By: Chloe Slusher
State v. Smith, 636 S.W.3d 576, 578 (2022).
The COVID-19 pandemic has touched almost every aspect of society.1 The pandemic has also changed the way people go to court.2 Judges, lawyers, clients, and court reporters all sit in front of screens from their homes, offices, or jail cells and perform hearings, trials, and other proceedings.3 However, for the most part, the criminal justice system has come to a screeching halt.4 While many hearings and civil trials have been transferred online, criminal trials have not.5
Our Constitution protects the rights of defendants in criminal trials in several amendments.6 Among these protections is the Sixth Amendment, which protects a defendant’s right to be “confronted with the witnesses against him.”7 This usually means that the defendant has a right to have the witnesses in his trial appear before him as they testify and that the defendant through their counsel can cross-examine witnesses.8
There is no dispute that a criminal trial with every member of the trial present including the judge, defendant, attorneys, and witnesses best serves the interests of fairness and justice.9 However, what should a trial judge do when a witness is sick or at higher risk of contracting a severe case of COVID-19 and cannot testify in court? Can the Confrontation Clause and the defendant’s rights be satisfied in ways other than having the witness appear in trial in front of the defendant?
To best satisfy the Confrontation Clause and bring it into the modern era while protecting defendant’s rights, the Court should allow the use of two-way video testimony during criminal trials if the defendant is unavailable and can be cross-examined over video. The Supreme Court should expand the definition of constitutional unavailability to include those who are sick, at high risk of severe COVID-19, and child victims who would suffer negative psychological effects from testifying in court.
II. FACTS AND HOLDING
The State charged Rodney Smith in connection with allegations of sexual assault by I.S., who was the sixteen-year-old daughter of Smith’s girlfriend.10 I.S. was subjected to an examination at a hospital, where an emergency room physician took swabs for a sexual assault kit.11 At the hospital, Detective Julie Johnson identified Smith as a suspect.12 I.S. later retracted her allegations, but Detective Johnson did not close the case due to pending lab results.13 The lab results identified male DNA, which Erik Hall, the Biology Technical Leader at the St. Louis Metropolitan Crime Laboratory, identified as a match to Smith’s DNA.14 Anne Kwiatkowski, the DNA section Supervisor of the St. Louis Metropolitan Crime Laboratory reviewed, analyzed, and approved the report.15 Detective Johnson sought criminal charges against him.16
At trial, the State presented in-person testimony from I.S., I.S’s mother, the emergency room physician, Detective Johnson, and Kwiatkowski.17 The State also introduced the DNA laboratory report produced by Erik Hall on a limited basis.18
The State did not initially call Hall to testify because he was on paternity leave.19 The State attempted to present evidence of Smith’s DNA through Kwiatkowski, but Smith objected.20 The circuit court allowed Hall’s live video testimony over Smith’s objection.21
The jury found Smith guilty of two counts of statutory rape and not guilty of one count of statutory rape and three counts of statutory sodomy.22 The circuit court sentenced him to two concurrent terms of seven years in prison.23 Smith filed a motion for a new trial, which was overruled.24 Smith appealed arguing that Hall’s two-way video testimony violated his right to confrontation and due process under the United States Constitution and the Missouri Constitution.25 The court of appeals issued an opinion but transferred the case to the Supreme Court of Missouri.26 The Supreme Court of Missouri concluded that this case fell under the rule announced in Crawford and because there was no finding of unavailability of the witness, two-way video testimony did not satisfy the Confrontation Clause.27
III. LEGAL BACKGROUND
The Sixth Amendment’s Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.”28 Normally, confrontation includes the defendant’s right to have the witnesses in his trial brought face to face with the defendant when they testify.29 The Clause goes beyond just guaranteeing witness presence in the courtroom but also requires the opportunity for meaningful cross-examination.30 Cross-examination is considered essential to the Confrontation Clause, and the Court has treated the defendant’s right to be brought face to face with the witness as secondary to the right to cross-examination.31 The Clause values face-to-face confrontation and cross-examination because they are thought to ensure the integrity of the fact-finding process by allowing the fact-finder to observe the witness and draw its own conclusions.32 The Supreme Court has spent years grappling with when the Confrontation Clause applies, and if it does apply, when it is satisfied.33
