has
    been given a chance to defend himself against the charges.’ Acts 25:16.”).
    The Court previewed this aspect of its Crawford holding in 2002, when it refused
    to pass along to Congress a proposed amendment to the Federal Rules of Criminal
    Procedure that would have allowed a trial witness to give testimony by video. In an
    accompanying statement, Justice Scalia remarked that the proposed rule was “of dubious
    validity under the Confrontation Clause.” Order Amending the Federal Rules of Criminal
    Procedure, 
    535 U.S. 1159
    , 1159 (2002) (statement of Scalia, J.). As he put it, “Virtual
    confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it
    is sufficient to protect real ones.”
    Id. at 1160.
    9
    The Court of Appeals extended Craig’s rule here for two reasons. See Jemison,
    unpub op at 5-6. First, because Cutler was an expert witness, the panel believed that his
    testimony should not raise the same confrontation-right concerns as the testimony of a fact
    witness.
    Id. Put differently,
    the Court of Appeals reasoned that Cutler’s expert testimony
    does not present the same credibility concerns as nonexpert witnesses, effectively placing
    him outside the confrontation right. The United States Supreme Court, however, disagrees:
    expert witnesses called by the prosecution are witnesses against the defendant. Melendez-
    Diaz v Massachusetts, 
    557 U.S. 305
    , 313-314; 
    129 S. Ct. 2527
    ; 
    174 L. Ed. 2d 314
    (2009) (“The
    text of the [Sixth] Amendment contemplates two classes of witnesses—those against the
    defendant and those in his favor. The prosecution must produce the former; the defendant
    may call the latter. Contrary to respondent’s assertion, there is not a third category of
    witnesses, helpful to the prosecution, but somehow immune from confrontation.”).
    Second, the Court of Appeals believed that cost-savings was a sufficient reason to
    extend Craig’s rule. Jemison, unpub op at 5. We disagree; expense is not a justification
    for a constitutional shortcut. This is especially true where the prosecution elects to use an
    out-of-state laboratory for its analysis. Such a rule would have perverse consequences: the
    prosecution could deprive a criminal defendant of confrontation rights by using out-of-
    state analysts to save money and then cite cost-savings as a justification for not providing
    face-to-face testimony.6
    6
    Courts applying Craig’s rule have almost universally concluded that expense is not a
    sufficient reason for sacrificing face-to-face testimony. See, e.g., State v Rogerson, 855
    NW2d 495 (Iowa, 2014) (the state’s justification of distance, cost, and inefficiency could
    not overcome a defendant’s confrontation rights); Lipsitz v State, 135 Nev 131; 
    442 P.3d 138
    (2019) (it was necessary to use two-way video technology for a witness who was
    10
    We will apply Craig only to the specific facts it decided: a child victim may testify
    against the accused by means of one-way video (or a similar Craig-type process) when the
    trial court finds, consistently with statutory authorization and through a case-specific
    showing of necessity, that the child needs special protection. 
    Craig, 497 U.S. at 860
    . The
    witness here was neither the victim nor a child; Crawford thus provides the applicable rule.
    The Court of Appeals answered the wrong question when it held that “the trial court
    appropriately dispensed with the face-to-face requirement.” Jemison, unpub op at 6.7 As
    medically unavailable due to being admitted to an out-of-state residential treatment center);
    Thomas, 376 P3d at 195 (a defendant’s confrontation rights were violated when the trial
    court permitted an out-of-state forensic analyst to testify using two-way video in order to
    avoid inconveniencing the witness); Bush v State, 193 P3d 203, 214-216; 
    208 WY 108
    (2008) (no confrontation violation when a witness testified over two-way video when his
    physician warned against traveling and he gave testimony after being sworn in by a district
    court judge). Only one state’s highest court appears to have adopted a test allowing for
    two-way video testimony in response to impossibility or impracticality because of distance
    or expense. Missoula v Duane, 
    380 Mont. 290
    ; 
    2015 MT 232
    ; 355 P3d 729, 731, 734
    (2015). But the defendant was charged with a misdemeanor and the out-of-state witness
    would have had to travel for three separate trials, which the Montana Supreme Court found
    would have imposed a significant burden on the witness and a significant expense on the
    city.
    Id. Even if
    we were to apply Craig’s rule, our result would be the same: mere
    convenience, efficiency, and cost-savings interests are not important enough public-policy
    considerations to dispense with a defendant’s constitutional right to face-to-face
    confrontation.
