by Daniel Cook*
The Sixth Amendment’s Confrontation Clause calls into question an increasingly common practice during the COVID-19 pandemic: testimony by two-way video teleconferencing at criminal trials. Proponents of video testimony argue that it is consistent with Maryland v. Craig, which held that the Confrontation Clause might be satisfied absent a physical confrontation as long as the denial of confrontation is necessary for trial and the testimony’s reliability is otherwise assured. Opponents of video testimony rely on Crawford v. Washington, which was decided two decades after Craig and held that the Sixth Amendment’s original meaning categorically mandates confrontation, at least with respect to testimonial hearsay. Importantly, Crawford held that judicial determinations of reliability are an insufficient basis for departing from the original meaning of the Confrontation Clause. Although Crawford did not directly address video testimony, some courts and commentators believe that Crawford supplanted Craig with a categorical rule requiring face-to-face confrontation, which video testimony may violate. This Contribution argues that Crawford embodied a sea change in Confrontation Clause jurisprudence, such that Craig no longer governs the admissibility of video testimony at criminal trials.
The Sixth Amendment’s Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”1 In Coy v. Iowa, the Supreme Court held that the Confrontation Clause guarantees criminal defendants the right to confront face-to-face the witnesses giving evidence against them at trial.2 The issue in Coy was whether it violated the Confrontation Clause to place a screen between the defendant and child sexual assault victims when the victims gave testimony against the defendant.3 The Court held that this practice violated the right to confrontation, noting that it was “difficult to imagine a more obvious or damaging violation of the defendant’s right to a face-to-face encounter.”4
In Maryland v. Craig, the Supreme Court qualified Coy, holding that the right to face-to-face confrontation is not absolute and may yield to the necessities of trial upon a sufficient showing of reliability.5 The issue in Craig was whether it violated the Confrontation Clause for a child witness in a child abuse case to testify against the defendant outside the defendant’s physical presence by one-way closed-circuit television.6 The Court found that the Confrontation Clause does not categorically mandate that the child witnesses give testimony in the defendant’s presence, so long as the alternative procedure—in this case, one-way video testimony—was necessary to further an important state interest and accompanied by sufficient assurances of reliability.7 The Craig Court concluded that because there was evidence the child witnesses could not effectively communicate in the physical presence of the defendant and had testified under oath, subject to full cross-examination, and observable by the judge, jury, and defendant, the alternative to face-to-face confrontation was both necessary and reliable such that it did not violate the Sixth Amendment.8
The Craig Court based its decision on Ohio v. Roberts, which established the “indicia of reliability” test for the admission of hearsay.9 Roberts held that hearsay—out-of-court statements given by a witness not present at trial—might satisfy the Confrontation Clause when the witness is shown to be unavailable and their statement is accompanied by sufficient “indicia of reliability” or evidence of trustworthiness.10 The Roberts Court stated that longstanding hearsay exceptions presumably satisfy the indicia of reliability requirement.11 However, statements that fall outside longstanding hearsay exceptions are inadmissible absent a showing of particularized guarantees of trustworthiness.12 The Craig Court effectively adopted the Roberts rule and applied it to one-way video testimony by substituting necessity for unavailability and holding oath, cross-examination, and observability to be sufficient evidence of reliability.13
In Crawford v. Washington, the Supreme Court overruled Roberts and held that testimonial statements of witnesses who do not appear at trial are categorically inadmissible unless the witnesses are unavailable to testify and the defendant had a prior opportunity for cross-examination.14 The Crawford Court emphatically rejected reliability-based balancing in the Confrontation Clause context, noting that Roberts’ indicia of reliability standard was so amorphous that some courts attached the same significance to opposite facts.15 As a result, Roberts failed to protect criminal defendants from core Confrontation Clause violations.16 Critically, Roberts was irreconcilable with common law history and the original meaning of the Confrontation Clause as understood by the Framers.17 Per Crawford, unless the hearsay-proponent could show that the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination, the out-of-court statement could not be admitted without running afoul of the Confrontation Clause’s original meaning.18 In Hemphill v. New York, the Supreme Court reaffirmed Crawford’s approach to the Confrontation Clause.19 Though Crawford did not expressly overrule Craig, its originalist rationale and rejection of reliability-based balancing are inconsistent with Craig, such that Craig can no longer control the admission of video testimony at criminal trials.20
