E.A.C., A CHILD v. STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

E.A.C., a Child,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D20-2079

[June 30, 2021]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County; Kathleen J. Kroll, Judge; L.T. Case No. 50-2020-CJ-

000147-XXXX-MB.

Carey Haughwout, Public Defender, and Erika Follmer, Assistant

Public Defender, West Palm Beach, for appellant.

Ashley Moody, Attorney General, Tallahassee, and Rachael Kaiman,

Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

The delicate balancing act between due process and public health is at

the forefront of this appeal. A juvenile (“E.A.C.”) appeals a finding of guilt

and disposition on an attempted robbery charge. He argues the trial court

erred in failing to conduct a Maryland v. Craig 1 analysis before allowing

witnesses to testify remotely at his non-jury trial. He also argues error in

the trial court’s: (1) limiting cross-examination of the victim; (2) permitting

the victim to speculate in his testimony; and (3) denying the defense

motion for judgment of dismissal. We disagree and affirm.

Prior to the start of the pandemic, the State filed a petition for

delinquency alleging E.A.C. attempted to commit robbery.

The Administrative Orders

1 497 U.S. 836 (1990).

In March 2020, the pandemic caused global shutdowns of government

and business. In the same month, our supreme court began issuing

administrative orders to address judicial proceedings due to the pandemic.

In Amendment 5 to Florida Administrative Order AOSC20-23 (April 6,

2020), the supreme court ordered that “[a]ll rules of procedure, court

orders, and opinions applicable to court proceedings that limit or prohibit

the use of communication equipment for the remote conduct of

proceedings shall remain suspended.” In re Comprehensive COVID-19

Emergency Measures for the Florida State Courts, Fla. Admin. Order

AOSC20-23, Amend. 5 (July 2, 2020),

https://www.floridasupremecourt.org/content/download/639134/file/A

OSC20-23-Amendment-5.pdf (emphasis added).

The amendment further directed that “[n]on-jury trials in . . . juvenile

delinquency cases shall be conducted remotely if ordered by the chief

judge or the presiding judge or, if not, shall be conducted in person.” Id. 2

On June 30, 2020, the Chief Judge of the Fifteenth Judicial Circuit issued

an administrative order directing that non-essential proceedings such as

hearings in juvenile delinquency cases “will be held remotely and may not

proceed in-person until further order of the Court.” In re Mitigating

Measures in Response to COVID-19, Fla. 15th Cir. Ct. Admin. Order

12.510-06/2020.12*, https://www.palmbeachbar.org/wp-

content/uploads/2020/06/SKM_C450i20063015100.pdf (emphasis

added).

Pre-Trial Decisions

Prior to trial, E.A.C. filed an “Objection to Witnesses Appearing by Zoom

or Other Remote Means,” in which he relied on his constitutional right to

due process and confront witnesses. At the hearing on his objection,

defense counsel advised the court that the alleged victim and four of the

listed witnesses were minors. Counsel explained that he had difficulty

controlling the environment when minors testified on screen and that it

was more difficult “to impart the seriousness of what’s going on when it is

being handled remotely.”

He also shared his concern about the “shared screen feature” and his

ability to impeach the witnesses. He explained that he was not sure “if the

fact finder would be able to see the reaction of the person being impeached

2 On July 17, 2020, we denied a petition for writ of prohibition where another

juvenile sought to prevent her delinquency trial from moving forward in Zoom

format. Order, L.A. v. State, No. 4D20-1566 (Fla. 4th DCA Jul. 17, 2020). We

cited the provisions of the administrative order. Id.

2

if the screen is shared.” He then provided an anecdote of a child, who

asked “when do we see the judge,” after the child had just concluded her

remote detention hearing.

The trial court responded that techniques had been developed to

address defense counsel’s concerns. The court stated: “I think

everybody’s just worried at how long [the shutdown] is going to take and

they don’t want to delay these things unless absolutely necessary,” and “I

will address every concern you’ve raised at the time it becomes an issue.”

E.A.C. also moved for special instructions to be read to witnesses

appearing remotely. 3 The trial court agreed to read the first four

instructions but declined to read the fifth and sixth.

3 The requested instructions were:

1. A basic rule is that a witness’s testimony is to be based on their

own personal knowledge and recollection. Do you understand that

you are not to look at any other materials or talk to anyone else in

person or otherwise while testifying?

2. I want to stress that this rule means you must not use electronic

devices or cell phones during testimony other than for the purposes

of accessing the court hearing.

3. You must not do any research or look up words, names, maps,

or anything else that may have anything to do with this case. This

includes reading newspapers, watching television or using a

computer, cell phone, the Internet, any electronic device, or any

other means at all, to get information related to this case or the

people and places involved in this case.

4. [F]o[r] the purpose of ensuring the integrity of your testimony, I

am going to ask the following questions:

a. Where are you calling in from?

b. Is there anyone else in the room with you today?

c. Do you agree that if anyone enters the room during your

testimony, that you are to inform the Court?

d. Do you agree that you are not to use any electronic devices

during your testimony other than to access this hearing?

5. You have also just taken an oath on this case to tell the truth,

which subjects you to perjury. Do you understand that if you make

a false statement, which you do not believe to be true, under oath

in an official proceeding in regard to any material matter, you

3

The Non-Jury Trial

The court conducted the non-jury trial on August 14, 2020 in the

middle of the pandemic. The juvenile appeared in the courtroom with the

attorneys and judge. The witnesses appeared via Zoom.

The trial court told each witness: (1) the proceeding was being held on

Zoom due to Covid-19 precautions; and (2) the proceeding was to be

treated as if the witness were in the courtroom, and all the rights and

responsibilities were the same. Each witness was “duly sworn,” and each

confirmed to the judge that he or she understood that: (a) their testimony

must be based on personal knowledge; (b) they would not look at materials

or talk to anyone else while testifying; and (c) they would not use any

electronic device or conduct any research during the testimony. Each

witness answered the questions defense counsel requested in his Motion

for Special Instructions.

