Long v. State

I also add that even under would

mаjority’s has LONG, analysis, issue been Appellant, James Edward says wrongly majority decided. The and the “the State did not claim below Texas, Appellee. The STATE of opinion original on submission never No. 867-85. might problem mentions there be a preservation of error.” Texas, Appeals Criminal

[*] ^{[*] [*] [*]} sfc ^[*] , En Banc. July error, “The State not concede below, as it did and then for first very complaint here that

time submit appeals, se- withheld from the court of thought cure in the that this Court will appeals determine the court erred deciding consequences the error the open it in

State confessed to court....” First, stated, of the record as earlier review that the “conceded”

does not disclose error, argued simply in the alternative. but issue,

Second, the State addressed the al- appellant’s modestly, reply under its beit ground second of error to the court of placed I appeals. believe the State on sufficient “notice” of appeals court appellant’s satisfy claim to defect majority’s policy new found where it was written: Appellant although “Note also concurring J., Campbell, filed (pho- objected to introduction of this dissenting part. part

tographs) testimony, on grounds that the was obtained anyway excludable based brief, search warrant.” State’s

invalid page 9. above, I must dissent.

For the reasons WHITE, JJ., join DAVIS and W.C. in this dissent. Jackson, Dallas, Anton,

Frank Bruce appellant. Wade, Atty. D.

Henry Dist. and John Nation, Fitz- Kenneth Carden and Knox Dallas, Attys., Robert Dist. patrick, Asst. Austin, Huttash, Atty., for the State’s State. STATE’S PETITION FOR ON

OPINION REVIEW DISCRETIONARY DUNCAN, Judge.

I. sexual indicted for appellant proscribed a child as then

abuse of Following a 21.10, Tex. Penal Code.1 § trial, convicted and jury appellant was punishment at that maximum assessed the twenty statute: permitted under the time of Correc- Department Texas years in the $10,000.00 fine. tions and Appeals the Fifth Court appeal On alia, claimed, most appellant inter admis- that the trial court’s significantly, 1986-1987). (Supp. Code Tex.Penal § 22.011 and 1. Now pre-trial videotaped of a sion interview of sex, anal and any- oral which occurred complainant, as authorized 38.- Art. day where from seven two to times a dur- 071, 2, V.A.C.C.P., improper because approximately years three he lived depriva- the statute is an unconstitutional complainant and her mother. tion his the confrontation under trial, At appellant’s the the videotape of Sixth Amendment to the United States the interview was admitted into evidence Constitution, applicable as made to the played jury. for the tape Prior to the states the Fourteenth Amendment. being appellant admitted into evidence the Texas, 400, See: Pointer v. 85 interjected objection admissibility to the 1065, (1965). And, 13 L.Ed.2d 923 videotape essentially the the on basis similarly I, unconstitutional under Art. appellant it denied the his of10 the Texas In Constitution § confrontation. State, published opinion, v. Long 694 S.W. the 185, videotape displayed After to the (Tex.App. 1985, pet. 2d grant- —Dallas jury, witnesses, ed), the State called several Appeals agreed the Court of with the including complainant’s the appellant’s mother. Since contentions and decided that 38.071, 2, pertinent their supra Art. is not to the patently issue and as § confronting appellant’s prosecution utilized in the the Court it will not un- be summa- Thereafter, constitutional. Because there are conflict- rized. the State rested its case Appeals’ opinions granted Court of we chief: the Discretionary State’s Petition for Re- appellant The then testified. In summa- view to review that decision.2 ry, recounting surrounding after the events record, According shortly before his arrest and a conversation had he with trial, appellant’s request at the complainant’s mother, appellant Office, Attorney’s District di- assistant complainant’s allegations stated that Rape rector of the Dallas Crisis Center had were not true. He then to his testified videotaped interview with the twelve- prior relationship complainant with the year-old complainant. During taped in- mother, i.e., long her when he how terview, complainant commented lived with them. He also testified to cer- relationship appellant her with the and re- tain additional matters not to this relevant sexually vealed number related inci- therefore, appeal; portion his testi- occurring her appel- dents between and the mony not be summarized. will According M_P_, appel- lant. cross-examination, On in addition to sev- boyfriend lant was her mother’s who had perti- eral other matters that are also not period lived them for some extеnded appeal, appellant again nent to this experience That time. her first sexual engaging denied ever or oral inter- anal appellant with the occurred when she was complainant. course with the years five about and one-half old. At that appellant’s The wife then testified essen- time, working, while the child’s mother was tially relationship ap- about their and the appellant took her into her mother’s pellant rested. my sucking vagina.” and “started bedroom rebuttal, Then, dolls, pursuant The to Art. utilizing anatomically State correct 38.071, 2(b), complain- complainant supra a sordid and dis- called revealed M_P_to ant, gusting testify. prelimi- series of After sexual activities between appellant nary questioning age, her her and the that included both relative to school case, State, (Tex. granted); Mallory 946 In addition to this the Courts in v. 699 S.W.2d 2, 1985, pet. following App. granted); Tolbert cases have declared Art. v. —Texarkana State, State, supra (Tex.App. Buckner v. 697 S.W.2d 795 [1st] unconstitutional: —Houston 1985, State, pet. granted); (Tex.App. pet. v. S.W.2d 644 Worth Alexander S.W. —Fort filed); State, (Tex. pet. granted); (Tex.App. 2d Romines v. 717 S.W.2d 745 —Eastland State, filed). pet. Jolly (Tex.App. App. fol Worth v. 681 S.W.2d 689 —Hous —Fort State, lowing pet. granted); Appeal cases the Courts of found the ton Woods [4th] pet. (Tex.App. 713 S.W.2d 173 statute constitutional: Whittemore —Texarkana filed). pet. (Tex.App. Beaumont, S.W.2d — attendance, appellant returned to stand and apparent The nervousness of the sexual encoun- perti- that none questions reiterated began ask more occurred, complainant had ters with prosecution. point At that nent requested her mother have and that he had objected, asserting appellant complainant physically examined. questioning “improper rebuttal State’s nothing more reiteration of ... than [and] point At sides rested and both appellant’s on direct.” v/hat occurred closed.3 complainant objection was overruled. essentially proceeded then to relate II. sexually same related encounters series Art. At this case whether issue appellant that recorded with the had been 38.071, infringes upon a V.A.C.C.P. previously displayed ‍‌​‌‌‌​​​‌‌‌​​‌‌‌​‌​‌‌​​‌​‌​​​‌​​​​‌​‌‌​​​‌​​‌​​​‍videotape on and the by his be сonfronted defendant’s ap- During testimony jury.

