                                                                                          07/20/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 14, 2020

               STATE OF TENNESSEE v. DENNIS LEE SEALE

               Direct Appeal from the Circuit Court for Lewis County
                  No. 2017-CR-141          Michael Binkley, Judge
                      ___________________________________

                           No. M2019-01913-CCA-R9-CD
                       ___________________________________

The Defendant, Dennis Lee Seale, filed a Rule 9 interlocutory appeal seeking our review
of the trial court’s ruling that some of the prosecution’s out-of-state witnesses could
testify at trial via two-way video conferencing technology. After a hearing, the trial court
ruled that four of the prosecution’s witnesses could testify via teleconferencing rather
than in person. The Defendant filed an application for an interlocutory appeal, which the
State did not oppose, and which the trial court granted. This court determined that this
application met the criteria of Rule 9, and granted the appeal. On appeal, the Defendant
contends that the trial court erred because its ruling violated his rights pursuant to the
Confrontation Clause of both the Federal and our State constitution. After a thorough
review of the record and applicable authorities, we conclude that this case, as one of first
impression in this state, provides this court the opportunity to hold that the standard as
articulated in Maryland v. Craig, 497 U.S. 836 (1990), should extend to two-way video
conferencing technology. As such we reverse and remand this case to the trial court for a
case-specific and witness-specific determination of whether the denial of the Defendant’s
right to confront witnesses is necessary to further an important public interest.

 Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed
                                  and Remanded

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, P.J., and ALAN E. GLENN, J., joined.

John S. Colley, III, Columbia, Tennessee, for the appellant, Dennis Lee Seale.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Assistant Attorney General; Kim R. Helper, District Attorney General; and Stacey
Brackeen Edmonston, Assistant District Attorney General, for the appellee, State of
Tennessee.
                                              OPINION
                                               I. Facts

       This case arises from allegations that the Defendant burglarized the victim’s home
and then murdered him. In 2017, a Lewis County grand jury indicted the Defendant for:
the first-degree premeditated murder and the felony murder of Brian Deavers; the
especially aggravated burglary of Mr. Deavers’s home; being in possession of a firearm
during the commission of a dangerous felony; and vandalism. The Defendant moved to
continue the trial, set for January 28, 2019, due to a delay in forensic testing. The trial
court reset the trial date for July 22, 2019.

      On July 12, 2019, the State filed a motion requesting that four of the prosecution’s
witnesses, all of whom were from Virginia, be allowed to testify via teleconferencing
technology, namely “Microsoft Teams,” the software used by the District Attorneys
General Conference.1 Those four witnesses were: James Reed; Sharon Wolfrey2; Lyle
Durrer; and Judith Seale.

        The trial court held a hearing on the State’s motion on July 16, 2019, during which
the parties presented the following evidence: The State offered argument about why each
of the witnesses should be allowed to testify via teleconferencing. It stated that James
Reed’s wife suffered from dementia and had a recent cancer diagnosis, and Mr. Reed was
her sole caretaker. The two of them lived together in Virginia, and traveling to
Tennessee would be difficult in light of these circumstances. The second witness, Sharon
Wolfrey, who was Mr. Reed’s assistant, also lived in Virginia and had also been
diagnosed with cancer. She was undergoing cancer treatment, so the State asked that she
also be able to testify via “Skype.” The third witness, Lyle Durrer, had a son who was
starting college orientation the following week, and Mr. Durrer stated it would be
difficult for him under those circumstances to make the eleven-hour drive to Tennessee.
The final witness, Judith Seale, who was the Defendant’s mother, informed the State that
it would be extremely burdensome on her emotionally to come to the trial and asked for
an accommodation.

       The State offered affidavits for two of the four witnesses. Mr. Durrer’s affidavit
indicated that he sold the Defendant a firearm and ammo from Mr. Durrer’s store. Mr.
Durrer swore that he could not attend the Defendant’s trial because it interfered with his
son’s college orientation.


        1
         For purposes of this appeal, we will refer to the technology generally, as our holding is general
and does not apply only to the specific software proposed to be used herein.
       2
          Some places in the transcript spell this witness’s last name “Wolfrey” and others spell it
“Wolfree.” For clarity and consistency, we will use the “Wolfrey” spelling.
                                                  -2-
       The State also offered Mr. Reed’s affidavit. In it, Mr. Reed described his wife’s
health issues, including dementia and cancer, and his inability to leave Mrs. Reed because
he was her sole care provider. The State additionally offered Mr. Reed’s wife’s doctor’s
affidavit, which stated that she was unable to travel.