In its opening statement, the State told the court that the victim was

known to carry vape pens, large sums of cash, and other valuables on his

person. He was wearing his Apple AirPods on the day of the incident.

E.A.C. and “a number of other students” entered a high school restroom,

cornered the victim, and repeatedly struck him while attempting to obtain

his possessions.

A teacher testified that he became aware of the disturbance in the

restroom, which was located about twenty feet from his classroom. As he

approached the restroom, he saw E.A.C. and others exiting the restroom.

Some of them were “standing about and filming.”

The court then asked the teacher if he could see everyone on the screen.

He responded that he just saw the prosecutor. He was instructed to switch

to gallery mode. He then confirmed he could see “everybody,” including

E.A.C., and identified his clothing, as well as the name of the person sitting

next to him.

commit a felony and can be incarcerated to up to five years in

prison?

6. And do you agree that if the State pursues charges, that you will

submit to the jurisdiction of the State of Florida and turn yourself

in to the authorities?

4

When the teacher entered the restroom, the victim was seated on the

floor up against a wall in a stall; he looked disheveled. The teacher

instructed him to stay there while he found someone. The teacher found

the assistant principal (“AP”) and told her what happened. The teacher

returned to the bathroom to check on the victim, but he was gone.

The victim testified he knew E.A.C. as a kid in his gym class. The victim

confirmed that he could see E.A.C. on his screen. Around 8:30 in the

morning, the victim was walking out of the bathroom when he saw E.A.C.

and three other guys. They started pushing him toward the back of the

bathroom.

When describing the incident, the victim explained, “they kept like

trying to hit me and kick me or whatever. And then I just put my hands

in my pockets. That way, they wouldn’t be able to grab anything.”

Specifically, E.A.C. “kept trying to reach into [the victim’s] pockets” and

“kept trying to strike [him] in the face.”

The State showed the victim a fifteen-second video of the incident over

Zoom. The victim identified himself as “the one on the ground” and E.A.C.

as wearing a black and white hoodie. The video showed E.A.C. hitting the

victim’s face. The victim told the boys that someone else had his stuff.

In the video, E.A.C. appeared to be the most aggressive. He succeeded

in getting into the victim’s pockets and tried to pull out his AirPods or the

case, but the victim pushed his hand away. Nothing was taken from the

victim, but he sustained some small scrapes and bruises.

The victim then found two school IDs near him, one belonged to E.A.C.

Immediately after the incident, the victim went to class. He was later called

to the principal’s office, and eventually to the AP’s office. He identified

those involved and was shown pictures to verify their identities. The victim

provided the school police with a written statement, but it did not include

E.A.C.’s name.

The State next called J.P., who confirmed he could see E.A.C. on his

screen and identified him by his clothing. 4 The State charged J.P. in the

incident. He entered a guilty plea and was placed on probation. As a

condition of probation, he agreed to testify against E.A.C.

4The trial court spent several minutes virtually assisting J.P. to set up gallery

mode on his Zoom.

5

J.P. testified that he, E.A.C., and two other boys planned to jump the

victim in the school bathroom. J.P. watched while another boy filmed the

incident. J.P. gave a written statement to police in which he denied any

physical contact with the victim. He did not see anyone try to take the

victim’s things. J.P. heard it was just going to be some “slap boxing” in

the bathroom, which is “a playful kinda fighting.”

The defense moved for a judgment of dismissal. Defense counsel

argued the petition alleged that E.A.C. completed a taking but failed to

take anything. He further argued that any intent to take something from

the victim was based on speculation. Because J.P.’s testimony did not

establish a plan, defense counsel argued the State failed to prove an

attempted robbery. The court denied the motion.

In closing, E.A.C. argued the State only proved a battery and the video

did not show E.A.C. reaching into the victim’s pockets. He further argued

the victim had good reason to lie, which was evidenced by his statement

that someone else had his property and by the victim leaving the bathroom

before the teacher returned. He called J.P.’s credibility into question based

on his agreement to testify.

The trial court found E.A.C. guilty as charged, withheld adjudication,

and placed him on probation until he turned nineteen. E.A.C. now

appeals.

The Analysis

“[M]ixed questions of law and fact that ultimately determine

constitutional rights should be reviewed by appellate courts using a two-

step approach, deferring to the trial court on questions of historical fact

but conducting a de novo review of the constitutional issue.” Davis v.

State, 142 So. 3d 867, 871 (Fla. 2014) (alteration in original) (quoting

Henry v. State, 134 So. 3d 938, 946 (Fla. 2014)).

On appeal, E.A.C. argues the trial court violated his due process and

confrontation rights by conducting his non-jury trial via Zoom. The State

responds that E.A.C.’s constitutional rights were protected when the trial

court complied with the administrative orders from our supreme court and

its circuit and insured the integrity of the non-jury trial through its

instructions to the witnesses. We agree with the State and affirm.

E.A.C. first argues he had a due process right to counsel, to confront

and cross-examine witnesses, and to be physically present at his trial. We

agree. See U.S. CONST. amend. VI (“In all criminal prosecutions, the

6

accused shall enjoy the right to . . . be confronted with the witnesses

against him; to have compulsory process for obtaining witnesses in his

favor, and to have the Assistance of Counsel for his defence.”). E.A.C. was

physically present at his trial alongside his counsel, the prosecutor, and

the trial judge. His attorney had the opportunity to cross-examine

witnesses, although due to the pandemic, those witnesses appeared by

Zoom.

E.A.C. next argues his right to confront witnesses was violated because

the witnesses appeared by Zoom. We disagree.

