Zoom Testimony Over Objection Violates Face-to-Face Confrontation, but Relief Turns on Harmless Error and Non-Waiver

Case: People of Michigan v. Robert Lee Hicks
Court: Supreme Court of Michigan
Date: May 22, 2026
Disposition: Application for leave to appeal denied; Justice Hood concurred separately.

1. Introduction

This case arises from a series of crimes committed by Robert Lee Hicks and Adam Cartwright in Macomb County, including the theft of a victim’s van and wallet while one of the perpetrators was armed, followed by a prolonged police pursuit ending in a crash and arrest. Cartwright pleaded guilty; Hicks proceeded to trial on charges including carjacking, armed robbery, and receiving and concealing stolen property.

A central appellate issue was procedural but constitutionally significant: whether the trial court violated Hicks’s Confrontation Clause rights by permitting Cartwright—Hicks’s former codefendant and a key inculpatory witness—to testify via Zoom from the Michigan Department of Corrections, despite Hicks’s repeated, explicit objections demanding face-to-face confrontation.

The Supreme Court denied leave to appeal. Justice Hood concurred, writing separately to (i) identify a Confrontation Clause violation, (ii) reject the Court of Appeals’ conclusion that Hicks “waived” the issue, and (iii) underscore a broader concern that Confrontation Clause violations are routinely deemed harmless, risking dilution of the right.

2. Summary of the Opinion (Justice Hood’s Concurrence)

• No waiver: Justice Hood concluded the Court of Appeals erred by finding waiver. Hicks’s prior explicit objections to Zoom testimony were inconsistent with “intentional relinquishment” of the right.
• Confrontation violation occurred: Because Cartwright testified remotely over objection—without physical presence/face-to-face encounter—the Confrontation Clause was violated.
• Harmless error: Despite the preserved violation, the error was harmless given the strength of the evidence (Hicks was arrested after a long chase in the stolen vehicle, and Cartwright directly implicated him).
• Systemic concern: Justice Hood questioned whether courts can “adequately or consistently” measure prejudice from confrontation violations—warning that if violations “never” produce prejudice, the right risks becoming illusory.

3. Analysis

A. Precedents Cited

People v Jemison, 505 Mich 352 (2020)

Jemison provides the controlling Michigan Supreme Court framework for remote testimony under the Confrontation Clause after Crawford. Justice Hood relied on Jemison for two key propositions:

• Substantive rule: Absent witness unavailability and a prior opportunity for cross-examination, testimonial evidence requires face-to-face confrontation. Justice Hood cited Jemison as reconciling Crawford with the narrower, fact-bound allowance in Maryland v Craig.
• Remedial rule: Even preserved confrontation errors are subject to harmless-error review; Jemison itself remanded for a harmlessness determination after finding a violation.

People v Carter, 462 Mich 206, 215 (2000)

Justice Hood invoked Carter for the canonical definition of waiver as “the intentional relinquishment or abandonment of a known right.” This anchor is crucial because it distinguishes waiver (which extinguishes error) from forfeiture (which preserves error but changes the standard of review).

People v Davis, 509 Mich 52, 64 (2022)

Davis sharpened the waiver inquiry: a party waives an issue when it “clearly express[es] satisfaction” with the trial court’s decision. Justice Hood used this standard to conclude that Hicks—who repeatedly objected—did not clearly express satisfaction merely by acquiescing in a forced choice (either no testimony or Zoom testimony).

People v Buie, 285 Mich App 401, 408 (2009)

Justice Hood drew from Buie the often-cited four elements of confrontation: (1) physical presence, (2) oath, (3) cross-examination, and (4) observation of demeanor by the trier of fact. The concurrence treats “physical presence” as the missing element here, rendering the confrontation guarantee unsatisfied.

Maryland v Craig, 497 US 836, 846 (1990)

Craig permitted a narrow exception to face-to-face confrontation (in its facts, child witness testimony) when necessary to further an important public policy and when reliability is otherwise assured. Justice Hood, following Jemison, treated Craig as limited and not a general authorization for routine remote testimony based on administrative convenience.

Crawford v Washington, 541 US 36, 61-63, 68-69 (2004)

The concurrence positions Crawford as the modern “bright-line” pivot: testimonial statements require confrontation, and reliability alone is not a substitute. Justice Hood uses Crawford (via Jemison) to reject the notion that Zoom testimony is constitutionally interchangeable with in-court testimony when the defendant objects.

Coy v Iowa, 487 US 1012, 1021-1022 (1988)

Coy is cited for the proposition that Confrontation Clause violations are subject to harmless-error review. Justice Hood relies on Coy to explain why identifying a violation does not end the appellate inquiry.