        The State did not present affidavits from Ms. Wolfrey or Ms. Seale, but relied on
its statements that Ms. Wolfrey was also battling cancer and that Ms. Seale had said
coming to court would be “extremely burdensome on her emotionally” and that her
testimony would take only thirty minutes, as she was only being called to authenticate the
Defendant’s jailhouse phone calls to her during which the Defendant made inculpatory
statements.

       The State explained that the teleconferencing software allowed for the judge and
both attorneys to see a witness, and the witness to see those parties. It then allowed for a
screen to project the witness so the jury could see them testify. The State noted that this
would be live, and not prerecorded testimony, and that the Defendant’s attorney would be
afforded the ability to cross-examine the witness, which the State submitted satisfied the
Confrontation Clause.

        The Defendant’s counsel submitted that Tennessee case law has held that the
Defendant must be afforded the right to confront the witnesses face to face. Counsel then
noted that this was a “high stakes” first degree murder case, and the witnesses referenced
by the State were important to the prosecution’s case. Mr. Reed, in fact, planned to
testify whether the Defendant was with him at the time of the shooting. Further, the
Defendant’s mother planned to identify the Defendant’s voice in a jail recording that
contained “very, very damaging admissions about [the Defendant’s] participation in this
shooting.”

        The trial court first noted that this was an “interesting issue” and that, as an issue
of first impression, could be decided either way. It found:

       I think the laser focus is, if [the Defendant] is going to receive and have his
       right of confrontation through this method of providing long distance
       testimony balanced against the need of these witnesses to use
       [teleconferencing software] instead of having to be here personally. Now,
       there’s being here personally and then being personally available through
       [teleconferencing software]. I think there’s a difference in that, but it may
       not be a distinguishing difference when it comes to the right of
       confrontation. In other words, is the [D]efendant going to have his right of
       confrontation met in the same manner as if these witnesses were here in the
       courtroom live testifying as they would with [teleconferencing software],
                                            -3-
       that’s really the issue here, are we giving him the same exact protection that
       he deserves and that the Constitution requires if we’re doing it by
       [teleconferencing software].

The trial court then offered the following instructive findings:

       The confrontation clause of the Sixth Amendment to the United States
       Constitution says -- and this is what we’re really kind of balancing it all
       against – in all criminal prosecutions, the accused shall enjoy the right to be
       confronted, the pertinent part, with the witnesses against him. In addition,
       [the defense attorney is right that] [t]he Tennessee Constitution provides a
       little bit different protection than I think a broader protection than the
       United States Constitution. In Article 1, Section 9 of the Tennessee
       Constitution it says that in all criminal prosecutions, the accused . . . have
       the right to meet the witness face to face. . . . Traditionally, the Tennessee
       courts have interpreted the right of confrontation as affecting two types of
       protections for criminal defendants just like in this case. The right to
       physically face the witness who testifies against the defendant and the right
       to cross-examine those witnesses through counsel.

              I do not think McCoy really applies to the facts of the case that we
       have here currently, but it is instructive, it’s helpful. Deuter, . . . is helpful
       and I believe comes closer to defining the parameters of the right of
       confrontation, not only under the U.S. Constitution but also the Tennessee
       Constitution.