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The controversy before the Crawford Court was whether an unavailable witness’s out-of-court testimonial statements could be admitted in a criminal trial even though the defendant had not been afforded a prior opportunity for cross-examination.21 In the Crawford Court’s view, common law history and the practices and decisions of the early American Republic established that the Framers intended for the Confrontation Clause to address the evils of ex parte examinations as epitomized by the Marian statutes and the trial of Sir Walter Raleigh.22 Because, to redress the abuses of ex parte examinations, common law courts refused to admit out-of-court statements unless they had been subjected to a prior opportunity for cross-examination, the Crawford Court held that this requirement inheres in and is categorically required by the Confrontation Clause.23 Moreover, because the Roberts “indicia of reliability” test was inconsistent with the categorical common law rule in that it permitted the admission of testimonial hearsay that had not been subjected to a prior opportunity for cross-examination, the Crawford Court overruled Roberts.24
It follows from Crawford that if the common law required face-to-face confrontation of witnesses who appeared at trial and this requirement was developed to limit the abuses of ex parte examinations, then the requirement of face-to-face confrontation also inheres in and is categorically required by the Confrontation Clause.25 Indeed, there is ample evidence, developed directly in Crawford, that the common law required face-to-face confrontation of witnesses who appeared at trial to limit the abuses of ex parte examinations.26
The irreducible, literal meaning of the Confrontation Clause is “a right to meet face to face all those who appear and give evidence at trial.”27 The right to confront accusers face-to-face dates to the Romans.28 As the Roman Governor Festus stated in Acts 25:16, “[i]t is not the manner of the Romans to deliver any man up to die before the accused has met his accusers face to face.”29 This usage accords with the Latin origins of the word “confront” (from “contra,” meaning “against” or “opposed,” and “frons,” meaning “forehead”), which William Shakespeare famously referenced in his play, Richard II.30
Although the Confrontation Clause is rooted in ancient tradition, the Framers source for the clause was common law.31 The common law tradition is one of live testimony in open court subject to adversarial testing.32 As explained by Blackstone, confrontation in open court promotes the discovery of truth by allowing the jury to observe the witness’s behavior while testifying and responding to questions.33 Nonetheless, England occasionally adopted civil-law procedures in which judges examined suspects and witnesses before trial and then read their statements in court in lieu of live testimony.34 The enactment of the 16th century Marian bail and committal statutes routinized these examinations.35 However, these examinations were rife with abuse and fostered considerable controversy.36
Defendants against whom ex parte examinations were admitted frequently demanded face-to-face confrontation.37 Sir Walter Raleigh, whose infamous treason trial came to symbolize the evils of ex parte examination, famously demanded that his inquisitors “call [his] accuser before [his] face.”38 As the Supreme Court explained, “the problem [with Sir Walter Raleigh’s trial] was that the judges refused to allow Raleigh to confront [his accuser] in court, where he could cross-examine him and try to expose his accusation as a lie.”39 After the trial, English law began to develop a formal confrontation right to limit these abuses.40 For example, the 17th century saw the emergence of treason statutes, which required witnesses to confront the accused “face to face” at arraignment.41 These statutes were enacted in response to Sir Walter Raleigh’s famous demand for face-to-face confrontation.42
Courts also developed a rule prohibiting the admission of pretrial examinations unless the witness was unavailable and the defendant had a prior opportunity for cross-examination.43 This requirement was developed so that out-of-court statements could be admitted without denying the defendant the benefits of face-to-face confrontation.44 This connection is evident in Fenwick’s Case, in which the requirement that “no deposition of a person can be read . . . unless the party . . . to be read against . . . might have cross-examined him” was justified on the grounds that, “our constitution is that the person shall see his accuser.”45 Mattox v. United States, the Supreme Court’s leading early confrontation case, similarly explained that confrontation exists to preserve for the defendant “the advantage he has once had of seeing the witness face to face, and of subjecting him to the ordeal of a cross-examination.”46