We start from the premise that Craig sets the standard and articulates

the analysis for determining the unique issue of when child victims of

sexual abuse may appear by closed circuit television. 497 U.S. at 850–60.

It did not address Zoom appearances in non-jury trials during a pandemic.

In addressing that unique issue, the Court wrote: “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.” Id. at 844 (emphasis added). Indeed, “the Confrontation Clause is

generally satisfied when the defense is given a full and fair opportunity to

probe and expose [testimonial] infirmities [such as forgetfulness,

confusion, or evasion] through cross-examination, thereby calling to the

attention of the factfinder the reasons for giving scant weight to the

witness’ testimony.” Delaware v. Fensterer, 474 U.S. 15, 22 (1985) (per

curiam). “[T]he word ‘confronted,’ as used in the Confrontation Clause,

cannot simply mean face-to-face confrontation, for the Clause would then,

contrary to our cases, prohibit the admission of any accusatory hearsay

statement made by an absent declarant—a declarant who is undoubtedly

as much a ‘witness against’ a defendant as one who actually testifies at

trial.” Craig, 497 U.S. at 849.

The Court then acknowledged that denial of physical, face-to-face

confrontation may occur when it “is necessary to further an important

public policy and only where the reliability of the testimony is otherwise

assured.” Id. at 850. The Court indicated that the critical inquiry “is

whether use of the procedure is necessary to further an important state

interest.” Id. at 852. The Court then indicated that if the trial court makes

a “case-specific finding of necessity,” the Confrontation Clause does not

prohibit the use of one-way closed-circuit television for child witness

testimony in a child abuse case. Id. at 860.

But significantly, nothing in Craig addressed how the standard should

be applied when not only the jurisdiction, but the world, is in the middle

7

of a pandemic. Indeed, none of the cases relied upon by the dissent were

written during a pandemic. And, but for the pandemic, the dissent might

be correct. The problem is this trial took place in a pandemic where all

the rules of the game changed.

We would almost be writing on a clean slate were it not for the

thoughtfully written opinion of the Third District in Clarington v. State, 314

So. 3d 495 (Fla. 3d DCA 2020). There, the defendant filed a petition for

writ of prohibition seeking “to prohibit the trial court from conducting a

remote probation violation hearing.” Id. at 497. The participants appeared

from separate locations. Id. at 498. Even the defendant was located apart

from counsel. Id. The Third District denied the petition, reasoning:

In light of the COVID-19 pandemic and the resulting public

health emergency, the Florida Supreme Court issued several

administrative orders (and amendments thereto) in an effort

to provide temporary guidelines, benchmarks and

requirements for the continuity of operations within the trial

and appellate courts. See e.g., AOSC20-23, AOSC20-32,

outlining distinct phases and requirements for court

operations and establishing benchmarks which must be

satisfied before a court may move into the next phase of court

operations.

Id. at 500 (footnote omitted).

The Third District held the trial court’s order directing the probation

violation hearing be conducted remotely “[did] not violate Clarington’s

rights to confrontation and due process.” Id. at 509; see also Vazquez Diaz

v. Commonwealth, 167 N.E.3d 822, 837, 838 (Mass. May 5, 2021) (holding

trial court erred in denying continuance of suppression hearing, but

concluding “a virtual evidentiary hearing on a motion to suppress is not a

per se violation of the defendant’s right to confrontation under art. 12 in

the midst of the COVID-19 pandemic” and “may be necessary to further

the important public policy of protecting the public health from COVID-

19”).

Clarington’s analysis is applicable here, even though it dealt with a

probation violation hearing.

The concept of due process is not rigid or static, but flexible

and dynamic.” As the United States Supreme Court observed

in Morrissey v. Brewer, 408 U.S. 471, 481 [] (1972), “due

process is flexible and calls for such procedural protections as

8

the particular situation demands.” See also Mitchell v. W.T.

Grant Co., 416 U.S. 600, 610 [] (1974) (noting: “The

requirements of due process of law ‘are not technical, nor is

any particular form of procedure necessary.’ Due process of

law guarantees ‘no particular form of procedure; it protects

substantial rights.’ ‘The very nature of due process negates

any concept of inflexible procedures universally applicable to

every imaginable situation.’”) (citations omitted); Caple v.

Tuttle’s Design-Build, Inc., 753 So. 2d 49, 51 (2000)

(recognizing: “It has long been established that flexibility is a

concept fundamental to a determination of the adequacy of a

statute’s due process protections. . . . Furthermore, rather

than articulating a laundry list of specific procedures required

to protect due process, the United States Supreme Court has

emphasized that the protection of due process rights requires

balancing the interests of the parties involved.”) (citations

omitted). Whether a proceeding comports with fundamental

principles of due process depends on, and is informed by, the

attendant circumstances and a balancing of the competing

interests at stake.

Clarington, 314 So. 3d at 501.

In applying these concepts to this non-jury delinquency proceeding, we

must acknowledge that while juveniles are provided many of the

protections afforded to adults in criminal proceedings, they are not

afforded the same panoply of rights. See P.W.G. v. State, 682 So. 2d 1203,

1207 (Fla. 1st DCA 1996). Perhaps most importantly, this juvenile

proceeding took place during a global pandemic which has spawned a

public health emergency throughout the world and at a time where the

infection and death toll in the area of the trial was at one of its highest. 5

The Florida Supreme Court’s administrative orders [were]

crafted in an effort to strike the proper balance between the

5 By late August, Florida’s infection rate had topped 600,000, including Palm

Beach County’s 40,570 infected. See Chris Persaud, Florida’s Coronavirus Cases

Top 600,000, THE PALM BEACH POST (Aug. 23, 2020, 1:32 PM),

http://www.palmbeachpost.com/story/news/coronavirus/2020/08/23/florida

rsquos-coronavirus-cases-top-600000/42282457/). At the time of trial, Florida

had seen approximately 10,717 coronavirus-related deaths and 37,038

hospitalizations. See Andrea Torres, Coronavirus: Florida Records 2,763 New

Cases, 183 More Deaths, Local10 (Aug. 26, 2020, 5:43 PM),

https://www.local10.com/news/local/2020/08/25/coronavirus-florida-

records-2673-new-cases-183-more-deaths/.