               Now, in reviewing the pertinent case law, these are the -- for lack of
       a better term -- pressure points that I think the Court needs to consider in
       weighing the right of physical face-to-face confrontation and the witnesses’
       inability to be present in the courtroom to testify. First of all, does the
       reason for the witnesses’ inability to appear physically in the courtroom,
       does that rise to the level presented by the affidavits that we do have to
       excuse those witnesses from appearing physically in court? I think they do.
       I think they do, but I’m going to balance that with a confrontation clause in
       a moment. So to ensure that we don’t violate the confrontation clause we
       need to know whether or not the equipment, that is the software, . . .
       program is reliable. In other words, are we going to, in essence, meet the
       parameters of the confrontation clause where the person is testifying as if
       live, and the other second prong is whether or not this defendant will be
       able to enjoy the second part of the confrontation clause, and that is to
       cross-examine these witnesses who are testifying in a remote fashion.
                                             -4-
       The testimony of these witnesses, as I understand it with the
program that is going to be utilized, will be in real time. There will be no
actual delay. I’m not too sure that really matters, but in this particular case
it is as live as it can be as if these witnesses were personally in the
courtroom. So the testimony, if the software works the way it should work,
will be, in my opinion, as good as the person being here live. The
[D]efendant . . . and his lawyer [will] be able to observe . . . the witness’
demeanor, [and] . . . how the witness responds to questions. In other words,
we all know that it is important for the jury, finder of fact, as well as the
attorneys to be able to observe the demeanor of witnesses when they testify.
You get a lot from that on the issue of creditability so I don’t think the issue
of creditability and the right of confrontation through cross-examination is
an issue because it is as live as we can get it without the person being
actually present in the courtroom. I also think the software, it appears to be
software that will be accurate and portray exactly what is being testified to
step by step.

        In balancing [the Defendant’s] right to confrontation under the U.S.
Constitution and the more stringent, in my opinion, right of confrontation . .
. under the Tennessee Constitution . . . against the necessity of these
witnesses appearing by [teleconferencing technology] and trying to insure
in that balance that the [D]efendant receives his right of confrontation as to
both parts under the Constitution, it appears to me that he will receive the
same exact right as if the witness was here testifying in the courtroom live.
It is another reflection of the way we all communicate. Long distance
communication is something that is used all the time. It’s really important
to make sure, regardless of whether or not it is used all the time in business
or in any other fashion, it is always important, in my opinion, regardless of
all of that. When we’re talking about someone's constitutional rights, it
meets a higher scrutiny, in my opinion, to make sure this gentleman gets
exactly what everyone in this room has and that’s all of your rights under
the Tennessee Constitution as well as the U.S. [C]onstitution. That’s the
way I see it.

        So to respond to the laser point that I made at the very beginning, is
this gentleman going to receive exactly what he deserves under his right of
confrontation, not only to observe and watch the witnesses who are
testifying against him, but also have the right to cross-examine those
witnesses. I believe he receives exactly the same rights as if . . . the
witnesses were live testifying in the courtroom.
                                     -5-
       I will allow the witnesses to testify by [teleconferencing technology] . . . .

The Defendant requested a Rule 9 interlocutory appeal, and the trial court agreed that his
request met the applicable standards. We agreed and granted the Defendant’s request for
interlocutory appeal.

                                    II. Analysis

       On appeal, the Defendant contends that allowing witnesses in a criminal
prosecution to testify against him via teleconferencing software violates his right to
confrontation under the Sixth Amendment to the United States Constitution and Article I,
section 9 of the Tennessee Constitution. The State counters that the Tennessee
Constitution does not afford any greater protections than the United States Constitution
and that the United States Supreme Court has held that teleconferencing software does
not violate the Confrontation Clause where there is a sound public policy reason to use
such technology. See Maryland v. Craig, 497 U.S. 836, 855-57 (1990). The State further
contends that those public policy reasons exist in this case, so the trial court did not err
when it held that the four witnesses could testify via teleconferencing software.

       Generally, questions concerning the admissibility of evidence rest within the
sound discretion of the trial court, and this court will not interfere with the exercise of
that discretion in the absence of a clear showing of abuse appearing on the face of the
record. State v. McCoy, 459 S.W.3d 1, 8 (Tenn. 2014) (citations omitted). Issues of
statutory and constitutional interpretation are questions of law, which this court reviews
de novo without any presumption of correctness given to the legal conclusions of the
courts below. McCoy, 459 S.W.3d at 8 (citations omitted).

        The Confrontation Clause of the Sixth Amendment to the United States
Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.” Article 1, section 9 of the
Tennessee Constitution states:

               That in all criminal prosecutions, the accused hath the right to be
       heard by himself and his counsel; to demand the nature and cause of the
       accusation against him, and to have a copy thereof, to meet the witnesses
       face to face, to have compulsory process for obtaining witnesses in his
       favor, and in prosecutions by indictment or presentment, a speedy public
       trial by an impartial jury of the County in which the crime shall have been
       committed, and shall not be compelled to give evidence against himself.