A. Historical Origins and Supreme Court Doctrine
The most famous denial of confrontation is the trial of Sir Walter Raleigh for treason in 1603.34 Raleigh’s accomplice implicated Raleigh in a pretrial examination before the Privy Council in a letter, which was read to the jury at trial.35 Raleigh argued that the accomplice had lied to save himself and demanded the judges call the accomplice to testify in court and be cross-examined.36 The judges refused, the jury convicted Raleigh, and he was sentenced to death.37
The backlash from the trial of Raleigh led to a series of statutory and judicial reforms, which formally developed the right to confrontation.38 By the time of our nation’s founding, many of the colonies included the right to confrontation in their constitutions, and the First Congress included it in the Bill of Rights as the Sixth Amendment.39
It is hotly debated what the clause meant to the Framers and what it should mean now.40 Some think that the purpose of the amendment is to prevent ex parte testimony to be used against the accused.41 Followers of this view see the Confrontation Clause as a limit on who the government can call as their witness.42 This view finds the touchstone of confrontation to be a procedural tool that does not allow the prosecution to use evidence from a witness that does not confront the defendant regardless of anything else.43 Another view is that the original purpose of the clause was to prevent unreliable hearsay testimony that was not tested by cross-examination and could not be considered reliable.44 Thus, exceptions to the right to confrontation were acceptable if the testimony was reliable despite the absence of cross-examination.45 Others believe that the clause was intended by the Framer’s to be a total ban on the use of unsworn hearsay in criminal trials.46
The Supreme Court’s Confrontation Clause jurisprudence reflects the ebb and flow of these views in the justices.47 In Mattox v. United States, the Court endorsed the idea that the Confrontation Clause was meant to ensure the reliability of evidence holding that the confrontation right is fulfilled if the defendant previously had an opportunity to cross-examine the witness.48 In dicta, the Court suggested that the right to have witnesses appear when testifying is not absolute, and the right can sometimes “give way to consideration of public policy and the necessities of the case.”49
In 1965, the Court held that the right to confrontation is fundamental and therefore applied to the States by the Fourteenth Amendment.50 Then, in 1968, the Court explored the issue of constitutional unavailability in Barber v. Page.51 At the Barber trial, the prosecutor offered preliminary hearing testimony by a witness and claimed that the witness was unavailable because he was incarcerated in another state.52 The Court held that a witness is not unavailable unless the prosecution has made a “good faith effort” to get the witness to trial.53 The Court observed that the opportunity for cross-examination of a witness at a preliminary hearing may sometimes satisfy the right to confrontation where the witness is shown to be actually unavailable.54
In 1970, two cases foreshadowed an era of increased attention to the Confrontation Clause as a limit on the use of hearsay against the accused.55 In California v. Green, the Court rejected challenges to the use of statements by a witness who claimed to forget the events at issue during trial but had incriminated the defendant in a preliminary hearing.56 Green stands for the proposition that the Confrontation Clause is satisfied if the declarant was subject to prior cross-examination, such as in a preliminary hearing, or deferred cross-examination where the declarant is a witness at the current trial.57 In Dutton v. Evans, the Court rejected a confrontation challenge to a statement that was never cross-examined because the declarant never testified.58 The Court held that the Confrontation Clause is satisfied if a statement possesses the “indicia of reliability” similar to traditional hearsay exceptions.59
In 1972, the Court expanded on when witness unavailability creates an exception to the Confrontation Clause.60 The prosecution’s witness testified at the first trial but by the time of the retrial had moved out of the country and was unavailable to testify.61 The Court held that because the witness was sufficiently unavailable and there was an opportunity to cross-examine the witness in the first trial, the statements bore sufficient indicia of reliability, and the defendant’s right to confrontation had not been violated.62
B. Ohio v. Roberts: A Confrontation Clause Framework