These historical developments establish that the common law required face-to-face confrontation of witnesses appearing at trial.47 If a witness was unavailable, their statements could only be admitted if the defendant had a prior opportunity for cross-examination.48 The purpose of the latter rule was to preserve the right to face-to-face confrontation.49 Together, they prevented abusive ex parte examinations.50 Therefore, under the logic of Crawford, the Confrontation Clause incorporates a categorical right to face-to-face confrontation.51
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Craig is irreconcilable with the Confrontation Clause’s categorical guarantee of face-to-face confrontation.52 Craig permits judges to dispense with face-to-face confrontation when they determine it is necessary and that alternative procedures are reliable.53 Therefore, Craig impermissibly allows judges to dispense with one of the Constitution’s procedural guarantees and is irreconcilable with Crawford.54
As the Supreme Court recently noted in Hemphill, when the Constitution guarantees certain procedural protections to criminal defendants, balancing those protections against competing interests is unnecessary and impermissible.55 Balancing may only be performed when the protections in question are prophylactics designed to protect constitutional rights rather than the constitutional rights themselves.56 The text of the Sixth Amendment is clear that confrontation is a substantive guarantee and not a mere prophylactic erected to protect some underlying right: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . .”57 As the Crawford Court explained, this language permits only those exceptions that existed at the founding.58
Reliability-based balancing determinations were not among the common law exceptions to confrontation.59 Nor were they viewed favorably; the trial of Sir Walter Raleigh was pervaded by reliability determinations purporting to justify the denial of Raleigh’s traditional confrontation rights.60 As the Framers surely realized, “[d]ispensing with confrontation because testimony is obviously reliable, is akin to dispensing with jury trial because a defendant is obviously guilty.”61 Therefore, Craig is inconsistent with Crawford and deeply discordant with the common law genesis of confrontation.62
Attempts to resuscitate Craig are unavailing, given the Supreme Court’s recent decision in Hemphill. Hemphill affirmed that Crawford is an authoritative repudiation of reliability-based balancing of Confrontation Clause protections.63 Craig, which is little more than the Roberts test applied to face-to-face confrontation, cannot survive Hemphill’s generalized rejection of balancing in favor of the procedures the Confrontation Clause guarantees.64 Because the Confrontation Clause guarantees the right to face-to-face confrontation, Craig is no longer good law.65
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In addition to conflicting with the Confrontation Clause’s original meaning, Craig was animated by several concerns about the continued viability of admitting hearsay under a categorical view of face-to-face confrontation,66 concerns that are no longer valid after Crawford. The severely diminished vitality of the Craig Court’s concern that recognizing a categorical right to face-to-face confrontation would undermine the longstanding practice of admitting hearsay further undermines Craig.
One concern evident in Craig was that “a literal reading of the Confrontation Clause [as categorically requiring face-to-face confrontation] would abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme.”67 The Court reasoned that if it recognized a categorical right to face-to-face confrontation, witnesses would need to physically appear at trial every time testimony is admitted against a defendant.68 This would have undermined the Court’s prior decisions legitimizing the admission of hearsay under certain circumstances.69
The Craig Court failed to recognize that the Confrontation Clause imposes different requirements on out-of-court hearsay declarants as distinguished from witnesses who appear live at trial.70 As Crawford explained, testimonial hearsay by out-of-court declarants may be admitted without offending the Confrontation Clause as long as the declarant is unavailable and there was a prior opportunity for cross-examination.71 Contrary to Craig, requiring face-to-face confrontation of witnesses who appear live at trial would neither impose additional requirements on the admission of hearsay nor upset prevailing practices governing its admission.72
Another concern evident in Craig was that recognizing a categorical right to face-to-face confrontation while allowing exceptions to the hearsay rule would introduce an anomaly into Confrontation Clause jurisprudence.73 If Craig is still good law after Crawford, the anomaly is reversed; testimonial hearsay is subject to a categorical rule, while face-to-face confrontation is subject to exceptions.74 Furthermore, the anomaly is worse; the Confrontation Clause guarantees the common law equivalent of face-to-face confrontation whenever witnesses are unavailable but fails to guarantee face-to-face confrontation when witnesses appear at trial.75 If Crawford is construed as overruling Craig, then this inconsistency disappears. This result is only logical. As the Supreme Court noted in Coy, face-to-face confrontation is the irreducible, literal meaning of the Confrontation Clause.76 At a minimum, Crawford categorically guarantees one of the Confrontation Clause’s non-literal meanings, namely the requirement that out-of-court hearsay declarants be subject to a prior opportunity for cross-examination. A fortiori, it should categorically guarantee its literal meaning—face-to-face confrontation—as well.77