                                             -6-
“It has long been held that the Confrontation Clause of the Sixth Amendment and art. I, §
9 of the Tennessee Constitution provide two protections for criminal defendants: the right
to physically face witnesses and the right to cross-examine witnesses.” State v. Brown,
29 S.W.3d 427, 430-31 (Tenn. 2000) (emphasis added) (citing Pennsylvania v. Ritchie,
480 U.S. 39, 51 (1987); State v. Middlebrooks, 840 S.W.2d 317, 322 (Tenn. 1992)).
“The Confrontation Clause is designed ‘to ensure the reliability of the evidence against a
criminal defendant by subjecting it to rigorous testing in the context of an adversary
proceeding before the trier of fact.’” McCoy, 459 S.W.3d at 13 (quoting Maryland v.
Craig, 497 U.S. 836, 845 (1990)).

       The Tennessee Supreme Court stated recently that, “[W]hen deciding claims based
on the right of confrontation provided in article I, section 9, we have expressly adopted
and applied the same analysis used to evaluate claims based on the Confrontation Clause
of the Sixth Amendment.” State v. Davis, 466 S.W.3d 49, 68 (Tenn. 2015) (citing State
v. Dotson, 450 S.W.3d 1, 62 (Tenn. 2014); State v. Parker, 350 S.W.3d 883, 898 (Tenn.
2011); State v. Franklin, 308 S.W.3d 799, 809-10 (Tenn. 2010); State v. Cannon, 254
S.W.3d 287, 301 (Tenn. 2008); State v. Lewis, 235 S.W.3d 136, 144-45 (Tenn. 2007)).

        In Maryland v. Craig, an opinion decided in 1990, the United States Supreme
Court addressed whether a Maryland law that allowed a child sexual assault victim to
testify via closed circuit television violated the defendant’s right to confrontation. In that
case, the procedure included that the child witness, the prosecutor, and defense counsel
withdrew from the courtroom to another room where the child was examined and cross
examined. The proceedings in the separate room were transmitted to the courtroom,
where the defendant, judge, and jury remained, by one-way, closed-circuit television. Id.
at 841. The defendant could talk with his counsel by telephone, and the judge conducted
the proceedings in the same manner as if the examination were being held in the
courtroom. The Court stated that the defendant’s right to confrontation is not “absolute”
and that face-to-face confrontation, while preferred, is not an indispensable element of
the confrontation rights. Id. at 844, 849. It stated that the preference for face-to-face
confrontation “must occasionally give way to considerations of public policy and the
necessities of the case.’” Id. at 849 (quoting Mattox v, United States, 156 U.S. 237, 243
(1895)). The Craig Court adopted a balancing test and found that in some cases the right
to physical confrontation may be denied if necessary to further an important public policy
and reliability of the testimony is otherwise assured. Id. at 850. The Craig Court stated
that “the critical inquiry” is “whether use of the procedure [utilized in the Craig case] is
necessary to further an important state interest.” It then concluded that:

       where necessary to protect a child witness from trauma that would be
       caused by testifying in physical presence of the defendant, at least where
       such trauma would impair the child’s ability to communicate, the
                                            -7-
       Confrontation Clause does not prohibit use of a procedure that, despite the
       absence of face-to-face confrontation, ensures the reliability of the evidence
       by subjecting it to rigorous adversarial testing and thereby preserves the
       essence of effective confrontation. Because there is no dispute that the
       child witness in this case testified under oath, were subject to full cross-
       examination and were able to be observed by the judge, jury, and defendant
       as they testified, we conclude that, to the extent that a proper finding of
       necessity has been made, the admission of such testimony would be
       consonant with the Confrontation Clause.

Id. at 857. The Court then remanded the case for the trial court to make a specific finding
that testimony by the child in the courtroom, in the presence of the defendant would
result in the child suffering serious emotional distress such that the child could not
reasonably communicate. Id. at 858.

