While those commentators correctly point out the Crawford Court's retreat from the "reliability" standard, there is nevertheless reason to conclude that the Craig test is not constitutionally suspect.
(153) The Eleventh Circuit, however, held that although "presenting the fact-finder with crucial evidence is, of course, an important public policy," under the circumstances of the case, including the possibility of a Rule 15 deposition in Australia with all necessary parties present, (154) "the prosecutor's need for the videoconference 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." (155) Having thus decided that the first prong of the Craig test was not met, the Yates court did not address whether the reliability prong was satisfied.
(163) Those commentators thus suggest that the Craig test for permitting witnesses to testify outside of the direct presence of the defendant might be constitutionally suspect after Crawford because the Craig test uses a "reliability of the evidence" standard.
The majority also seems to have placed great weight on a separate statement filed by Justice Scalia, wherein he indicated that the proposed amendment was of "dubious validity under the Confrontation Clause." (147) Justice Scalia argued that the Craig test should apply and limit the use of remote testimony in criminal cases to instances in which there had been a case-specific showing that it was "necessary to further an important public policy." (148) Of course, as the dissent in Yates pointed out, Justice Scalia's statement has no official legal weight and may not reflect the reasoning of the remaining Justices in the majority who refused to recommend Proposed Rule 26(10).
Circuit Court of Appeals, which covers South Carolina, likewise has acknowledged the Craig test
as the measure for considering whether two-way closed circuit testimony is permissible under the Confrontation Clause.