In 1980 in Ohio v. Roberts, the Court attempted to create a framework for the effects of the Confrontation Clause on the use of hearsay against the defendant.63 According to the Court, the clause works in two ways to restrict what hearsay is admissible.64 First, the clause establishes a “rule of necessity.”65 Under this rule, even where prior cross-examination has occurred, the prosecution must either produce the witness at trial or demonstrate the unavailability of the declarant.66 Second, once a witness is determined to be unavailable, only hearsay with indicia of reliability may be admitted.67 Reliability can be shown where the evidence falls within one of the firmly rooted hearsay exceptions.68 In other situations, the evidence must be excluded absent a showing of “particularized guarantees of trustworthiness.”69 In creating this framework, the Supreme Court firmly adopted the reliability view of the Confrontation Clause.70
Soon after introducing the Roberts framework, the Court cut back on the application of the unavailability requirement.71 In White v. Illinois, the Court declined to require a finding of unavailability for a witness whose statements fit the hearsay exceptions for excited utterances and statements made to get a medical diagnosis.72 The exclusive focus of the Confrontation Clause analysis became unreliability.73 Reliability remained equated with firmly rooted hearsay exceptions.74 Eventually, most hearsay exceptions were recognized as being firmly rooted and, therefore, were allowed in over Confrontation Clause objections.75
C. Paradigm Shift: Crawford v. Washington
In Crawford v. Washington, the Court overturned the Roberts framework.76 The Court, led by Justice Scalia, changed its view of the Confrontation Clause and saw the clause as a limit on government power.77 The Supreme Court held that the admission of a tape-recorded statement given to police violated the defendant’s right to confrontation.78 Justice Scalia found that “admitting statements deemed reliable by a judge is at odds with the right to confrontation.”79 According to Crawford, the Confrontation Clause is to ensure reliability of evidence through a procedural guarantee, not a substantive one.80 According to Justice Scalia, the clause does not specify that evidence must be reliable.81 Instead, it dictates that reliability be assessed in a specific way: cross-examination.82 The Roberts test was wrong because it allowed a jury to hear evidence based on a judicial determination of reliability which replaced the method of cross-examination ordered by the Sixth Amendment.83
After Crawford, the clause only applies to testimonial hearsay.84 The Court, however, did not provide an exact definition for what counts as testimony.85 The Court suggested that testimony may include anything the declarant would reasonably expect to be used later at trial.86 According to Justice Scalia, this included testimony at hearings, affidavits, depositions, and statements taken by police officers during interrogations.87 However, the Court did not clarify whether this is the exclusive definition of testimonial hearsay.88
Additionally, under Crawford, testimonial hearsay statements made by an unavailable witness are inadmissible unless the defendant had a prior opportunity to cross-examine the witness.89 Justice Scalia clearly stated that the Sixth Amendment does not create any open-ended exceptions to confrontation for statements deemed reliable.90
D. Child Sex Abuse Exception
Before Crawford, in another line of cases, the Court has grappled with whether child victims of sexual assault may testify through video.91 In Maryland v. Craig, the Court approved of trial courts allowing a child sexual assault victim to testify from another room while a video of the witness was transmitted to the courtroom through a closed-circuit.92 The Court held that the state’s interest in “physical and psychological well-being” of child victims is important enough to outweigh the right to confrontation.93 However, the Court specified that the trial court must make a “case-specific” finding that this procedure is “necessary to protect the welfare of the child.”94 The Court did not preclude the idea that other public policies may be sufficiently important to create an exception to the right to Confrontation.95
After Crawford, it is unclear where the Craig exception to confrontation stands.96 Crawford did not overrule Craig, and many courts still allow the Craig exception for the testimony of child witnesses.97 Some courts have applied the Crawford standard to the use of two-way video, holding that even child witnesses must testify in person unless they are unavailable and there was a prior opportunity for cross-examination.98 Several circuits have taken their own approaches to the allowance of video testimony.99
E. Missouri Court Interpretations
