RENDERED: AUGUST 13, 2021; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-1383-MR

COMMONWEALTH OF KENTUCKY APPELLANT 

v. 

FROM OLDHAM CIRCUIT COURT

HONORABLE KAREN A. CONRAD, SPECIAL JUDGE

ACTION NO. 18-CR-00203

GARY GARDNER APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: CLAYTON, CHIEF JUDGE; ACREE AND LAMBERT, JUDGES.

LAMBERT, JUDGE: The Commonwealth of Kentucky appeals the Oldham 

Circuit Court’s order denying the Commonwealth’s motion to present witness 

testimony at trial via two-way videoconferencing platforms. Following a careful 

review of the record and the law, we affirm.
-2-

On August 10, 2018, an Oldham County grand jury indicted Gary 

Gardner (“Gardner”) for complicity to commit fraudulent insurance acts (over 

$500.00). A jury trial was scheduled in the case for October 19, 2020. At a status 

conference on October 1, 2020, the Commonwealth expressed interest in 

presenting trial testimony from an inmate in federal prison via two-way 

videoconferencing technology. Gardner’s counsel objected to the use of remote 

testimony, and the trial court scheduled a hearing on the matter for October 7, 

2020. 

At the hearing, the Commonwealth made an oral motion to present a 

witness, Logan Silliman, via two-way videoconferencing platforms such as Zoom 

or Skype. Silliman was incarcerated at the federal correctional institution in 

Manchester, Kentucky. In support of its motion, the Commonwealth pointed to 

Kentucky Supreme Court Administrative Order (“Administrative Order”) 2020-

63(B)(1), which mandated Kentucky courts “hear civil and criminal matters using 

available telephonic and video technology to conduct all proceedings remotely.”1 

The Commonwealth further noted that not only would the correctional facility’s 

protocols in place at the time require Silliman to be quarantined for a 14-day 

period before he could be transferred to Oldham County, Silliman would have to 

 

1 Administrative Order 2020-63 became effective on August 1, 2020 in an effort to address the 

health and safety of court employees, elected officials, and the public during the COVID-19 

pandemic.
-3-

be quarantined for an additional 14-day period once he was transferred to the 

Oldham County jail.

Gardner’s counsel again objected, arguing that allowing Silliman to 

testify remotely would violate Gardner’s right to in-person cross-examination. By 

order entered October 7, 2020, the trial court denied the Commonwealth’s motion 

to present Silliman’s testimony via two-way video: 

The Commonwealth has not demonstrated that 

using Zoom or other video technology to secure a 

witness’ testimony is necessary to further an important 

public policy. The Commonwealth has the ability to 

secure the witness’ attendance by utilizing [Kentucky 

Revised Statute] KRS 455.150 – Procedure for bringing 

material witness in state felony trial from federal prison. 

Though the [c]ourt is cognizant of the threat of the 

[COVID-19] virus, especially to inmate populations, the 

[c]ourt believes the defendant’s 6th Amendment Right to 

confront the witness is superior especially as the [c]ourt 

and [c]orrections take all steps necessary to limit the 

spread of the virus. 

For the foregoing reasons, the [c]ourt DENIES the 

Commonwealth’s request to have its witness present his 

testimony via Zoom or another remote video technology. 

The Commonwealth filed an interlocutory appeal pursuant to Kentucky Rule of 

Criminal Procedure (RCr) 12.04 and KRS 22A.020 seeking review of the trial 

court’s order. 

Before we reach the merits of the Commonwealth’s appeal, we must 

first address Gardner’s argument that the Commonwealth failed to comply with 
-4-

Kentucky Rule of Civil Procedure (CR) 76.12(4)(c)(v). That provision requires an 

appellant’s brief to contain a statement regarding whether arguments in the brief 

were preserved for appellate review.2 Gardner contends that the Commonwealth

failed to preserve the issues of whether Maryland v. Craig, 497 U.S. 836, 110 S.

