James Buie was accused of breaking into a Grand Rapids home and sexually assaulting two children and their adult babysitter. Two expert witnesses who testified at trial did so via two-way interactive video conferencing. Before the witnesses testified, Buie’s attorney told the court that she had no objection to the use of video technology, but that Buie, “wanted to question the veracity of the proceedings . . . .”
One of the two witnesses, an expert in child sexual abuse who had collected DNA evidence and examined the two children, was employed by Wayne State University and Children’s Hospital of Michigan in Detroit at the time of trial. The other witness, who testified about DNA testing he had performed in the case, was located in Virginia at the time of trial, but had been previously employed by the Michigan State Police laboratory in Grand Rapids. A third witness, who testified in person at trial, stated that the DNA collected and examined by the previous two experts was eventually matched to Buie’s DNA through CODIS (Combined DNA Indexing System), a DNA data bank.
A jury convicted Buie of five counts of first-degree criminal sexual conduct and one count of felony-firearm. The trial court sentenced him as a fourth-habitual offender to life in prison for the five first-degree criminal sexual conduct convictions, consecutive to a two-year prison sentence for the felony-firearm conviction.
Buie appealed, arguing that the use of two-way video technology violated his constitutional right to confront the witnesses against him. In a published opinion, the Court of Appeals remanded the case to the trial court for an evidentiary hearing to determine whether allowing the two witnesses to testify via two-way interactive video technology was necessary to further an important public policy or state interest; the Court of Appeals retained jurisdiction. The Michigan Supreme Court declined the parties’ request to intervene at that time, but did direct the trial court to make findings on remand regarding Michigan Court Rule 6.006(C)’s requirements of “good cause” and “consent.” Under that court rule, upon a showing of “good cause,” a circuit court may use two-way interactive video technology to take testimony from a person at another location in specified proceedings, including trials, “with the consent of the parties ….”
The trial court held an evidentiary hearing at which the prosecutor, Buie’s attorney, and Buie testified. Buie’s defense counsel testified that she consented to the use of two-way video technology, but that Buie objected to that and “everything” about the trial. The lawyer explained that, when she told the trial court that Buie “wanted to question the veracity of the proceedings,” she was communicating his objection to the court. The trial judge ruled that the two witnesses were properly allowed to testify by video, and that Buie consented to the use of that technology. The judge further held that important state interests or public policies justified using video technology; allowing the two experts to testify via video-conference saved costs, insured an efficient trial, and prevented further delay, preserving Buie’s right to a speedy trial.
The Court of Appeals reversed the trial court in a published opinion and vacated Buie’s convictions. The Court of Appeals held that no public policy or state interest at issue outweighed Buie’s rights under the Confrontation Clause. Defense counsel’s agreement to use two-way interactive video technology did not waive Buie’s constitutional right to confrontation; the trial court plainly erred in permitting the two experts to testify by video, the appellate court said. The Court of Appeals also held that MCR 6.006(C) does not permit defense counsel to consent to the use of two-way interactive video technology where a defendant objects to the procedure. The prosecutor appeals.