Furthermore, one reason the Court overruled Roberts was that it was unpredictable and had been applied inconsistently by lower courts.78 The Craig standard is similarly unpredictable and inconsistent and should be obviated in favor of a categorical rule which precludes reliability-based judicial decision-making.79
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Consistent with the Confrontation Clause’s text and history and the apparent failures of Craig, Congress and individual Supreme Court justices have signaled that face-to-face confrontation is a categorical constitutional right. Although Congress may not legislatively supersede decisions of the Supreme Court interpreting and applying the Constitution,80 congressional action that accords with proffered interpretations of the Constitution may persuasively supplement other arguments for that interpretation grounded in the Constitution’s text and history.81
Congress’s recent decision to omit criminal trials from the list of proceedings at which two-way video testimony may be authorized under the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) suggests that Congress views the use of such video testimony at criminal trials as constitutionally suspect.82 Congress passed the CARES Act in March 2020 to alleviate massive economic disruptions caused by the then-nascent COVID-19 pandemic.83 The CARES Act was unparalleled in scope and affected virtually every aspect of life in the United States.84
One provision of the CARES Act conditionally authorized video teleconferencing for criminal proceedings.85 Under this provision, if the Judicial Conference of the United States finds that COVID-19 is materially affecting the functioning of the federal courts, then the chief judge of any district court covered by the Judicial Conference’s findings may authorize the use of video teleconferencing.86 Only those criminal proceedings listed under the statute are eligible for video teleconferencing.87 Moreover, video teleconferencing may only take place with the defendant’s consent after consultation with counsel, which is concordant with the rule that a defendant may waive face-to-face confrontation.88
The proceedings eligible for video teleconferencing under this provision include detention hearings, initial appearances, preliminary hearings, waivers of indictment, arraignments, probation and supervised release revocation hearings, pretrial release revocation hearings, and misdemeanor pleas and sentencings.89 Felony pleas and sentencings are also eligible for video teleconferencing, but only if necessary to protect public health and safety and only when delaying the proceedings would harm the interests of justice.90 Criminal trials are notably absent from the list of eligible proceedings.91 The statute does not contain a “catch-all” provision that would otherwise permit video teleconferencing at criminal trials.92
Congress has previously enacted legislation, including 18 U.S.C. § 3509, which suggested that face-to-face confrontation is not categorical.93 Section 3509 effectively codified Craig by establishing procedures under which two-way closed-circuit video testimony may be used by testifying child witnesses in federal child sex abuse cases. However, Congress’s recent decision to restrain two-way video teleconferencing authorized under the CARES Act to non-trial proceedings better accords with Crawford and Hemphill than the earlier Section 3509. Moreover, Section 3509 merely codified the narrow holding in Craig and did not reflect a broader effort by Congress to obviate face-to-face confrontation rights.94 Furthermore, Section 3509 was enacted before Crawford recast Confrontation Clause jurisprudence and may no longer be constitutional, insofar as Crawford overruled Craig and two-way video testimony is incompatible with Crawford’s constitutional strictures.95
Finally, Confrontation Clause jurisprudence has steadily moved away from Craig in the years since that case was decided.96 In 2002, the Supreme Court rejected proposed changes to the Federal Rules of Criminal Procedure, which would have authorized video testimony at trial in lieu of depositions.97 Justice Scalia filed a statement castigating the proposed changes for being inconsistent with Craig and the Confrontation Clause’s purpose “to compel accusers to make their accusations in the defendant’s presence . . . .”98 Underscoring his doubts, Justice Scalia wrote that “[v]irtual confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones.”99 Notably, Justice Scalia wrote the majority opinion in Crawford the following year.100
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Craig is profoundly out of step with Confrontation Clause jurisprudence, which places great weight on the Sixth Amendment’s original meaning and reflects a deep skepticism of judicial discretion to obviate a criminal defendant’s constitutional rights. Crawford, not Craig, provides the appropriate framework for determining whether video testimony at criminal trials is consistent with the Constitution.