        In State v. Deuter, our supreme court addressed whether the admission of
unsworn, ex parte videotaped statements of child victims violated the defendant’s right to
confrontation. 839 S.W.2d 391, 392 (Tenn. 1992). The court extensively analyzed Craig
and noted “that the interest to be protected as articulated in Craig is the child-witness’s
ability to testify and that to satisfy this interest, the trial court must determine that the
trauma to the child would be such that the child’s ability to communicate would be
impaired by the presence of the defendant rather than the courtroom and proceedings in
general.” Id. at 394. The Court stated that the procedure in the case before it included
that the questioning of the child witnesses occurred several months before trial, with only
the child and investigators present. It distinguished this procedure with that presented in
Craig and held that the procedure in Deuter did not meet the requirements set forth in
Craig. Id.

       The Deuter Court went on to state that the face-to-face language found in the
Tennessee Constitution has been held to impose a higher right than that found in the
federal constitution. Id. at 395. It noted that a Pennsylvania court, interpreting the
State’s own face-to-face language, stated that “Many people possess the trait of being
loose tongued or willing to say something behind a person’s back that they dare not or
cannot truthfully say to his face or under oath in a courtroom.” Id. at 395-396 (citing
Commonwealth v. Russo, 131 A.2d 83, 88 (1957). The Deuter court also cited a case
from the Indiana Supreme Court that found that the face-to-face provision in Indiana’s
constitution was violated by the admission of previously recorded videotaped statement
during which the defendant could view the witnesses testifying by one-way television,
but that “two-way television communication between the defendant and witness could
pass constitutional muster.” Deuter, 839 S.W.2d at 396 (citing Brady v. Indiana, 575
N.W.2d 981, 989 (Ind. 1991)).
                                            -8-
       While multiple cases have reiterated the Deuter holding that the “face to face”
language found in the Tennessee Constitution imposes a higher standard than that found
in the federal constitution, the Tennessee Supreme Court subsequently stated that, “we
have found no evidence to have been excluded under our state constitution’s
confrontation clause that was not also excluded under the federal constitution’s
counterpart.” See Lewis 235 S.W.3d at 144.

       Unlike Craig and Deuter, the facts presented in the case herein involve the use of
newer two-way video testimony. The United States Supreme Court has not decided what
test should govern two-way testimony. See Wrotten v. New York, 560 U.S. 959, 960
(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 Supreme Court did, however, reject a
proposed change to Federal Rule of Criminal Procedure 26 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, the 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 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.

       Before making our holding, we acknowledge the cases cited by the State in which
other courts in other jurisdictions have held that two-way conferencing is appropriate
under certain circumstances. See State v. Barber, No. 1 CA-CR-17-0622, 2019 WL
3231189, at *2 (Ariz. Ct. App. July 18, 2019) (upholding the use of two-way
conferencing when the witness was the sole caregiver for her 77-year-old husband, who
had undergone multiple heart-related treatments and had since developed other
complications); Horn v. Quarterman, 508 F.3d 306, 320 (5th Cir. 2007) (holding that the
                                          -9-
protection of seriously ill witnesses may give rise to the type of necessity required under
Craig to permit testimony by way of closed-circuit television”); Cervantes v. State, No.
10-19-00019-CR, 2019 WL 6607003, at *2-3 (Tex. App. Dec. 4, 2019) (finding no
violation of the confrontation clause in allowing a single mother of five who lived in
Kansas to testify via Skype).

       We further acknowledge that other cases have adopted the standard articulated in
Craig for one-way transmissions to two-way transmissions. See Lipsitz v. State, 442 P.3d
138, 140 (2019) (adopting the Craig test and applying it to two-way audiovisual
technology in a case where the witness was in a drug rehabilitation program); City of
Missoula v. Duane 355 P.3d 729 (Mont. 2015) (applying Craig based upon the
prohibitive costs of witness travel); State v. Smith, 308 P.3d 135, 136 (N.M. Ct. App.
2013) (holding that a state-employed scientific analyst’s testimony via two-way video
about the defendant’s blood alcohol content violated the defendant’s right to
confrontation because the trial court had not determined that such remote testimony was
necessary to further an important public interest); Commonwealth v. Atkinson, 987 A.2d
743, 751-52 (Pa. Super. Ct. 2009) (holding that allowing an imprisoned witness to testify
via two-way videoconferencing technology without a finding of necessity violates the
Confrontation Clause).

