City of Missoula v. Duane

City of Missoula v. Duane, 2015 MT 232 (Aug. 11, 2015) (Cotter, J.; McGrath, C.J. concurring) (5-0, aff’d)

Issue: (1) Whether allowing Dr. Sjolin to testify against Duane via Skype offended Duane’s rights under the Confrontation Clause; and (2) whether the district court erred in concluding M.R. Evid. 611(e) does not apply to criminal cases.

Short Answer: (1) No; and (2) yes, but it was a harmless error.


Facts: Duane and two others were charged with misdemeanor cruelty to animals after police responded to a report of a dead puppy, found filthy conditions and no water, and a necropsy revealed the puppy died of blunt force trauma.

Before trial, the city requested that Dr. Sjolin, the veterinarian who performed the necropsy, be allowed to testify via Skype, or that her supervisor be allowed to testify to Sjolin’s report, as Sjolin had moved to California. Duane objected, and the municipal court heard argument. It held that Sjolin had to testify, not her supervisor, and that she could do so either in person or via Skype, after concluding Skype testimony would not violate Duane’s constitutional right to confrontation. 

Procedural Posture & Holding: The municipal court held a jury trial, and Sjolin testified via Skype. The jury returned a guilty verdict, and Duane was sentenced. Duane appealed to the district court, which affirmed and stayed the sentence pending appeal. Duane appeals, and the Supreme Court affirms.

Reasoning: (1) Both the U.S. and Montana Constitutions guarantee an accused the right to confront witnesses against him. This Court held 20 years ago that allowing a witness to testify via telephone was, under the facts of that case and M.R. Evid. 611(e), reversible error. Bonamarte. The district court herein determined that Duane’s confrontation rights were not violated by allowing Sjolin to testify via Skype, and further held that Rule 611(e) applies in civil cases, not criminal.

The record shows that the Skype connection was made without difficulty, the court administered the oath and confirmed Sjolin was alone in the room, that she could see and hear the court, and that the jury could see and hear her. Counsel for the city and for Duane conducted direct and cross-examination without complication or technical difficulty.

The municipal court did not abuse its discretion in allowing Sjolin to testify via Skype, and the district court did not err in upholding that decision. While the physical presence of a witness is preferred, the city made a compelling showing that travel expenses would impose a significant burden on Sjolin and a prohibitive expense on the city. All of the hallmarks of confrontation were met, and allowing Skype testimony under these circumstances was not error.

(2) The Montana Rules of Evidence apply to criminal actions as well as civil, and the district court erred in holding otherwise. However, the error was harmless as the Skype testimony of Dr. Sjolin satisfied Rule 611(e).

Chief Justice McGrath’s Concurrence: Chief Justice McGrath would hold that the face-to-face requirement of the Montana Constitution and the “only in the presence of” requirement of Rule 611(e) are fully satisfied by the use of real-time, face-to-face communication devices and services.