Ct. 3157, 111 L. Ed. 2d 666 (1990), and the Sixth Amendment right of 

confrontation apply to two-way video testimony. However, we “may decide an 

issue not briefed on appeal when that issue flows naturally under our appellate 

review of the issue raised.” Commonwealth v. Pollini, 437 S.W.3d 144, 148 (Ky. 

2014) (internal quotation marks and citations omitted).

The trial court denied the Commonwealth’s motion, at least in part,

because the Commonwealth failed to demonstrate that using Zoom or other video 

technology was necessary to further an important public policy. A determination 

of the applicability of Craig to the facts in the present case is necessary for this 

Court to address the merits of the trial court’s ruling. Accordingly, we hold that 

any question with respect to the preservation of issues for appeal will not limit our 

review of the Commonwealth’s claims herein.

 

2 CR 76.12(4)(c)(v) provides that an appellant’s brief shall contain “[a]n ‘ARGUMENT’ 

conforming to the Statement of Points and Authorities, with ample supportive references to the 

record and citations of authority pertinent to each issue of law and . . . shall contain at the 

beginning of the argument a statement with reference to the record showing whether the issue 

was properly preserved for review and, if so, in what manner.”
-5-

We review a trial court’s ruling on the admissibility of evidence for an 

abuse of discretion. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999); 

see also Commonwealth v. Leahy, No. 2001-CA-002726-DG, 2003 WL 1270525 

(Ky. App. Feb. 7, 2003).

3

 “The test for abuse of discretion is whether the trial 

judge’s decision was arbitrary, unreasonable, unfair, or unsupported by sound legal 

principles.” Id.

The Sixth Amendment to the United States Constitution provides: 

“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be 

confronted with the witnesses against him[.]” U.S. CONST. amend. VI; see also

KY. CONST. § 11 (“In all criminal prosecutions the accused has the right to be 

heard by himself and counsel; to demand the nature and cause of the accusation 

against him; to meet the witnesses face to face, and to have compulsory process for 

obtaining witnesses in his favor.”).

However, a criminal defendant’s constitutional right to face-to-face 

confrontation is not absolute. Sparkman v. Commonwealth, 250 S.W.3d 667, 669

(Ky. 2008). Accordingly, in Maryland v. Craig, the United States Supreme Court

held that “a defendant’s right to confront accusatory witnesses may be satisfied 

absent a physical, face-to-face confrontation at trial [(1)] only where denial of such 

confrontation is necessary to further an important public policy and [(2)] only 

 

3 Cited to demonstrate consistency among appellate decisions rendered in the Commonwealth. 
-6-

where the reliability of the testimony is otherwise assured.” 497 U.S. at 850, 110 S.

Ct. at 3166. The Court in Craig explained that “[t]he requisite finding of necessity 

must of course be a case-specific one: The trial court must hear evidence and 

determine whether use of [platforms other than physical face-to-face testimony] is 

necessary to protect the welfare of the particular . . . witness who seeks to testify.” 

Id. at 855, 110 S. Ct. at 3169.

Since Craig, neither the Kentucky Supreme Court nor the United 

States Supreme Court has addressed the issue of whether the Craig analysis applies 

to two-way video testimony. However, the majority of federal and state courts 

have held that the Craig “necessity” standard must be satisfied before a witness 

may testify via a two-way videoconferencing platform. See, e.g., United States v. 

Carter, 907 F.3d 1199, 1208 n.4 (9th Cir. 2018); United States v. Abu Ali, 528 F.3d 

210, 240-41 (4th Cir. 2008); United States v. Yates, 438 F.3d 1307, 1313-14 (11th 

Cir. 2006); United States v. Bordeaux, 400 F.3d 548, 554-55 (8th Cir. 2005); State 

v. Mercier, 403 Mont. 34, 45, 479 P.3d 967, 975 (2021) (noting that the 

“overwhelming majority of jurisdictions have applied Craig to two-way video 

procedures”); State v. Rogerson, 855 N.W.2d 495, 501-03 (Iowa 2014).