The Supreme Court of Missouri decided two Confrontation Clause cases alongside State v. Smith.100 In C.A.R.A. v. Jackson County Juvenile Office, a juvenile objected to a virtual adjudication hearing arguing that it violated their right to confrontation.101 At the hearing, the trial court allowed several witnesses, including the child sexual abuse victim, to testify via two-way video due to the pandemic.102 The Court held that the hearing violated the defendant’s right to confrontation.103 According to Judge Fischer, the use of two-way video was not permissible under Craig or Crawford.104 Therefore, the use of two way video could not be sustained under Craig.105
Applying Crawford, the court held that because the adult witnesses were not determined to be unavailable, the use of two-way video for their testimony violated the Confrontation Clause.106 The court left open the possibility that the COVID-19 pandemic could satisfy an “important public policy” of Craig to allow an exception to the Confrontation Clause.107 However, Judge Fischer stated that the circuit court would have to make a witness specific determination that it was necessary for that particular witness to testify via two-way video due to an increased risk related to COVID-19.108
In J.A.T. v. Jackson County Juvenile Office, the circuit court required a juvenile defendant to attend an adjudication hearing remotely while the witnesses and other parties were present in the courtroom.109 The Court held that this was a violation of the defendant’s right to confrontation noting that generalized concerns about the pandemic may not override an individual’s constitutional rights.110
IV. INSTANT DECISION
In State v. Smith, the Court applied Crawford in holding that because the circuit court made no findings that the witness was unavailable, the use of two-way video for the testimony of a crime lab employee violated the Confrontation Clause.111 In making its determination, the court analyzed the alternative methods courts have taken in interpreting the Confrontation Clause and when the right to confrontation can be overcome.112
The court considered Craig, which allows for an exception when it would further public policy and the testimony would remain reliable.113 When considering the Craig and Crawford tests, the court noted that Crawford put the precedential value of Craig in question because Craig was based on the “indicia of reliability” framework that Crawford overruled.114 Instead, Crawford was based on the idea that the Confrontation Clause is a procedural guarantee that requires the reliability of evidence be tested by cross-examination.115 Additionally, Crawford holds that the right to confrontation is absolute whereas Craig allows for exceptions.116 Finally, Judge Fischer noted that Craig was worried about the possibility that if taken to its extreme the Confrontation Clause would nullify every hearsay exception.117 In contrast, Crawford declined to “rely on the law of evidence” in deciding the reach of the Confrontation Clause.118
However, the court stated that because Crawford did not overrule Craig, Missouri courts should continue to apply Craig to facts similar to Craig’s.119 Therefore, a child witness may testify against the defendant via video where there is statutory authorization, and the trial court determines that the particular child needs special protection.120 Here, the witness was not a child or a victim.121 In addition, the circuit court made no finding that the witness was unavailable.122 Therefore, the court held that under Crawford, the video testimony violated the defendant’s right to confrontation.123
In State v. Smith, the court followed conflicting precedent to the best of the court’s ability.124 However, the state courts and lower courts cannot satisfactorily resolve Confrontation Clause disputes due to clashes in Supreme Court precedent. Therefore, the Supreme Court must take up a Confrontation Clause case to clarify ambiguities in the doctrine and to bring it into the COVID-19 era. To best serve the interest of justice and protect the rights of the defendants, the Court should hold under Crawford that the use of two-way video testimony during criminal trials is acceptable if the witness is unavailable and the defendant had the opportunity to cross-examine the witness either previously or over the video. The Court should expand the definition of Constitutional unavailability to include a finding that a witness who is currently ill, at high risk of severe COVID-19 symptoms, or who would experience negative psychological impacts from testifying before the defendant is an unavailable witness. This standard of unavailability will resolve precedential conflicts and ensure that a defendant’s right to confrontation is satisfied by giving him or her the opportunity to cross-examine the witness.