* Daniel Cook is a J.D. Candidate (2023) at New York University School of Law. This Contribution is a commentary on the problem at the 2022 Herbert Wechsler National Criminal Law Moot Court Competition, hosted by the University at Buffalo School of Law. The question presented was whether the categorical analysis of the Sixth Amendment’s Confrontation Clause developed in Crawford v. Washington, 541 U.S. 36 (2004), should supplant the policy-based balancing test for video testimony set forth in Maryland v. Craig, 497 U.S. 836 (1990). This Contribution distills one side of the argument assigned to the author’s team and the views expressed in this Contribution do not necessarily represent the author’s views.
1. U.S. Const. amend. VI.
2. 487 U.S. 1012, 1021 (1988).
3. Id. at 1014–15.
4. Id. at 1020.
5. 497 U.S. 836, 849 (1990). The Craig Court narrowly held that “where necessary to protect 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, the 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.” Id. at 857. Justice Scalia, who later authored Crawford v. Washington, characterized Craig as applying “‘interest-balancing’ analysis where the text of the Constitution simply does not permit it.” Id. at 870 (Scalia, J., dissenting).
6. Id. at 840.
7. Id. at 856–57.
8. Id. at 857, 860.
9. Id. at 848 (citing Ohio v. Roberts, 448 U.S. 56, 63 (1980)).
10. Roberts, 448 U.S. at 66.
11. See id. at 66 (“[C]ertain hearsay exceptions rest upon such solid foundations that admission of virtually any evidence within them comports with the substance of the constitutional protection.” (internal quotation marks omitted)).
12. Id. at 66.
13. See Craig, 497 U.S. at 850 (citing Roberts for the proposition that the right to confront witnesses may be satisfied absent a physical, face-to-face confrontation only where denial of such confrontation is necessary, and reliability is otherwise assured).
14. 541 U.S. 36, 59 (2004).
15. Id. at 63–64.
16. Id.
17. Id. at 53–54, 63.
18. Id. at 59.
19. 142 S. Ct. 681, 691–92 (2022). Per the Court, “[i]f Crawford stands for anything, it is that the history, text, and purpose of the Confrontation Clause bar judges from substituting their own determinations of reliability for the method the Constitution guarantees.” Id. at 691.
20. See United States v. Cox, 871 F.3d 479, 495 (6th Cir. 2017) (Sutton, J., concurring) (“Crawford explained that the Framers drafted the Confrontation Clause to ensure that those accused of the worst crimes have the opportunity to prove their innocence through a specific, time-tested procedure. Craig is in tension with, if not in opposition to, that holding.”).
21. Crawford v. Washington, 541 U.S. 36, 38 (2004).
22. Id. at 50.
23. Id. at 50, 53–54, 59.
24. See id. at 60 (explaining that the Roberts test allowed for the admission of statements containing ex parte testimony).
25. See id. at 57–59 (justifying the categorical rule for testimonial hearsay by placing primacy on faithfulness to the Framers’ understanding of the Confrontation Clause).
26. See id. at 43–45 (establishing that a face-to-face meeting between the accuser and the accused is essential to the confrontation right).
27. Coy v. Iowa, 487 U.S. 1012, 1021 (1988) (emphasis added) (internal quotations omitted) (quoting California v. Green, 399 U.S. 149, 175 (1970) (Harlan, J., concurring)).
28. Coy, 487 U.S. at 1015–16.
29. Id. (quoting Acts 25:16) (emphasis added).
30. See id. at 1016 (“Then call them to our presence; face to face, and frowning brow to brow, ourselves will hear the accuser and the accused freely speak . . . .” (emphasis added) (quoting William Shakespeare, Richard II act 1, sc. 1, l. 17)).
