From the Minnesota Court of Appeals' majority opinion yesterday in State v. Trifiletti, written by Judge Randall Slieter and joined by Judge Matthew Johnson; the opinion is long, but here's the legal heart of the matter:
Did the state prove that M.W.'s [a witness's] possible exposure to COVID-19 and fully-dissipated-cough symptoms, which prevented her from testifying in person [at defendant's April 2021 retrial], render her unavailable [so that her past testimony at an earlier trial could be introduced, or alternative that she could be allowed to testify by video, without violating a criminal defendant's Confrontation Clause rights]?
M.W.'s possible exposure to COVID-19 without any symptoms of illness that prevents her from providing live, in-person testimony, does not satisfy any of the recognized circumstances rendering a witness unavailable. Therefore, she was available to provide live, in-person testimony. M.W. was willing to testify, she was physically and mentally able to testify, she was within the jurisdiction, and she remained in contact with the prosecutor.
The reason provided by the district court that M.W. was unavailable was its reasonable public-health concern for those in the courtroom who could potentially have been exposed to COVID-19. Our extensive review of the caselaw related to witness unavailability reveals no such public-health basis for admitting an unconfronted, testimonial statement against a criminal defendant. The district court erred by allowing the state to read her prior testimony into evidence. Therefore, Trifiletti's Sixth Amendment right to confront the witnesses against him was violated….