A. Views of the Confrontation Clause
There is a preference for face-to-face confrontation in the adversarial system.125 However, there is also a preference for a safe trial, and defendants’ have the right to a speedy trial. COVID-19 made it a danger for many to go into public and slowed our trial system.126 Not only has the right to confrontation been burdened, but the halt of criminal trials has hindered the defendant’s right to speedy trial.127
Whether unavailability should be expanded and two-way video testimony be allowed depends on a person’s view of the purpose and meaning of the Confrontation Clause.128 If the clause’s purpose is to ensure actual, physical confrontation—the view associated with Justice Scalia and Crawford—the expansion of unavailability is not an attractive option.129
Physical confrontation protects reliability because it is harder to lie when a person is physically on the stand and facing the defendant, judge, and jury.130 From a textualist point of view, it is often argued that the Framers would not have used the phrase “confront” if the right only meant that the testimony has to be reliable and cross-examined.131 Taken to its extreme, the right to physical confrontation would overturn Craig, disallow child victims to testify over video, and would not permit the use of video during a pandemic.132
However, the Confrontation Clause cannot be meant to prohibit all out-of-court statements where the declarant does not physically testify in court because that would prohibit the admission of any accusatory hearsay.133 The Court has widely recognized that confrontation is not meant to ban the use of all hearsay in criminal trials.134 Additionally, many of the benefits of physical confrontation such as actual fairness, the impression of fairness, and reliability can be attained through other modes of testimony such as two-way live video.
An alternative view values reliability of statements as the most significant underlying purpose of confrontation.135 Those who subscribe to this view see actual, physical confrontation as less important as long as the statements against the defendant can be deemed reliable.136 This view can best be seen in Roberts.137 Here, as long as the defendant’s statement bears sufficient indicia of reliability, the statements of a witness who is at high COVID-19 risk or ill can come in even without the use of two-way video.138
Another understanding of the Confrontation Clause centers on the right of the defendant to cross-examine the witness.139 This interpretation remains true to the Founder’s fear of ex parte proceedings where judges took witness statements behind closed doors untested by the defendant.140 Throughout history, the Court has consistently held that cross-examination is the most important purpose of the Confrontation Clause.141 Taking this view is not in conflict with the current framework in Crawford as it holds the opportunity for cross-examination to be essential for witness testimony to get in.142
B. Expanding Constitutional Unavailability
If cross-examination is the starting point for the analysis, under Crawford, the unavailability requirement is more flexible as long as the defendant has an opportunity for adequate cross-examination either before or during the trial over video. Expanding unavailability to cover child witnesses who would suffer trauma from testifying, individuals who are currently ill, those who have long term sickness, or those who are at high risk of severe COVID-19 would help protect the confrontation right of defendants while protecting the interests of a speedy trial and justice. This would also resolve inconsistencies between Craig and Crawford and a split in the circuits.143
One objection to expanding the definition of unavailability may be that it can be hard to draw a line between availability and unavailability.144 However, the prosecution would bear the burden of showing both a good faith effort to get the witness into trial in person and that the witness truly is sufficiently unavailable to testify over video.145 This is consistent with Barber v. Page, which put the burden on the prosecutor to make a good faith effort to get the witness to trial.146
The right to confrontation is an important safeguard to the rights of defendants, and it should not easily be dispensed with. But, in light of improving technology and the risk of COVID-19, when an individual is truly unavailable because they are ill, at high risk of severe illness, or a child witness that would suffer severe trauma from testifying, the witness should be able to testify over video and be subject to cross-examination.
 Brandon Marc Draper, Revenge of the Sixth: The Constitutional Reckoning of Pandemic Justice, 105 Marq. L. Rev. 205 (2021); Ben Lowenthal, The Confrontation Clause and the Covid-19 Pandemic, Haw. B.J., Sept. 2020, at 20.
 Draper, supra note 1, at ; COVID-19’S Next Victim? The Rights of the Accused, The Champion, May 2020, at 22; Lowenthal, supra note 1, at 20.