31. See Crawford, 541 U.S. at 54 (“[T]he ‘right . . . to be confronted with the witnesses against him’ is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding.” (citation omitted)).
32. Id.
33. See id. at 61–62 (citing 3 William Blackstone, Commentaries *373).
34. See id. at 43 (citing J. Stephen, History of the Criminal Law of England 326 (1883)).
35. See id. at 43–44 (“Pretrial examinations became routine under two statutes passed during the reign of Queen Mary in the 16th century . . . . These Marian bail and committal statutes required justices of the peace to examine suspects and witnesses in felony cases and to certify the results to the court.”).
36. See id. at 44 (explaining that pretrial examinations achieved notoriety after they were used in the treason trial of Sir Walter Raleigh, which led to the development of statutory and judicial reforms that “limited these abuses”).
37. Id. at 43.
38. Id. at 44 (quoting Raleigh’s Case, 2 How. St. Tr. 1, 15–16 (1603)).
39. Crawford, 541 U.S. at 62.
40. Id. at 44.
41. Id.
42. See id. (connecting the treason statute reforms to the maltreatment of Sir Walter Raleigh).
43. Id. at 45.
44. See id. at 45–47 (explaining that the prior opportunity for cross-examination requirement developed to assure to the defendant the benefits of ordinary face-to-face confrontation, specifically cross-examination).
45. 13 How. St. Tr. 537, 592 (H.C. 1696) (Powys) (emphasis added) (punctuation omitted).
46. 156 U.S. 237, 244 (1895) (emphasis added).
47. See Crawford, 541 U.S. at 43–45 (establishing that a face-to-face meeting between an accuser and the accused is an essential part of the confrontation right).
48. Id. at 44.
49. E.g., Mattox, 156 U.S. at 244; see also Coy, 487 U.S. at 1021 (explaining that the irreducible, literal meaning of the Confrontation Clause is “a right to meet face to face all those who appear and give evidence at trial” (quoting California v. Green, 399 U.S. 149, 175 (1970)).
50. See Crawford, 541 U.S. at 44 (explaining that confrontation rights developed to limit abusive ex parte examinations).
51. See id. at 57–59 (justifying the categorical rule for testimonial hearsay by placing primacy on faithfulness to the Framers’ understanding of the Confrontation Clause).
52. See Crawford v. Washington, 541 U.S. 36, 50, 53–54, 59 (2004) (finding that the Confrontation Clause incorporates the rules used to constrain ex parte examinations at common law).
53. Maryland v. Craig, 497 U.S. 836, 857 (1990).
54. See People v. Jemison, 952 N.W.2d 394, 399 (Mich. 2020) (noting the incompatibility but leaving it up to the Supreme Court to expressly overrule Craig); cf. Crawford, 541 U.S. at 62 (criticizing the Roberts test for allowing courts to obviate constitutionally mandated confrontation based on a mere judicial determination of reliability). But see Craig, 49 U.S. at 844 (“We have never held . . . that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial.”).
55. See Hemphill v. New York, 142 S. Ct. 681, 693 (2022) (discussing the Fifth Amendment privilege against self-incrimination).
56. See id. at 692 (explaining that balancing may justify exceptions to the Fourth Amendment’s exclusionary rule but not the Fourth Amendment’s “substantive guarantee”).
57. U.S. Const. amend. VI.
58. Crawford, 541 U.S. at 54.
59. Id. at 62.
60. Id.
61. Id.
62. See id. (“It is not plausible that the Framers’ only objection to the trial was that Raleigh’s judges did not properly weigh these [reliability] factors before sentencing him to death. Rather, the problem was that the judges refused to allow Raleigh to confront [his accuser] in court, where he could cross-examine him and try to expose his accusation as a lie.” (emphasis added)).
63. See Hemphill, 142 S. Ct. at 691 (“If Crawford stands for anything, it is that the history, text, and purpose of the Confrontation Clause bar judges from substituting their own determinations of reliability for the method the Constitution guarantees.”).
64. See id. (endorsing Crawford’s “emphatic rejection” of Roberts reliability-based balancing because it is inconsistent with the procedural protections guaranteed by the Confrontation Clause).