9

competing interests of ensuring the health and safety of all

those entering the courthouse; expeditiously and properly

adjudicating criminal cases consistent with our obligation as

a branch, especially those cases in which the accused remains

in custody; and preserving those fundamental due process

rights afforded to an accused.

Clarington, 314 So. 3d at 502.

“[E]ven in the context of a criminal trial, a defendant’s Sixth

Amendment right to physically confront a witness face-to-face is not

absolute.” Id. at 504. “Instead, it is subject to an analysis undertaken in

light of the circumstances presented, balancing the competing interests,

public policy or necessities of the case.” Id. at 504–05 (citing examples).

Here, E.A.C. submitted a written objection to the remote hearing; the

State filed a written response. At the pretrial conference, the State advised

that all witnesses would be appearing by Zoom. Defense counsel stated

his main concern was that the minor witnesses would not treat remote

proceedings as seriously and it was harder to control what went on with

them. Defense counsel was also concerned about parental interference

with testimony and the court’s ability to see a witness’s demeanor.

The trial court responded that it had learned “techniques” to address

those concerns and overruled the defense objections. The court pledged

to “address every concern you’ve raised at the time it becomes an issue.”

The trial court recognized that no one knew how long the restrictions

would last and people did not want to delay proceedings “unless absolutely

necessary.”

The trial court painstakingly took great care to read four of the six

instructions requested by the defense and advised the witnesses of the

seriousness of their testimony. The court insured the witnesses were on

“gallery” view. In short, the trial court provided the necessary protection

of E.A.C.’s due process and confrontation rights. See, e.g., In the Interest

of R.J.B., 482 P. 3d 519 (Colo. App. 2021) (holding Web-X hearing on

termination of parental rights did not violate the mother’s due process or

equal protection rights).

And significantly, E.A.C. did not cite to any issue related to the witness’

testimony and the remote proceedings during the non-jury trial. Rather,

the parade of concerns raised on appeal relate to potential problems in a

remote proceeding, not to any problems that occurred here.

10

We recognize the distinctions between the probation violation hearing

in Clarington and the juvenile non-jury trial here. But we hold the remote

non-jury trial did not violate E.A.C.’s due process or confrontation rights

under the pandemic circumstances that existed in August 2020. And,

unlike the defendant in Clarington, E.A.C. was able to be in the same room

as his counsel, the prosecutor, and the judge.

The Third District’s concluding remarks apply equally here.

We conclude that the proceeding proposed by the trial court

in this case appropriately considered these necessities and

competing interests, balancing the defendant’s constitutional

rights and the responsibility of the judicial system to hear,

adjudicate and dispose of criminal matters and conduct

criminal proceedings, through the application of temporary

procedures needed to ensure the health and safety of those

participating.

Clarington, 314 So. 3d at 509. The court system cannot be a legal ostrich

and stick its head in the sand to avoid the obvious—the COVID pandemic.

We affirm the remaining issues without further discussion.

Affirmed.

LEVINE, C.J., concurs specially with opinion.

CIKLIN, J., dissents with opinion.

LEVINE, C.J., specially concurring.

I agree that this case should be affirmed, but I write to explain the

limited circumstances where the specific necessity of waiving “face-to-face”

confrontation of witnesses by the defendant is satisfied by the procedure

used in this case during this trial held on August 14, 2020.

In August 2020 it was clear that we were in the throes of the pandemic.6

The vaccines that are presently widely and readily available were in Phase

3 trials and not available to the public.7 The Florida Supreme Court had

6 On August 14, 2020, there were 228 deaths reported in Florida and 1,143

deaths nationwide. https://covid.cdc.gov/covid-data-

tracker/#trends_dailytrendscases.

7 https://www.wsj.com/articles/modernas-coronavirus-vaccine-begins-final-

stage-testing-11595854440.

11

issued administrative orders allowing juvenile delinquency cases to be

“conducted remotely if ordered by the chief judge or the presiding judge .

. . .” Fla. Admin. Order No. AOSC20-23 Amendment 13 (July 2, 2020) (on

file with clerk, Fla. Sup. Ct.). At the time of the trial, the circuit court was

under “Phase 1” of the administrative order, and the Chief Judge of the

circuit court ordered that juvenile delinquency cases “will be held remotely

and may not proceed in-person until further order of the Court.” Fla.

Admin. Order No. 12.510-05/2020.11* (May 27, 2020) (on file with Clerk,

Fla. 15th Cir. Ct.). The Fifteenth Circuit did not even enter Phase 2 until

September 9, after the completion of this trial. 8

The seriousness of the situation was not in doubt. No one questions

the sincerity of the actions of all those in the judiciary who attempted to

safeguard the safety of all those who participate in the court system. To

have an “in person” trial in August 2020 could have, in theory, potentially

placed many more at risk at that time, including the witnesses who were

eventually allowed to testify remotely.

One of the key procedural safeguards within a trial is the right of the

accused to confront witnesses face-to-face. See Coy v. Iowa, 487 U.S.

1012, 1017-20 (1988) (noting that face-to-face confrontation is “essential

to a fair trial” and serves to “ensur[e] the integrity of the fact-finding

process”) (citations omitted).