 Draper, supra note 1; COVID-19’s Next Victim? The Rights of the Accused, supra note 2; Lowenthal, supra note 1 at 20.
 Draper, supra note 1; COVID-19’s Next Victim? The Rights of the Accused, supra note 2; Lowenthal, supra note 1 at 20.
 Draper, supra note 1; Lowenthal, supra note 1 at 20.
 See U.S. Const. amend. IV; id. amend. V; id. amend. VI.
 Id. amend. VI.
 Christopher B. Mueller and Laird C. Kirkpatrick, Evidence Black Letter Outlines 215 (West Academic Publishing, 4th ed. 2008); Richard D. Friedman, Confrontation: The Search for Basic Principles, 86 Geo. L.J. 1011, 1011–12 (1998).
 See Christopher B. Mueller, Laird C. Kirkpatrick, Liesa L. Richter, Evidence Under the Rules 384–385 (Aspen Casebook Series 9th Edition 2019); Roger C. Park, Purpose As A Guide to the Interpretation of the Confrontation Clause, 71 Brook. L. Rev. 297, 298–301 (2005).
 State v. Smith, 636 S.W.3d 576, 578 (2022).
 The report was deemed admissible subject to limitations that the State could use the report, but the report could not be offered to the jury to view. Id. Portions of the report were allowed to support later testimony. Id.
 Id. at 579.
 Smith was also sentenced to suspended execution of sentence and placed on probation for five years. Id.
 The Supreme Court of Missouri had jurisdiction pursuant to article V, § 10 of the Missouri Constitution. Id.
 The error was not harmless beyond a reasonable doubt, so the circuit court’s judgment was reversed, and the case was remanded. Id. at 588.
 U.S. Const. amend. VI.
 Mueller & Kirkpatrick, supra note 8; Friedman, supra note 8, at 1011.
 Lee v. Illinois, 476 U.S. 530, 540 (1986); Chambers v. Mississippi, 410 U.S. 284, 294 (1973); W. Jeremy Counseller & Shannon Rickett, The Confrontation Clause After Crawford v. Washington: Smaller Mouth, Bigger Teeth, 57 Baylor L. Rev. 1, 4–5 (2005); Friedman, supra note 8, at 1011.
 Friedman, supra note 8, at 1011.
 Coy v. Iowa, 487 U.S. 1012, 1018 (1988); Friedman, supra note 8, at 1011.
 Joëlle Anne Moreno, Finding Nino: Justice Scalia’s Confrontation Clause Legacy from Its (Glorious) Beginning to (Bitter) End, 44 Akron L. Rev. 1211, 1212 (2011); David Alan Sklansky, Anti-Inquisitorialism, 122 Harv. L. Rev. 1634, 1637 (2009).
 Sklansky, supra note 33; Crawford v. Washington, 541 U.S. 36, 43 (2004); Charles F. Baird, The Confrontation Clause: Why Crawford v. Washington Does Nothing More Than Maintain the Status Quo, 47 S. Tex. L. Rev. 305, 306 (2005); Mueller, Kirkpatrick & Richter, supra note 9, at 384.
Sklansky, supra note 33; Crawford, 541 U.S. at 43; Stephanos Bibas, Originalism and Formalism in Criminal Procedure: The Triumph of Justice Scalia, the Unlikely Friend of Criminal Defendants?, 94 Geo. L.J. 183 (2005).
Sklansky, supra note 33; Crawford, 541 U.S. at 43; Bibas, supra note 35.
 Sklansky, supra note 33; Crawford, 541 U.S. at 43; Mueller, Kirkpatrick, & Richter, supra note 9, at 384; Bibas, supra note 35.
 Jeffrey Bellin, The Incredible Shrinking Confrontation Clause, 92 B.U. L. Rev. 1865, 1885 (2012); Crawford, 541 U.S. at 43 (2004); Thomas Y. Davies, What Did the Framers Know, and When Did They Know It? Fictional Originalism in Crawford v. Washington, 71 Brook. L. Rev. 105, 125 (2005).