On appeal, the Commonwealth argues that we should apply the

alternate approach to the issue of testimony presented via two-way video which 

was adopted by the United States Court of Appeals for the Second Circuit in 
-7-

United States v. Gigante, 166 F.3d 75 (2d Cir. 1999). In Gigante, the Second 

Circuit examined the trial court’s use of a two-way videoconferencing platform in 

which the witness and the defendant could see one another during the witness’ 

testimony. The court noted that the facts before it were different than those in the

Craig case, which involved testimony using “one-way closed-circuit television, 

whereby the witness could not possibly view the defendant.” Id. at 81. Thus, 

rather than applying Craig’s “necessity” standard, Gigante held that in cases where 

two-way videoconferencing technology is offered: 

[a] more profitable comparison can be made to the Rule 

15 deposition, which under the Federal Rules may be 

employed “[w]henever due to exceptional circumstances

of the case it is in the interest of justice that the testimony 

of a prospective witness of a party be taken and

preserved for use at trial.” Fed. R. Crim. P. 15(a). That 

testimony may then be used at trial “as substantive 

evidence if the witness is unavailable.” Fed. R. Crim. P. 

15(e). Unavailability is defined by reference to Rule 

804(a) of the Federal Rules of Evidence, which includes 

situations in which a witness “is unable to be present or 

to testify at the hearing because of . . . physical or mental 

illness or infirmity.” Fed. R. Evid. 804(a)(4).

(Emphasis added.) In the case at bar, the Commonwealth asserts that, because the 

courtroom personnel could have arranged video cameras such that Silliman and 

Gardner could see each other, albeit virtually, the situation in this case is much 

more similar to face-to-face confrontation than the one-way closed-circuit system 

at issue in Craig. Moreover, the Commonwealth argues that there are sufficient 
-8-

“exceptional circumstances” present in this case to dispense with Gardner’s right to 

in-person confrontation, specifically, the highly contagious nature of the COVID19 virus and the fact that the testifying witness is incarcerated. We disagree.

What is “necessary” under the Craig standard to allow witnesses to 

testify remotely is a high bar to meet. See United States v. Casher, No. CR 19-65-

BLG-SPW, 2020 WL 3270541, at *4 (D. Mont. Jun. 17, 2020). Over the past year, 

numerous federal district courts have held that, absent a specific showing that an 

individual witness was particularly vulnerable to COVID-19, and that other 

precautionary measures would not adequately protect the witness, general concerns 

about the spread of the virus do not justify abridging a defendant’s right to inperson confrontation. See, e.g., United States v. Kail, No. 18-CR-00172-BLF-1, 

2021 WL 1164787, at *1 (N.D. Cal. Mar. 26, 2021); United States v. Pangelinan, 

No. 19-10077-JWB, 2020 WL 5118550, at *4 (D. Kan. Aug. 31, 2020); Casher, 

2020 WL 3270541, at *3.

4

 

In the present case, the trial court, citing Craig, found that the 

Commonwealth failed to demonstrate that utilizing two-way video technology was 

necessary to further an important public policy. Further, the trial court pointed to 

KRS 455.150 to support its conclusion that the Commonwealth has the ability to 

 

4 We cite federal case law herein as persuasive, not mandatory, authority. 
-9-

secure Silliman’s attendance.5 In this case, there was no evidence presented by the 

Commonwealth that Silliman was particularly vulnerable to the risks of COVID-19 

and that other precautionary measures, such as the correctional facility’s protocols 

and the specific provisions of Administrative Order 2020-63(B)(2), would not 

adequately protect Silliman’s health, or the health of other individuals in the 

courtroom. Moreover, as noted by the trial court, Subsection 2 of Administrative

Order 2020-63(B) left the decision of whether in-person attendance was required to 

the discretion of the trial judge. Thus, we hold that it was within the discretion of 

the trial court to deny the Commonwealth the opportunity to present Silliman’s 

 