    7
    Perhaps because the defendant did not cite Crawford in his briefing in the Court of
    Appeals, or perhaps because this Court has cited Craig without the need to consider
    Crawford’s sea change to Confrontation Clause jurisprudence, see People v Buie, 
    491 Mich. 294
    , 304-305; 817 NW2d 33 (2012), the Court of Appeals did not address Crawford. It
    cited only Buie, in which this Court quoted Craig. See Jemison, unpub op at 5, quoting
    
    Buie, 491 Mich. at 304
    . While Buie was decided after Crawford, it does not appear that
    Crawford was raised in that case either; there was, in fact, little need for a Confrontation
    Clause analysis in Buie given that we held that the defendant through his counsel had
    waived his right to confrontation. 
    Buie, 491 Mich. at 317-318
    .
    11
    Crawford makes clear, for testimonial evidence, that requirement may be dispensed with
    only when the witness is unavailable and the defendant had a prior chance to cross-examine
    the witness.
    The parties do not dispute that Cutler’s evidence was testimonial.8 And we agree—
    Cutler’s evidence was, after all, testimony. See 
    Crawford, 541 U.S. at 51-52
    . The defendant
    had a right to face-to-face cross-examination; Cutler was available, and the defendant did
    not have a prior chance to cross-examine him. See
    id. The defendant’s
    state and federal
    constitutional rights to confrontation were violated by the admission of Cutler’s two-way,
    interactive video testimony.9
    But had there been no waiver, Crawford would have controlled. Craig’s language
    that “the face-to-face confrontation requirement is not absolute” and that the preference for
    face-to-face confrontations “must occasionally give way to considerations of public policy
    and the necessities of the case,” 
    Craig, 497 U.S. at 849-850
    , citing 
    Mattox, 156 U.S. at 243
    ;
    see also Jemison, unpub op at 5 (quotation marks and citations omitted), envisions the
    possibility of open-ended exceptions to the confrontation requirement that has since been
    rejected in Crawford. See 
    Crawford, 541 U.S. at 54
    (“The text of the Sixth Amendment
    does not suggest any open-ended exceptions from the confrontation requirement to be
    developed by the courts.”).
    8
    In a footnote in its supplemental brief, the prosecution suggests that Cutler’s testimony
    could be considered to be nontestimonial because of the plurality decision in Williams v
    Illinois, 
    567 U.S. 50
    ; 
    132 S. Ct. 2221
    ; 
    183 L. Ed. 2d 89
    (2012). This footnote notwithstanding,
    the prosecution has consistently conceded that Cutler’s testimony is testimonial. But even
    if it had not so conceded, we are not persuaded by the prosecution’s alternative argument
    presented in the footnote. Williams decided whether out-of-court statements made solely
    to explain the assumptions used to form an expert opinion were beyond the consideration
    of the Confrontation Clause.
    Id. at 58
    (opinion of Alito, J.). Cutler testified, just not face-
    to-face.
    9
    We agree with the Court of Appeals that the trial court’s decision to allow the two-way,
    interactive video testimony also violated MCR 6.006(C). This Court has never addressed
    whether a violation of MCR 6.006(C) can be harmless, and if so, the appropriate standard
    to apply to determine whether it is harmless. See, e.g., 
    Buie, 491 Mich. at 320
    (finding no
    violation of MCR 6.006(C)). The Court of Appeals appeared to treat the MCR 6.006(C)
    12
    IV. CONCLUSION
    In allowing this witness’s two-way, interactive video testimony over the defendant’s
    objection, the trial court violated the defendant’s Confrontation Clause rights. We reverse
    the judgment of the Court of Appeals and remand to that Court for further proceedings
    consistent with this opinion, including determining whether that violation was harmless
    beyond a reasonable doubt. Delaware v Van Arsdell, 
    475 U.S. 673
    , 684; 
    106 S. Ct. 1431
    ; 
    89 L. Ed. 2d 674
    (1986).
    Bridget M. McCormack
    Stephen J. Markman
    Brian K. Zahra
    Richard H. Bernstein
    Elizabeth T. Clement
    Megan K. Cavanagh
    VIVIANO, J., did not participate due to a familial relationship with a circuit court
    judge involved in this case.
    error as interchangeable with a Confrontation Clause violation and reviewed it for whether
    it was harmless beyond a reasonable doubt. We vacate its analysis on that point. On
    remand, the Court of Appeals should also consider (1) whether the violation of MCR
    6.006(C) is susceptible to harmless-error review; (2) if so, what standard applies in
    determining whether the error was harmless; and (3) whether the error was harmless in this
    case.
    13