 Sklansky, supra note 33, at 1644; Davies, supra note 39, at 124; Bellin, supra note 39, at 1889; Davies, supra note 39, at 105; Miguel A. Méndez, Crawford v. Washington: A Critique, 57 Stan. L. Rev. 569, 598 (2004).
 Sklansky, supra note 33; Counseller & Rickett, supra note 30, at 9.
 Counseller & Rickett, supra note 30, at 9; John Henry Wigmore, Evidence in Trials at Common Law §1395, 150–51 (Chadbourn rev. ed. 1974); California v. Green, 399 U.S. 149, 190 (Harlan J. dissenting) (1970).
 Counseller & Rickett, supra note 30, at 9; Wigmore, supra note 44, at 150–51; Green, 399 U.S. at 190 (Harlan J. dissenting).
 Thomas Y. Davies, Not “The Framers’ Design”: How the Framing-Era Ban Against Hearsay Evidence Refutes the Crawford-Davis “Testimonial” Formulation of the Scope of the Original Confrontation Clause, 15 J.L. & Pol’y 349, 353 (2007).
 Baird, supra note 34, at 309; see e.g., Crawford v. Washington, 541 U.S. 36, (2004); Ohio v. Roberts, 448 U.S. 56 (1980).
 Mattox v. United States, 156 U.S. 237, 244 (1895).
 Id. at 243.
 Pointer v. Texas, 380 U.S. 400, 403 (1965).
 Barber v. Page, 390 U.S. 719, 722 (1968).
 Id. The Court found the prosecution had not made a good faith effort to get the witness to trial. Id.
 Mueller, Kirkpatrick, & Richter, supra note 9, at 384.
 California v. Green, 399 U.S. 149, 152 (1970).
 Dutton v. Evans, 400 U.S. 74, 77 (1970). The statement came in under a state co-conspirator rule of evidence which allowed utterances made by a conspirator who was already imprisoned. Id.
 Dutton, 400 U.S. at 77.
 Mancusi v. Stubbs, 408 U.S. 204, 213 (1972).
 Mueller, Kirkpatrick, & Richter, supra note 9, at 385.
 Ohio v. Roberts, 448 U.S. 56, 78 (1980).
 Id. at 80.
 Id.; Counseller & Rickett, supra note 30, at 9.
 White v. Illinois, 502 U.S. 346 (1992); United States v. Inadi, 475 U.S. 387 (1986).
 White, 502 U.S. at 346.
 Jarot Hunt Scarbrough, The Swinging Pendulum of Confrontation Clause Jurisprudence: Was Michigan v. Bryant A Response to the Inequitable Outcomes in Crawford, Davis, and Giles?, 36 Am. J. Trial Advoc. 153, 159 (2012).
 John R. Grimm, A Wavering Bright Line: How Crawford v. Washington Denies Defendants a Consistent Confrontation Right, 48 Am. Crim. L. Rev. 185, 185 (2011); Hearsay exceptions that were not recognized as being firmly rooted included FRE 807, FRE 804(b)(3) and state created hearsay exceptions for child testimony. Id.
 Crawford v. Washington, 541 U.S. 36 (2004).
 Moreno, supra note 33, at 1211; Grimm, supra note 75, at 185; Counseller & Rickett, supra note 30, at 1.
 Crawford v. Washington, 541 U.S. 36 (2004).
 Id. This limiting of the Confrontation Clause separates the analysis from hearsay. Id. Off-hand remarks that are not testimonial and would be considered hearsay may be admitted pursuant to a hearsay exception and are not the kind of statement to which Confrontation Clause applies. Id.
 Crawford, 541 U.S. at 36.
 Mueller, Kirkpatrick, & Richter, supra note 9, at 495.
 Maryland v. Craig, 497 U.S. 836 (1990).
 Id. The finding must include more than nervousness and excitement and must rise to the level of more severe emotional distress. Id.
 See Craig, 497 U.S. at 386.
 Mueller, Kirkpatrick, & Richter, supra note 9, at 420.