        We find compelling the reasoning articulated by the Eighth Circuit in United
States v. Bordeaux, 400 F.3d 548, 554 (8th Cir. 2005). That court reasoned that, although
two-way videoconferencing might be a better approximation of face-to-face
confrontation than one-way video, it was nevertheless virtual and less desirable than in-
person testimony. Id. The court stated that “‘confrontation; via a two-way closed circuit
television is not constitutionally equivalent to face-to-face confrontation.” Id. The
Bordeaux court went on to state:

       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 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 v. Iowa, 487 U.S. 1012, 1019 (1988)). Similarly, the 11th Circuit stated
that:

                                           - 10 -
       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.

United States v. Yates, 438 F.3d 1307, 1315-16 (11th Cir. 2006). This contrasts with the
2nd Circuit, which had 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.” United States v. Gigante, 166 F.3d 75, 81 (2d. Cir. 1999).
It went on to hold that the witness’s terminal illness satisfied the “exceptional
circumstances” requirement. Id.

       Having reviewed the current state of the law, we conclude that the test articulated
in Craig provides the bare minimum protections for testimony via two-way
communications. We note that, in Craig, the procedure involved a child witness still
being in the physical presence of both the defense attorney and the prosecutor. The
concern addressed was that the child witness would be unable to testify at all in the
presence of the defendant. The case in Craig triggered multiple public policy
considerations, the impact on the victim and also the ability of the State to obtain the
testimony of an important witness at all, considering that she could not speak in the
defendant’s presence. The policy in Craig still, however, included that the child witness
come to the court house, be sworn, and then go into another room away from the
defendant to be examined by the prosecutor and cross-examined by the defense attorney,
both of whom were present in the room with the child witness. As previously stated, the
witness being present in court, being sworn and then examined in the physical presence
of the attorneys provided the defendant some assurance of the veracity of the testimony.

       While we concede that two-way videoconferencing more closely approximates
face-to-face confrontation, it is in no way constitutionally equivalent to the face-to-face
confrontation envisioned by the Sixth Amendment. We respectfully but firmly disagree
with the trial court’s finding that “if the software works the way it should work, will be,
in my opinion, as good as the person being here live.” Further, two-way video
conferencing allows for the witness to testify remotely and not come to the courthouse at
all. The physical presence of the witness in the courthouse is, itself, a significant moment
for the witness, during which any witness in a criminal proceeding understands the wide-
ranging implications their testimony may have on the life of another. Foregoing in-
person testimony potentially removes a witness’s understanding of the enormity of those
implications. We are not inclined to remove the requirement of physical presence of a
witness in the courthouse, save for instances in which the most necessary public policy
considerations arise. We hold that face-to-face confrontation in Tennessee means simply
                                           - 11 -
that, face-to-face communication, unless there is some greater public interest that
overrides the directives of our great state’s constitution.

       Having so decided, we remand this case back to the trial court to make a specific
finding, using the law as articulated in Craig, about the public policy implications
triggered by the circumstances of each of the witnesses herein. We highlight that, in
Craig, the court allowed for one-way closed circuit television where the trial court found:
(1) the procedure is necessary to protect the child witness’s welfare, (2) the child witness
would herself be traumatized specifically by the defendant’s presence; and (3) the child
witness would suffer more than de minimis distress in the defendant’s presence. Id. 855-
56 (emphasis added). Therefore, before permitting a witness to testify via two-way
videoconference, the court must make a case-specific and witness-specific determination
that the denial of the defendant’s confrontation right is necessary to further an important
public policy interest. In line with Craig, the court should consider the negative
implications and or trauma to the witness and relative importance of the testimony. If the
court finds that the circumstances weigh in favor of allowing two-way video
conferencing, it must do its best to take steps to assure the reliability of the remote
testimony. We heed the words in The Blessings of Liberty, “A witness ‘may feel quite
differently when he 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 (quoting Zechariah Chaffee,
Jr., The Blessings of Liberty 35 (1956)).

                                      II. Conclusion

        In accordance with the aforementioned reasoning and authorities, we conclude that
the standard as articulated in Maryland v. Craig, 497 U.S. 836 (1990), should extend to
two-way video conferencing technology. As such we reverse and remand this case to the
trial court for a case-specific and witness-specific determination that the denial of the
defendant’s confrontation right is necessary to further an important public interest.


                                              ____________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




                                           - 12 -