People v Brown, 351 Mich App ___, ___ (May 2, 2024) (Docket No. 359376) (HOOD, J., concurring in part and dissenting in part); slip op at 3-10

Justice Hood cites his own writing in People v Brown to emphasize a continuing institutional concern: courts may be underestimating the prejudice caused by confrontation violations, particularly where the right protects intangible trial values (demeanor assessment, psychological pressure of face-to-face accusation, and the perceived legitimacy of the process).

B. Legal Reasoning

1) Standard of Review and Error Identification

Justice Hood states that whether a defendant was denied confrontation is a constitutional question reviewed de novo (citing People v Jemison). Applying that standard, the concurrence concludes that Cartwright’s remote testimony—given “over Hicks’s multiple explicit objections”—necessarily violated confrontation because it lacked physical presence/face-to-face encounter.

2) Waiver vs. a Forced Choice

The concurrence’s most practically important move is its rejection of “waiver.” Justice Hood frames the record as presenting Hicks with a constrained choice after the trial court announced the witness was available only via Zoom: proceed without Cartwright, or accept remote testimony. In that setting, Hicks’s statement that Cartwright should testify does not equate to “intentional relinquishment” or “clear[] satisf[action]” with the Zoom format under Carter and Davis, especially given Hicks’s prior repeated objections.

3) Harmless-Error Review and the “No-Remedy” Problem

Having found a preserved violation, the concurrence applies harmless-error review (citing Coy v Iowa and Jemison). Justice Hood concludes Hicks “cannot establish prejudice,” emphasizing:

• Hicks was arrested after an extended chase in the stolen vehicle; and
• Cartwright’s testimony directly implicated Hicks.

This creates the tension animating the concurrence: if face-to-face confrontation is treated as fundamental, but violations are regularly deemed harmless whenever the record contains strong inculpatory evidence, the right may functionally shrink to a formalism—recognized in theory, but rarely remedied in practice.

C. Impact

1) Remote Testimony Administration

Although not a binding merits decision, the concurrence signals that administrative limitations (e.g., MDOC not accommodating transport despite a writ) are not, by themselves, a constitutional substitute for face-to-face confrontation when the defendant objects. Trial courts and prosecutors should expect continued scrutiny when remote testimony is used for convenience rather than necessity meeting constitutional standards.

2) Appellate Framing: Preserved Error Without Waiver

Justice Hood’s waiver analysis, if adopted by future panels, would make it harder to characterize a defendant’s participation in a constrained choice as waiver. Defendants who object clearly and persistently may preserve confrontation claims even if they later agree to proceed under the court’s imposed conditions.

3) The Remedy Gap: Harmless Error as the Decisive Battleground

The concurrence underscores that the decisive litigation often shifts to harmless error. Even when a defendant establishes a confrontation violation, relief will commonly turn on whether the reviewing court perceives the trial outcome as unaffected. This can incentivize litigants to develop a record on how remote testimony changed demeanor evaluation, cross-examination dynamics, jury perception, and the overall adversarial atmosphere—features that are hard to quantify but central to confrontation.

4. Complex Concepts Simplified

• Confrontation Clause: The constitutional right of a criminal defendant to confront (face) the witnesses who testify against him, traditionally in the courtroom.
• “Face-to-face” / physical presence: The witness is physically in the courtroom, allowing the defendant and jury to observe demeanor directly and imposing the solemnity of in-court accusation.
• Testimonial evidence: Statements (including in-court testimony) that are made for evidentiary use in a criminal prosecution. Under Crawford, testimonial evidence generally requires confrontation.
• Waiver vs. forfeiture: Waiver is a deliberate surrender of a right (often eliminating appellate review). Forfeiture is a failure to timely assert a right (often limiting review). Justice Hood says Hicks did not waive because he repeatedly objected.
• De novo review: The appellate court decides the constitutional question fresh, without deferring to the trial court’s legal conclusion.
• Harmless error: Even if the court made a constitutional mistake, the conviction stands if the mistake did not affect the verdict (as determined under the governing harmless-error standard).
• Writ (transport writ): A court order directing authorities (here, MDOC) to produce an incarcerated witness in court.
• Res gestae (as referenced in the record): In Michigan practice, often used colloquially to describe the obligation to produce or the right to call certain witnesses connected to the occurrence; here, defense counsel referenced exercising rights to secure Cartwright’s appearance.

5. Conclusion

Justice Hood’s concurrence in People of Michigan v. Robert Lee Hicks identifies a straightforward rule application with an uncomfortable practical consequence: compelling Zoom testimony from a key witness over a defendant’s objection violates the Confrontation Clause’s face-to-face requirement, yet the violation may still produce no relief under harmless-error review. The concurrence also cautions against overusing “waiver” when defendants merely submit to constrained trial-court options after preserving objections. The broader significance lies in the opinion’s warning: if courts routinely find such violations harmless, confrontation risks becoming a right without a remedy—an issue likely to recur as courts continue to balance institutional constraints against constitutional trial guarantees.