In Maryland v. Craig, 497 U.S. 836 (1990), the United States Supreme

Court required that the trial court make a finding of necessity, on a case-

by-case basis, for the use of a one-way closed-circuit camera in lieu of a

face-to-face confrontation. Although the preferred procedure in the

present case would have been for the trial court to at least attempt to make

some type of a “case-specific finding” allowing for the questioning of

witnesses by Zoom 9, there was clearly sufficient necessity that existed in

August 2020 for the trial court to proceed with the procedure used.

Further, what specific finding could the trial court have made? Being in

the midst of a pandemic, all of the witnesses were in the same situation.

Additionally, the situation in that courtroom was the same situation in

every courtroom in the state. The pandemic existed, and there was no

vaccine available at the time. It seems futile to require a “case-specific

finding” in one courtroom that would mirror the situation throughout the

state, and potentially the country.

8https://www.15thcircuit.com/covid-updates.

9Zoom is a cloud-based communications application for virtual video

conferencing.

12

Significantly, where justified by the circumstances, courts have allowed

the remote confrontation of witnesses, even in cases with less severe

circumstances than a pandemic. See Harrell v. State, 709 So. 2d 1364

(Fla. 1998) (allowing foreign witnesses to testify remotely because they

were beyond the subpoena power of the court, one witness was in poor

health and could not travel, and they were essential to the case); Butler v.

State, 254 So. 3d 651 (Fla. 4th DCA 2018) (allowing foreign witness to

testify remotely based on the state’s interest in prosecuting the case, the

importance of the witness’s testimony, the fact that the witness could not

be compelled to testify, and uncertainty in her ability to obtain a return

visa); Rogers v. State, 40 So. 3d 888, 889 (Fla. 5th DCA 2010) (allowing

arresting officer to testify remotely from China where he resided because

his testimony was necessary to prosecute the case and “there was an

effective procedure in place to enforce a U.S. warrant for the crime of

perjury for a U.S. citizen residing in China”); Lima v. State, 732 So. 2d

1173 (Fla. 3d DCA 1999) (allowing out-of-state victim to testify remotely

where travel would cause discomfort and childcare issues); Clarington v.

State, 314 So. 3d 495, 501 (Fla. 3d DCA 2020) (permitting a probation

violation hearing to be conducted remotely “in light of the nature of a

probation violation hearing and the circumstances posed by the current

public health emergency”).

Still, it is also important to remember that there is no pandemic

exception to the Constitution. Although the pandemic persists, so does

the Constitution. Terkel v. Ctrs. for Disease Control & Prevention, No. 6:20-

cv-00564, 2021 WL 742877, at *10 (E.D. Tex. Feb. 25, 2021). We as a

country have faced other challenges with our Constitution intact and in

force, such as war, terrorism, and now, a pandemic. “The Constitution of

the United States is a law for rulers and people, equally in war and in

peace, and covers with the shield of its protection all classes of men, at all

times, and under all circumstances.” Ex parte Milligan, 71 U.S. 2, 120-21

(1866).

I also share the dissent’s fidelity to the Constitution, but the words of

Justice Robert Jackson have special resonance today as we consider

application of the Constitution in the midst of the pandemic. “The choice

is not between order and liberty. It is between liberty with order and

anarchy without either. There is danger that, if the Court does not temper

its doctrinaire logic with a little practical wisdom, it will convert the

constitutional Bill of Rights into a suicide pact.” Terminiello v. City of

Chicago, 337 U.S. 1, 37 (Jackson, J., dissenting). The trial court

conducted the trial by utilizing the type of “practical wisdom” required for

these extraordinary circumstances.

13

This opinion should not be construed as a license in the future to avoid

the strictures of witness confrontation as set forth in Maryland v. Craig.

There should be a clear correlation between the existence and severity of

the exigency and the latitude given to the trial court. The longer the

exigency lasts, however, the more demanding we should be in allowing

that accommodation to continue. The reason for this is clear. As Justice

Felix Frankfurter noted many years ago, “The history of liberty has largely

been the history of observance of procedural safeguards.” McNabb v.

United States, 318 U.S. 332, 347 (1943). As the exigency recedes, so

should any allowance of any emergency accommodation.

Therefore, based on the limited circumstances of this specific case, I

would affirm.

CIKLIN, J., dissenting.

The Constitution of the United States is a law for rulers and

people, equally in war and in peace, and covers with the shield

of its protection all classes of men, at all times, and under all

circumstances. No doctrine, involving more pernicious

consequences, was ever invented by the wit of man than that

any of its provisions can be suspended during any of the great

exigencies of government. Such a doctrine leads directly to

anarchy or despotism . . . .

Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120-21 (1866).

I dissent. The child’s constitutional right to confront witnesses was

violated when the trial court permitted witnesses to testify remotely

without first making the individualized findings required by Maryland v.

Craig, 497 U.S. 836 (1990). By permitting this to occur, the trial court

(and now the majority) have acquiesced to the abrogation of E.A.C.’s

fundamental constitutional rights.

I. Analysis

The Sixth Amendment of the United States Constitution affords

defendants in a criminal prosecution “the right . . . to be confronted with

the witnesses against him,” among other rights. Juveniles are not afforded

the same full panoply of due process rights as adult criminal defendants,

nor are their proceedings the same, In Interest of C.J.W., 377 So. 2d 22, 24

(Fla. 1979), but they still enjoy rights under the Confrontation Clause of

the Sixth Amendment, see, e.g., M.C. v. State, 516 So. 2d 1076, 1077 (Fla.

2d DCA 1987) (holding juvenile was deprived of right to confrontation and

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cross-examination when trial court conducted adjudicatory hearing in her

absence).