 See State v. Smith, 636 S.W.3d 576 (Mo. 2022).
 See United States v. Gigante, 166 F.3d 75 (2d Cir. 1999); United States v. Yates, 438 F.3d 1307 (11th Cir. 2006). In Gigante, the Second Circuit permitted the use of two-way live video for live testimony because the witness was fatally ill and in the Federal Witness Protection Program. Gigante, 166 F.3d at 75. The court distinguished Gigante from Craig because Craig only considered one-way video. Id. Applying Craig, the Eleventh Circuit did not permit two witnesses in Australia to testify via two-way video because the public policy of presenting the fact finder with crucial evidence was not enough to outweigh the defendant’s rights to confrontation. Yates, 438 F.3d at 1307. Two dissenters argued that the proper standard for governing the use of video testimony should have been Crawford and not Craig. Id.
 See C.A.R.A. v. Jackson Cty. Juv. Off., 2022 WL 106134 (Mo. 2022); J.A.T. v. Jackson Cty. Juv. Off., No. SC 99251, 2022 WL 108456 (Mo. Jan. 11, 2022).
 C.A.R.A. v. Jackson Cty. Juv. Off., 637 S.W.3d 50, 50 (Mo. 2022).
 C.A.R.A., 2022 WL 10613 at *1.
 J.A.T. v. Jackson Cty. Juv. Off., 637 S.W.3d 1 (Mo. 2022).
 State v. Smith, 636 S.W.3d 576, 578 (2022).
 Id. (citing Crawford v. Washington, 541 U.S. 36 (2004)).
 Smith, 636 S.W.3d at 578. (citing Crawford, 541 U.S. at 36).
 Smith, 636 S.W.3d at 578.
 Id. at 587.
 Id. at 580.
 COVID-19’S Next Victim? The Rights of the Accused, supra note 2, at 22.
 Sklansky, supra note 33; Marc Chase McAllister, Two-Way Video Trial Testimony and the Confrontation Clause: Fashioning A Better Craig Test in Light of Crawford, 34 Fla. St. U. L. Rev. 835 (2007); COVID-19’S Next Victim? The Rights of the Accused, supra note 2, at 22.
 Crawford v. Washington, 541 U.S. 36 (2004); Moreno, supra note 33.
 Mark Spottswood, Truth, Lies, and the Confrontation Clause, 89 Univ. Colo. L. Rev. 565, 587 (2018).
 Crawford, 541 U.S. at 36; McAllister, supra note 128, at 835.
 McAllister, supra note 128, at 835.
 Maryland v. Craig, 497 U.S. 836, 847–48 (1990); Friedman, supra note 8, at 1011; Crawford, 541 U.S. at 50.
 Sklansky, supra note 33; Bellin, supra note 39, at 1865.
 Bellin, supra note 39, at 1865; Ohio v. Roberts, 448 U.S. 56, 72–73 (1990).
 Roberts, 448 U.S. at 73.
 See id.
 McAllister, supra note 128, at 835; Sklansky, supra note 33.
 Sklansky, supra note 33; Crawford v. Washington, 541 U.S. 36, 43 (2004); Baird, supra note 34, at 306; Mueller, Kirkpatrick, & Richter, supra note 9, at 384.
Friedman, supra note 8, at 1011.
 See Crawford, 541 U.S. at 50.
 See United States v. Gigante, 166 F.3d 75 (2d Cir. 1999); United States v. Yates, 438 F.3d 1307 (11th Cir. 2006); Maryland v. Craig, 497 U.S. 836 (1990).; Crawford, 541 U.S. at 36.
 See Richard D. Friedman, Remote Testimony, 35 U. Mich. J.L. Reform 695, 698–99 (2002).
 See id. at n. 41.
 Barber v. Page, 390 U.S. 719, 722 (1968). For those that would attempt to fabricate reasons why they are at higher risk of COVID-19, there are a number of statutes that can be used to prosecute them for obstruction of justice and false statements. See 18 U.S.C. §1503; 18 U.S.C. §1001.