Right to Confront Witnesses in Person During Civil Commitment Hearings

Facts of the Case

On October 1, 2019, N.A. reported to her psychiatrist increased symptoms of depression with suicidal ideation and auditory hallucinations. N.A. was given the diagnosis of unspecified schizophrenia and, upon recommendation from her psychiatrist, sought treatment at St. Peter’s Hospital in Helena, Montana. N.A. was voluntarily admitted to Hays Morris House in Butte, Montana, from October 1 through October 4. During her discharge on October 4, 2019, N.A. reported to staff her intent to die by suicide by cutting her wrists if she departed the facility. That same day, the state filed a petition for N.A.’s involuntary commitment because of her imminent risk of self-harm based on her suicidal statements.

On October 11, 2019, the district court held an evidentiary hearing, where the state informed N.A. of its intent to call four witnesses. Three of the witnesses testified in person. Two were family members of N.A. who provided their recent observations of N.A. and the opinion that she was unable to care for herself. A fire chief also offered in-person testimony about a false fire report that N.A. had called in about eight months prior. The fourth witness was Ashley Post, a licensed clinical social worker with the Western Montana Mental Health Center. Ms. Post was to testify by Vision Net, which is a two-way electronic audio-video communication system, citing a need to be near her office in case of an emergency. N.A. objected to the remote testimony on the grounds of Montana’s Confrontation Clause, which provides an individual the right to confront witnesses.

The district court overruled the defense’s objection, relying on its interpretation of Montana’s Confrontation Clause and the State’s presentation of Montana Code Annotated (MCA) §53-21-140 (1) and 53-21-140(3) (2009). Ms. Post proceeded to provide testimony on the circumstances leading up to N.A.’s involuntary commitment and described N.A.’s depressed mood, spotty adherence to medication treatment, thoughts of suicide, and delusional thoughts, including that her brothers had tried to make her overdose and that one of her brothers had held her captive for a year. Ms. Post concluded that she believed that N.A. had a mental disorder, was a danger to herself, and would likely deteriorate without further treatment. Ms. Post, moreover, provided the opinion that, because N.A. inconsistently took her psychiatric medications, she would need to be placed in a level of care that would allow for involuntary medications to be given for her stabilization.

Based on the testimonies presented, the district court found that N.A. was given a diagnosis of a mental disorder, was substantially unable to provide for her own needs, and was an imminent threat of injury to herself and others, and therefore required commitment. Accordingly, the district court ordered N.A. to be involuntarily placed at Montana State Hospital in Warm Springs for a period of up to ninety days. N.A. appealed.

Ruling and Reasoning

The Supreme Court of Montana concluded that the district court had committed a reversible error and the judgment was reversed.

Justice Laurie McKinnon delivered the opinion of the court with Justices Shea, Baker, and Gustafson concurring. The civil commitment order was reviewed to determine whether the findings of fact were clearly erroneous, and its conclusions of law were correct. A finding of fact would clearly be erroneous if it were not supported by substantial credible evidence, the court misapprehended the effect of the evidence, or the court otherwise erred. The state did not contest that the district court erred in allowing Ms. Post’s video testimony, but instead argued that this error was harmless and did not warrant reversal.

In reviewing the governing statute (MCA §53-21-140 et seq.), the Supreme Court of Montana highlighted the unambiguous declaration that two-way electronic audio-video communications “may not be used” in an initial civil commitment hearing if the patient objects. The court concluded that allowing Ms. Post’s remote testimony did not constitute “harmless error,” given that she was the state’s primary witness, the only mental health professional who testified, and the person whose testimony the district court primarily relied upon to commit N.A. Additionally, the court was unpersuaded by the state’s argument that N.A. should have requested a continuance to allow time for Ms. Post to testify in person, countering that N.A. was under no obligation to request a continuance, especially given that the hearing was being held on the last possible day of the statutorily-mandated timeline for civil commitment proceedings. Strict adherence to the involuntary commitment statute was applied because of the liberties at stake, and the Supreme Court of Montana found that the statute was clear and unambiguous regarding the legislative intent.

Dissent

Justices Sandefur, McGrath, and Rice voiced the dissenting opinion. They suggested that the majority followed the statute too simplistically; the statute was implemented before modern technological advancements; and transportation over long-distances while being handcuffed would be inhumane and costly.

Discussion

The increased use of videoconferencing has brought about its own unique challenges. The Montana Code regarding the use of two-way-electronic audio-video communication allowed this method of testimony, but only if all parties were in agreement. This case illustrates that when a statute’s legislative intent is clear, unambiguous, and unmistakable, then that statute is not open to alternate interpretation.

Over the past few decades, both the fields of medicine and the law have debated how extensively videoconferencing technology should be used. Both fields have recognized potential benefits of videoconferencing, including reductions in costs of transportation, convenience, and avoidance of delays. The use of videoconferencing in psychiatry has not been without its critics. Psychiatrists have been skeptical regarding the inability to perform physical examinations and detect nonverbal cues using videoconferencing, and clinicians and patients alike have been skeptical about the effect of telemedicine on rapport and the loss of direct patient-doctor contact (Cowan KE, McKean AJ, Gentry MT, et al. Barriers to use of telepsychiatry: Clinicians as gatekeepers. Mayo Clin Proc. 2019; 94(12):2510-2523). The use of teleconferencing in medicine also brings up questions of equality for patients who do not have access to the required technology, as well as concerns about security.

Courts have also considered the question of the use of videoconferencing over the past decades, particularly in relation to the Confrontation Clause of the Sixth Amendment that guarantees defendants the right to confront witnesses against them in criminal proceedings. The Confrontation Clause has traditionally been interpreted as guaranteeing that these confrontations must occur in-person. For example, in Coy v. Iowa, 487 U.S. 1012 (1988), Justice Scalia delivered the Supreme Court decision that the use of a one-way screen designed to protect a child witness from having to see the defendant in a sex crime case was a violation of the constitutional right to “face-to-face” confrontation. The use of videoconferencing in the courtroom has generally been considered inferior to in-person testimony; criticisms include that remote testimony may impede the ability to assess witness credibility, and also may affect the way the witness is perceived (Izzo NC: How litigators are confronting COVID in the courtroom [Internet]; August 31, 2020. Available from: https://www.americanbar.org/groups/litigation/committees/trial-practice/articles/2020/covid-19-video-testimony-courtrooms/. Accessed April 1, 2022).

The onset of the COVID-19 pandemic placed increasing pressure on both the medical and legal fields to utilize videoconferencing technology. Physicians began to use videoconferencing so that they could provide care to their patients without increasing the risk of spreading disease. These platforms became an everyday necessity and now are part of daily routine for many in health care. Courtrooms have been under similar pressure to use videoconferencing to limit COVID transmission and protect the public and people in the courtroom, but as this case illustrates, courts also must balance the right of defendants to confront witnesses, and states may have laws that clearly delimit the use of teleconferencing. States with such explicit instruction in their statutes may find it difficult to quickly adjust practice to meet the needs of society in changing times, such as during a pandemic.