“The central concern of the Confrontation Clause is 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.” Craig, 497 U.S. at 845. “[T]he right guaranteed by the

Confrontation Clause includes not only a ‘personal examination,’ but also

‘(1) insures that the witness will give his statements under oath—thus

impressing him with the seriousness of the matter and guarding against

the lie by the possibility of a penalty for perjury; (2) forces the witness to

submit to cross-examination, the ‘greatest legal engine ever invented for

the discovery of truth’; [and] (3) permits the jury that is to decide the

defendant’s fate to observe the demeanor of the witness in making his

statement, thus aiding the jury in assessing his credibility.’” Id. at 845-

46 (second alteration in original) (internal citation omitted) (quoting Mattox

v. United States, 156 U.S. 237, 242 (1895); California v. Green, 399 U.S.

149, 158 (1970)).

Generally, “the Confrontation Clause guarantees the defendant a face-

to-face meeting with witnesses appearing before the trier of fact.” See Coy

v. Iowa, 487 U.S. 1012, 1016 (1988) (holding that sexual assault

defendant’s confrontation rights were violated when a screen was placed

between him and the two complaining witnesses at trial). As discussed in

Coy, a face-to-face encounter inspires a speaker’s veracity in an

unparalleled fashion:

The perception that confrontation is essential to fairness

has persisted over the centuries because there is much truth

to it. 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. He can now understand

what sort of human being that man is.” Z. Chafee, The

Blessings of Liberty 35 (1956), quoted in Jay v. Boyd, 351 U.S.

345, 375–376, 76 S.Ct. 919, 935–936, 100 L.Ed. 1242 (1956)

(Douglas, J., dissenting). It is always more difficult to tell a lie

about a person “to his face” than “behind his back.” In the

former context, even if the lie is told, it will often be told less

convincingly. The Confrontation Clause does not, of course,

compel the witness to fix his eyes upon the defendant; he may

studiously look elsewhere, but the trier of fact will draw its

own conclusions.

Coy, 487 U.S. at 1019.

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Even though “the Confrontation Clause reflects a preference for face-to-

face confrontation at trial,” such a confrontation is not indispensable.

Craig, 497 U.S. at 849-50 (emphasis in original) (citation omitted). In

Craig, the United States Supreme Court set forth the following test for

whether the absence of face-to-face confrontation is constitutionally

satisfactory: “[A] defendant’s right to confront accusatory witnesses may

be satisfied absent a physical, face-to-face confrontation at trial only where

denial of such confrontation is necessary to further an important public

policy and only where the reliability of the testimony is otherwise assured.”

Id. at 850 (emphasis added). Face-to-face confrontation “may be abridged

only where there is a case-specific finding of necessity.” Id. at 857-58

(emphasis added) (citations and quotation marks omitted) (approving

Maryland’s statutory procedure of using a one-way closed circuit television

to examine a child witness); see also Harrell v. State, 709 So. 2d 1364,

1369 (Fla. 1998) (citing Craig and explaining that “[i]n order to qualify as

an exception, the procedure must (1) be justified, on a case-specific finding,

based on important state interests, public policies, or necessities of the

case and (2) must satisfy the other three elements of confrontation—oath,

cross-examination, and observation of the witness’s demeanor” (emphasis

added)).

In United States v. Yates, 438 F.3d 1307 (11th Cir. 2006), the Eleventh

Circuit applied Craig and determined that witness testimony presented via

a live two-way video conference at a criminal trial violated the defendants’

right to confrontation. Id. at 1309. The witnesses were “essential . . . to

the government’s case-in-chief,” but were unwilling to travel to the United

States from Australia to testify. Id. at 1310. The trial court’s reasoning

for permitting the video testimony was that confrontation rights would not

be violated because the witnesses would see the defendants and vice versa,

the government asserted an important public policy of providing the fact-

finder with crucial evidence, and the government had an interest in

expeditiously and justly resolving the case. Id.

In reversing the trial court, the Eleventh Circuit explained:

[W]here a defendant’s right to confront a witness against him

will be affected, the determination of whether a particular case

requires a departure from usual procedures must be made, by

the trial court, on a case-by-case basis. Craig, 497 U.S. at

854, 110 S.Ct. at 3169. The court generally must: (1) hold

an evidentiary hearing and (2) find: (a) that the denial of

physical, face-to-face confrontation at trial is necessary to

further an important public policy and (b) that the reliability

of the testimony is otherwise assured. Id. at 850, 855, 110

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S.Ct. at 3166, 3169. The first part of this test requires that the

trial court find that it is essential to deny the defendant his right

to face-to-face physical confrontation in order to serve the

interest the government asserts. See, id. at 855, 110 S.Ct. at

3169 (stating that, in order to separate the witness and

defendant, the problem must be the physical presence of the

defendant during the witness’s testimony, not some other

problem that could be remedied by a less intrusive solution).

Id. at 1315 (emphasis added).

The Yates court held that “under the circumstances of this case (which

include the availability of a [Federal Rule of Criminal Procedure 15]

deposition), the prosecutor’s need for the video conference testimony to

make a case and to expeditiously resolve it are not the type of public

policies that are important enough to outweigh the Defendants’ rights to

confront their accusers face-to-face.” Id. at 1316. “[F]urtherance of the

important public policy [must] make it necessary to deny the defendant

his right to a physical face-to-face confrontation,” and the availability of

depositions, which the defendants could have attended, removed

necessity. Id. (emphasis in original). Mere expedition is also not a

sufficiently important public policy: “[T]here is no doubt that many

criminal cases could be more expeditiously resolved were it unnecessary

for witnesses to appear at trial.” Id.

Because it is United States Supreme Court precedent, this court is

duty-bound to apply Craig to the case at hand. Thus, the use of Zoom for

witness testimony at E.A.C.’s trial should be reviewed for (1) (a) a case-

specific determination of necessity (b) that furthers an important public

policy, and (2) assurance of the reliability of the testimony.

