State v. Songer: Montana Supreme Court Demands Strict Proof of Witness “Unavailability” Before Video Testimony Is Admitted

Introduction

In State v. Jory Jerae Songer, 2025 MT 176, the Supreme Court of Montana revisited three familiar—but often misunderstood—criminal-procedure flashpoints: (1) the constitutional requirement of witness confrontation, (2) the level of suspicion needed to justify an investigatory stop, and (3) the standard for changing court-appointed counsel. Although the Court ultimately affirmed the trial court on issues (2) and (3), it reversed the convictions for attempted deliberate homicide and assault with a weapon because the District Court allowed the prosecution to play a prerecorded deposition without first establishing, at the time of trial, that the witness was truly unavailable.

By insisting on a contemporaneous showing of unavailability, the Court sets a clear precedent that prosecutors in Montana must meet the strict requirements of both the Sixth Amendment and Article II, § 24 of the Montana Constitution before depriving a defendant of face-to-face confrontation. This commentary unpacks the opinion, its reasoning, and its ramifications.

Summary of the Judgment

The Court addressed three appellate issues:

1. Video testimony without proof of unavailability – Reversible error; new trial ordered on the attempted homicide and assault counts.
2. Motion to suppress backpack evidence – Denied; District Court’s finding of particularized suspicion affirmed.
3. Motion to substitute counsel – Denied; no abuse of discretion in refusing to appoint new counsel where defendant’s complaints centered on strategy, not an irremediable breakdown.

Because the homicide convictions were vacated, the Court remanded all related sentencing—including on the unrelated drug case and the revocation matter—for new proceedings free of the taint of the invalid convictions.

Analysis

A. Precedents Cited

• State v. Norquay, 2011 MT 34 – Defined when deposition testimony may substitute for in-court testimony.
• State v. Hart, 2009 MT 268 – Applied the “good-faith effort” test to secure attendance of a witness.
• State v. Johnson, 2019 MT 34 – Restated the three grounds (conflict of interest, irreconcilable conflict, or breakdown in communication) justifying substitution of counsel.
• State v. Reeves, 2019 MT 151; State v. Loberg, 2024 MT 188 – Discussed particularized suspicion and prohibited “mere hunches.”
• Bauer v. State, 1999 MT 185 – Held that sentences based on later-vacated convictions require resentencing.
• Terry v. Ohio, 392 U.S. 1 (1968) – Canonical U.S. Supreme Court precedent on investigative stops.

B. Court’s Legal Reasoning

1. Confrontation Clause Violation
   The prosecution obtained a preservation deposition from witness Patience Davis because she might receive threats and enter rehab. At trial, without further showing, the State simply played the video. The Court held that:
   • Rule 804, M.R.Evid., demands a showing that the witness “is unable to be present” at the time of trial.
   • The prosecution bears the burden of proving it made a “good-faith effort” to secure in-person testimony (Norquay, Hart).
   • Absent that showing, admission of video testimony violates the defendant’s confrontation right, requiring automatic reversal because the error cannot be deemed harmless where the witness was central to the case (State concession).
2. Particularized Suspicion for the Stop
   The officer’s knowledge of a recently stolen silver BMW tied to drug activity, combined with:
   • a matching vehicle in a high-crime hotel lot,
   • occupants “hunched over” apparently using narcotics, and
   • visual recognition of a passenger with an active warrant,
   supplied “objective data” sufficient to justify a Terry stop. The Court distinguished generic, lawful behavior (which would fail under Loberg) from specific, articulable facts pointing to criminality.
3. Substitution of Counsel
   Although counsel reported a “total breakdown,” the Court accepted the District Court’s finding that the rupture was self-created—rooted in Songer’s dissatisfaction with strategy and his unilateral refusal to meet, not on an actual conflict or inability to mount a defense. Under the deferential abuse-of-discretion standard, the trial court’s decision stood.
4. Resentencing Mandate
   Because invalid convictions materially informed the sentencing calculus (the judge explicitly referenced them), Bauer controls: all related sentences must be revisited on remand.

C. Impact of the Judgment

• Tighter gatekeeping for video depositions – Prosecutors must come to trial prepared to demonstrate exact reasons a witness cannot appear that day. “Potential rehab” or generalized fear will be insufficient without contemporaneous evidence.
• Strategic implications for defense counsel – Defense lawyers should demand a formal unavailability hearing when depositions are offered, preserving objections and forcing a factual record.
• Law-enforcement guidance on investigatory stops – The decision illustrates how pre-existing information (stolen car bulletin) plus real-time observations convert to lawful particularized suspicion, providing a template for officers to articulate their stops in reports and testimony.
• Sentencing practice – Trial courts must segregate counts conceptually; if some counts may later fall, the court should articulate independent reasons for each sentence or be ready for resentencing.

Complex Concepts Simplified

Confrontation Clause

The constitutional right allowing criminal defendants to face and cross-examine the witnesses who testify against them. Remote testimony is permitted only when the prosecution proves the witness cannot appear and has made genuine efforts to secure attendance.

Particularized Suspicion

A standard lower than probable cause. Officers must point to specific, objective facts leading them to suspect wrongdoing; it cannot be a vague “hunch.”

Preservation Deposition

Video or transcript of a witness’s testimony recorded before trial to “preserve” it. It may be used only if the witness is later proven unavailable.

Gallagher Hearing

A Montana procedure (from State v. Gallagher, 2001 MT 39) where the court explores whether a defendant is entitled to new appointed counsel.

Conclusion

State v. Songer crystallizes an important evidentiary safeguard in Montana: the prosecution must prove unavailability at the moment of trial before a jury may hear prerecorded testimony. The ruling also reaffirms established doctrine on reasonable suspicion and counsel substitution, but its lasting legacy will be its unequivocal demand for strict compliance with the Confrontation Clause. Future litigants should expect Montana trial courts to hold explicit on-the-record hearings—and prosecutors to marshal tangible evidence—whenever a witness is not physically present. By enforcing this procedural rigor, the Court fortifies the integrity of criminal trials and protects one of the justice system’s most fundamental rights: the defendant’s ability to look a witness in the eye and challenge the story being told.