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

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No. M2019-01913-CCA-R9-CD

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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.

07/20/2020
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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.
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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], 
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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.
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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.
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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.
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“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 
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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 crossexamination 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)). 
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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 
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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 inperson 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:
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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 wideranging implications their testimony may have on the life of another. Foregoing inperson 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 
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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