                                                                                      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 US 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 US 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 US 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 US
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 US 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 US 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 US at 850, citing Roberts, 448 US 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 US 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 US at 856, 860.


                                             2
Crawford, 541 US 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 US 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 US 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 US at 850, citing Roberts, 448 US 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 US 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 US 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 US 237, 244; 15 S Ct 337; 39 L Ed 409

(1895); see also California v Green, 399 US 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 US 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 US 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 US 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 US 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 US 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 US 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 US 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 US at 849-850, citing Mattox, 156 US 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 US 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 US 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 US 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