65. But see United States v. Wandahsega, 924 F.3d 868, 879 (6th Cir. 2019) (applying Craig because “Crawford did not [expressly] overturn Craig”); United States v. Cox, 871 F.3d 479, 492 (6th Cir. 2017) (Sutton, J., concurring) (arguing that even though lower courts are not entitled to disregard Craig, Craig is irreconcilable with Crawford’s rejection of Roberts).
66. E.g., Maryland v. Craig, 497 U.S. 836, 847–49 (1990).
67. Id. at 848 (internal quotes omitted).
68. See id. at 849 (insisting on an absolute right to face-to-face confrontation would abrogate the hearsay exception).
69. Id.
70. See id. at 854–65 (Scalia, J., dissenting) (explaining that the Confrontation Clause treats witnesses at trial differently than hearsay evidence).
71. Crawford v. Washington, 541 U.S. 36, 68 (2004).
72. See id. (holding that all the Confrontation Clause demands of testimonial hearsay is unavailability and prior opportunity for cross-examination).
73. Craig, 497 U.S. at 850.
74. Compare Craig, 497 U.S. at 850 (reliability-based balancing exception to confrontation), with Crawford, 541 U.S. at 68 (categorical rule admitting only those exceptions that existed at the founding).
75. Cf. Crawford, 541 U.S. at 50 (noting that the Confrontation Clause governs both in-court testimony and out-of-court statements).
76. Coy v. Iowa, 487 U.S. 1012, 1021 (1988); see also Crawford, 541 U.S. at 43–45 (establishing that a face-to-face meeting between the accuser and the accused is an essential part of the confrontation right).
77. See Coy, 487 U.S. at 1021 (noting that face-to-face confrontation is the literal meaning of the confrontation clause)
78. Crawford, 541 U.S. at 63.
79. Compare United States v. Carter, 907 F.3d 1199, 1208 (9th Cir. 2018) (inability to travel due to being seven months pregnant does not provide necessity), with Molina v. State, No. 01-17-00075-CR, 2018 WL 3150419, at *4 (Tex. App. June 28, 2018) (inability to travel due to being seven months pregnant provides necessity).
80. Dickerson v. United States, 530 US. 428, 437 (2000).
81. Cf. Edwin Meese III, The Law of the Constitution, 61 Tul. L. Rev. 979, 985–86 (1987) (arguing that constitutional interpretation is proper to each of the coordinate branches of government).
82. See Pub. L. No. 116-136, 134 Stat. 281, § 15002(b) (2020) (granting the judiciary the ability to authorize video testimony at various criminal proceedings not including criminal trials).
83. Emily Cochrane & Sheryl G. Stolberg, $2 Trillion Coronavirus Stimulus Bill Is Signed Into Law, N.Y. Times (Mar. 27, 2020), https://www.nytimes.com/2020/03/27/us/politics/coronavirus-house-voting.html.
84. Id.
85. Pub. L. No. 116-136, 134 Stat. 281, § 15002(b)(1).
86. Id.
87. Id.
88. Id. at (b)(4); Brookhart v. Janis, 384 U.S. 1, 3 (1966) (defendant may waive face-to-face confrontation).
89. Pub. L. No. 116-136, 134 Stat. 281, § 15002(b)(1)(A)–(J).
90. Id. at (b)(2)(A).
91. See id. (omitting criminal trials).
92. See id. (omitting a catch-all provision).
93. See 18 U.S.C. § 3509(b) (codifying Craig for child sex abuse witnesses).
94. See id. (tracking Craig closely).
95. Id.
96. Compare Maryland v. Craig, 497 U.S. 836, 853 (1990) (allowing necessity to obviate face-to-face confrontation), with Crawford v. Washington, 541 U.S. 36, 68–69 (2004) (rejecting reliability-based balancing in favor of strict application of the Sixth Amendment’s original meaning).
97. Order of the Supreme Court, 207 F.R.D. 89, 93 (2002) (Scalia, J.).
98. Id. at 94. Justice Scalia noted that two-way video testimony could not make the confrontation issue go away: “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.
99. Id.
100. Crawford, 541 U.S. at 37.