5 KRS 455.150 provides: 

When a material witness for the Commonwealth in a felony 

prosecution pending in a court of this state is confined under 

judgment of conviction in any federal penal institution, the 

Commonwealth’s attorney may enter into an agreement with the 

appropriate federal authorities for conveyance of the witness at the 

expense of this state to the Circuit Court in which the trial is 

pending, and after trial, for return to the federal penitentiary. The 

Commonwealth’s attorney shall move the Circuit Court for an 

order for the attendance of the witness and shall state the situation 

of the prisoner, the date set for trial of the case, the importance of 

his testimony to the Commonwealth, and the agreement of the 

federal authorities to produce the prisoner in court. The Circuit 

Court shall designate the officer to transport and guard the prisoner 

and such person shall be reimbursed from the State Treasury for 

his expenses in the amount and manner provided in KRS 

64.070(1); provided, however, that if a United States marshal or 

other federal official is designated by the court to transport and 

guard the prisoner such marshal or officer shall be reimbursed at 

the rate authorized by federal law or regulations. The Circuit 

Court shall enter an order of allowance of expenses for the officer 

upon conclusion of the trial. 
-10-

testimony via a two-way videoconferencing platform. 

We find no error in the trial court’s electing not to apply the minority 

approach of Gigante, supra. Even assuming, arguendo, that the trial court had 

applied the Gigante approach, the evidence provided by the Commonwealth would 

not have been sufficient to satisfy the “exceptional circumstances” test. 

Like the cases applying Craig’s “necessity” standard, 

cases applying the “exceptional circumstances” test have 

required some specific showing of medical conditions or 

risks faced by particular witnesses to justify the taking of 

testimony using videoconferencing technology. See 

Gigante, 166 F.3d at 81 (citing “the medical evidence of 

[the witness’s] poor health,” and “the joint exigencies of 

[the witness]’s secret location [due to participation in 

witness protection program] and Gigante’s own ill health 

and inability to travel”); United States v. Benson, 79 Fed. 

Appx. 813, 820-21 (6th Cir. 2003) (85-year-old witness 

who was “too ill to travel” from California to Cleveland 

due to “extensive health problems” and recent “major 

stomach surgery” which left her “underweight and 

fatigued”); United States v. Akhavan, No. 20-CR-188 

(JSR), ––– F.Supp.3d ––––, ––––, 2021 WL 797806, at 

*9 (S.D.N.Y. Mar. 1, 2021) (citing witness’ need for 

cross-country travel, as well as “his age and 

comorbidities,” to find “severe risks of severe illness or 

death” from COVID-19); United States v. Davis, No. 19-

101-LPS, 2020 WL 6196741, at *4 (D. Del. Oct. 22, 

2020) (relying on “a combination of [multiple witnesses’] 

distance from Delaware and his or her particularized risk 

factors”); [United States v.] Donziger, [No. 18-CR-561 

(LAP),] 2020 WL 5152162, at *3 [(S.D.N.Y. Aug. 31, 

2020)] (finding “exceptional circumstances” due to 

witness’ age, documented health conditions which placed 

him at heightened risk from COVID-19, and need for 

cross-country travel and lengthy quarantine).
-11-

C.A.R.A. v. Jackson Cty. Juvenile Office, No. WD 83967, 2021 WL 2793539, at *8 

(Mo. App. Jul. 6, 2021). As noted above, the Commonwealth did not present any 

evidence that Silliman was particularly susceptible to the risks of COVID-19, aside 

from the nature of his incarceration. The Commonwealth points to the general 

risks of potentially exposing multiple people to COVID-19 associated with 

transferring a witness from custody to testify in an in-person setting. However, as 

alluded to by the trial court in its order denying the Commonwealth’s motion,

general concerns about the threat of COVID-19 do not justify a denial of Gardner’s 

confrontation clause rights, especially in light of the precautionary measures in 

place to limit the spread of the virus. 

For the foregoing reasons, we affirm the Oldham Circuit Court’s order 

denying the Commonwealth’s motion to present a witness via two-way 

videoconferencing platforms.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Daniel Cameron 

Attorney General of Kentucky

Christopher Henry

Assistant Attorney General

Frankfort, Kentucky

BRIEF FOR APPELLEE:

Erin Hoffman Yang

Frankfort, Kentucky

.