The trial court’s error lies in not performing a necessity analysis.

Undoubtedly, preventing the spread of the Covid-19 pandemic qualifies as

an important public policy, and preventing people from gathering in a

courtroom would generally appear to further that policy. But generalities

and assumptions are not a substitute for the required case-specific

determination of necessity. For example, the trial court did not seek to

determine the potential level of risk involved with each witness’s possible

exposure to Covid-19 through an in-person appearance. Nor did the trial

court evaluate the necessity of each witness’s proffered testimony with

respect to the overall effectiveness of prosecution of the case. Lastly, the

trial court did not explore alternatives to Zoom testimony, which would go

to the question of “necessity.” The trial court might have considered

alternatives such as a continuance until community spread of the virus

17

had decreased or requiring some or all of the witnesses to appear in person

and with masks or behind plexiglass barriers and other social distancing

infrastructure. 10 The record is silent as to this required analysis. The lack

of individualized, on-the-record considerations by the trial judge prevents

a meaningful review of whether these alternatives were viable. The

majority’s attempt to now fill in the gaps by citing to newspaper and local

Miami television station stories is risky.

II. The Majority Opinion

The majority relies on several reasons for its determination that the

child is no longer entitled to his rights under the Confrontation Clause,

including that Craig is distinguishable, that there were administrative

orders permitting remote proceedings in place at the time of the trial, that

“all the rules of the game changed” because the trial took place during the

pandemic, and that the trial court took great care to conduct the trial

fairly.

Respectfully, I assert that these reasons are inherently flawed and

cannot justify the abrogation of the United States Constitution.

First, the majority seems to propose that Craig’s requirement for a case-

specific finding of necessity need not be applied because Craig is

distinguishable: “We start from the premise that Craig sets the standard

and articulates the analysis for determining the unique issue of when child

victims of sexual abuse may appear by closed circuit television. 497 U.S.

at 850–60. It did not address Zoom appearances in non-jury trials during

a pandemic.” Majority op. at 7. Agreed, the facts of Craig are

distinguishable from those at hand insofar as they involve the use of one-

way closed circuit television for testimony given while the witnesses could

not see the defendant. But for purposes of our analysis, the differences

end there particularly because, Craig has been extended to two-way

remote testimony very similar to that enabled by Zoom in the instant case.

See Yates, 438 F.3d at 1309 (applying Craig and determining that witness

testimony presented via a live two-way video conference at a criminal trial

violated the defendants’ right to confrontation); Harrell, 709 So. 2d at 1369

10Numerous facts may be relevant to the required necessity determination in the

context of the ongoing coronavirus pandemic, and I do not purport to proclaim

that any or all of these specific facts are determinative. The knowledge and

science surrounding the spread of the virus continues to quickly evolve, and fact-

dependent judicial findings must evolve along with it so we know the specific

science on the ground that existed during E.A.C.’s case progression.

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(applying Craig to the testimony given by satellite video transmissions in

which defendant could see witnesses and witnesses could see defendant).

Also in Harrell, our state supreme court expressly declined to conclude

that such satellite remote proceedings are the equivalent of physical, face-

to-face confrontation. Id. at 1368. Accordingly, despite factual

distinctions, a connecting of the legal dots leads to the inescapable

conclusion that Craig’s mandate of “a case-specific finding of necessity”

applies to the case at hand.

The majority also points to the supreme court administrative orders in

place at the time of E.A.C.’s trial and the requirements therein for remote

proceedings. Majority op. at 2. But not to be missed is that these orders

contain express exceptions to remote proceedings where necessary to

honor individual constitutional rights. Amendment 5 to Administrative

Order AOSC20-23 included a “GUIDING PRINCIPLE” that “[t]he presiding

judge in all cases must consider the constitutional rights of crime victims

and criminal defendants and the public’s constitutional right of access to

the courts.” Id. at § I.A. The Amendment further directed:

(2) Non-jury trials in:

a. Criminal cases shall be conducted remotely if the parties

agree to such conduct or, if not, shall be conducted in

person.

b. … juvenile delinquency cases shall be conducted remotely

if ordered by the chief judge or the presiding judge or, if

not, shall be conducted in person.

(3) All other trial court proceedings shall be conducted

remotely unless a judge determines that one of the following

exceptions applies, in which case the proceeding shall be

conducted in person:

a. Remote conduct of the proceeding is inconsistent with the

United States or Florida Constitution, a statute, or a rule of

court that has not been suspended by administrative order

….

Id. at § III.E. (emphasis added).

Likewise, Fifteenth Circuit Administrative Order 12.510-06/2020.12*

recognized that remote proceedings must abide the federal and Florida

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constitutions:

The fact that one of the above outlined proceedings cannot be

held in-person is not a valid reason for continuing the

proceeding until in-person proceedings are permitted unless

the presiding judge determines that remote conduct of the

proceeding:

a. Is inconsistent with the United States or Florida

Constitution . . . .

Id. at § III.1 (emphasis in original).

Because of these plainly obvious exceptions included in the

administrative orders to preserve constitutional rights, the majority cannot

reasonably point to either the supreme court order or the circuit court

order to justify the trial court’s failure to apply Craig.

The majority also troublingly points to the pandemic as a reason for

denying the child’s constitutional rights:

But significantly, nothing in Craig addressed how the

standard should be applied when not only the jurisdiction,

but the world, is in the middle of a pandemic. Indeed, none

of the cases relied upon by the dissent were written during a

pandemic. And, but for the pandemic, the dissent might be

correct. The problem is this trial took place in a pandemic

where all the rules of the game changed.

Majority op. at 7.

Somewhere, at least one of our founding fathers is rolling over in his

grave. The “rules of the game” are found in the Constitution:

The Constitution of the United States is a law for rulers and

people, equally in war and in peace, and covers with the shield

of its protection all classes of men, at all times, and under all

circumstances. No doctrine, involving more pernicious

consequences, was ever invented by the wit of man than that

any of its provisions can be suspended during any of the great

exigencies of government. Such a doctrine leads directly to

anarchy or despotism, but the theory of necessity on which it

is based is false; for the government, within the Constitution,

has all the powers granted to it, which are necessary to

20

preserve its existence; as has been happily proved by the

result of the great effort to throw off its just authority.

Ex parte Milligan, 71 U.S. at 120-21. Thus, even in times of great exigency,

the Constitution remains solidly embedded as the supreme law of the land.

Any conclusion to the contrary is—indeed, must be—rendered as being

unacceptable. As tempting and convenient as it might be, cutting

constitutional corners without utilizing enunciated safeguards must be

considered a non-starter.

Clearly, the pandemic was and is a time of intense difficulty, trouble,

and danger and was so alarming and abrupt that it has required many

major modifications within the operation of the court system. I do not

bury my head in the sand to that fact. But this is not the first (nor will it

be the last) emergency to test the durability and lastingness of the

Constitution. Indeed, that is precisely why Craig allows for exceptions to

face-to-face confrontation. Public health concerns may well have been an

appropriate reason to conduct this trial remotely. But, in the end—

respectfully—there is no reason why the trial court could not have made

the required case-specific finding of necessity. Such a finding, made

following a remote hearing, would not have adversely impacted anyone’s

health. The trial court may have ultimately determined that remote

proceedings were justified and necessary in E.A.C.’s case, but it erred by

proceeding without first making a case-specific determination. 11

The majority suggests that the trial court was permitted to satisfy

constitutional concerns by taking “great care” in reading instructions and

ensuring the witnesses were in the Zoom electronic “gallery” view. I have

no doubt that the trial court was doing its best under very difficult

circumstances to endeavor to follow administrative orders and keep

participants safe while protecting E.A.C.’s rights. However, there is simply

no precedent for substituting the United States Supreme Court mandate

of a case-specific finding of necessity with “techniques” developed by the

trial court. The majority’s analysis begs the question of which other

11 E.A.C. thoroughly preserved this issue by, among other things, filing an

extensive written pre-trial motion that cited directly to Craig. Indeed, that section

of E.A.C.’s motion discussing this issue was captioned: “III. The Court must

make an individualized determination for each witness before allowing an

exception to face-to-face confrontation.” In other words, the trial court was fully

apprised of E.A.C.’s objection prior to trial. Had the child not made what was

relatively close to a textbook example of a proper objection, we would be

summarily affirming the trial court for lack of preservation. This renders the

majority’s affirmance all the more problematic because Craig was and is directly

on point and E.A.C.’s attorneys did their jobs.

21

constitutional rights might we abrogate so long as the trial court acts with

“great care.”

Finally, the majority points to R.J.B., 482 P. 3d 519, and Clarington,

314 So. 3d 495, for support. It cites R.J.B. for its holding that a Web-X

hearing in a termination of parental rights case did not violate the mother’s

due process or equal protection rights. Majority op. at 10. Respectfully,

R.J.B. is clearly distinguishable because it does not involve any type of

criminal prosecution, and thus the Sixth Amendment was not impacted in

any way and was not at issue. See, e.g., In the Interest of A.H., 950 N.W.2d

27, 35 n.9 (Iowa Ct. App. 2020) (affirming termination of parental rights

where hearing was conducted by telephone and noting “there is no Sixth

Amendment right to confront witnesses outside the context of a criminal

proceeding”).

Clarington is likewise distinguishable. There, the Third District

addressed a petition for writ of prohibition and concluded that conducting

a probation violation hearing remotely in the midst of the Covid-19

emergency did not violate the defendant’s due process or confrontation

rights. Clarington, 314 So. 3d at 509.

While Clarington is thorough and well-reasoned, it does not stand in

support of affirmance in the instant case. There, because the defendant

had already been to trial, he had already been afforded the full panoply of

due process, which, as is well-established, not equally available to

probationers. Id. at 501-02. In fact, the Clarington court carefully

“emphasize[d] the narrow scope of [its] decision,” pointing out that the

opinion denies a petition for a writ of prohibition in the context of a

probation violation hearing. Id. at 509. Here, E.A.C. was facing an initial

adjudication of delinquency at trial, an obvious critical phase of

proceedings which, as noted, afforded E.A.C. the full panoply of due

process checks. The facts in Clarington simply do not comport with those

at bar. We are discussing apples and oranges.

III. Conclusion

In sum, the trial court may have properly determined that remote

proceedings were necessary in E.A.C.’s case, but it erred by doing so

without first making a case-specific determination.

While I appreciate the position of the majority every bit as much as the

trial court in terms of dealing with Covid-19 head on, certain constitutional

principles are immutable. If they are to be diminished because of

exigencies of government, the case law on this must be followed to the

22

letter. The majority sets a dangerous precedent by failing to uphold the

dictates of the Confrontation Clause as interpreted by the Supreme Court

in Craig, even in the face of a generational global pandemic. Up to this

point, there is simply no precedent for exclusion of in-person testimony

without the required individualized considerations. “[T]echnological

changes in the courtroom cannot come at the expense of the basic

individual rights and freedoms secured by our constitutions.” Harrell, 709

So. 2d at 1372. If this child’s constitutional rights are not guaranteed by

employing the relatively simple and clearly enunciated case-specific

determination requirement imposed by the United States Supreme Court,

then no one’s are.

I would reverse and remand for the trial court to conduct the required

Craig analysis before permitting the witnesses to testify remotely. And I

nevertheless commend the trial judge for her commitment to justice under

onerous circumstances.

* * *

Not final until disposition of timely filed motion for rehearing.

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