to the her the guaranteed by the and as Sixth accusers time, however, again pellant objected, this of the United Amendments Fourteenth “improper he claimed the I, and Art. 10 of the States Constitution bolstering.” The trial court also overruled very the Because of Texas Constitution.4 complainant’s the testi- objection this significant nature of this and controversial mony suf- satisfactory It is continued. analysis thorough issue of one’s of note the of her direct ficient to that balance necessary. confrontation is recounting the same testimony was her theory prin- It that the is undeniable experiences with specific sexual she had indelibly linked ciple confrontation of already had dis- appellant the been practice excluding from the evidence of videotape. the played jury the fact, hearsay confrontation statements. complainant re- On cross-examination the arose evolution of what we know from the session, videotape tape called the conversa- hearsay Historically, judi- rule. the as the prosecutor had the and a tions she with hearsay policy excluding statements cial of Attorney’s investigator, as well as District idea, living ... not “as distinct and [did] who, and when she told the sexual what pre- final gain complete development and Concluding his cross-examination abuse. Wigmore, early 1700s.” cision until the following appellant question, asked the the Evidence, ed., 5, p. Wigmore on 3rd vol. as that was answered noted: Co., 1940) (Boston: Little, Brown and [here- Now, “Q. M_, Okay. you did tell Wigmore to as inafter referred ]. past someone that back down procedure inception At your you reason that told that the ultimately jury was to become you having mother that were this witness, (circa 1300’s), per- tidal as we relationship Long type of with Mr. charac- today, ceive him was an unknown you didn’t want here is because instead, by the was reviewed ter. evidence get together? them to back previously designated from jury principally Yes, “A. true.” [sic] open court. witnesses who did knowledge, Rather, their jury solicited complainant claimed that On redirect the usually acquired from some they had abuse which she also told оf the sexual “because source, with and conferred talking getting to- undisclosed they about back were prac- through privately. them Consistent just I so much gether, and went tice, disputes facts were “where bad, in those so ...” pain and hurt examination into jury, voir dire charge being After an extensive read 3. Prior by however, expert permission qualifications to re- as an received . the State witness showing defense, open purpose there judge, "that the State aban- for period evidence after a be no medical would three efforts and closed. doned its months, of a child involv- of sexual abuse offered either further evidence No intercourse_" ing anal party. jury presence Outside witness, Delipsey, to elicit its first Jan recalled V.A.C.C.P. 4. See also Art. testimony. such which, think, Going involved as we should needed development hand-in-handwith the testimony, hearsay other concept the counsel stated them rule confrontation, by allegations, special might physical and a or the hav- present the witness might purpose not be sustain Therefore, hearsay cross-examination. Id., As the rule allegation.” p. be- late English came entrenched in commonlaw so beginning as at the centu- sixteenth did accomplishing primary the means of ry practice jury it was common for a (cross-examination): purpose physical con- obtain “evidence” from outside the sources Thus, although 'frontation. “the main idea court, including assertions of another what process of confrontation is that of had would say. said or the opponent’s opportunity of cross-exami- Gaining popularity at this time was nation; the [physical former confrontation] the frequent parte depositions, use of ex merely feature, prelimi- dramatic During both peri- sworn and unsworn. measure, nary appurtenant to the latter.” time, however, od of these methods of ac- Id., p. 124. quiring being sincerely evidence were also however, ignore, This is not to the sub- questioned. Nevertheless, practice per- benefit stantial that can derived re- sisted.5 quiring present witnesses to for themselves By acceptance the 1680’s the wholesale is, cross-examination.- the That trier of hearsay of statements had fallen into disfa- given opportunity observing fact is the of excluding quick- vor and such was evidence the demeanor of the and witness draw ly becoming practice. Although, common subjective appropriate whatever conclu- according Wigmore, precise date or “[n]o sions that can with be associated that ob- ...,” ruling Id., p. stands out as decisive physically servation. With the witness generally accepted it hearsay that the credibility the witness’ can be rule became established 1675 and “between said, judged just not from what is but how 1690.” Id. In judging credibility it is said. the of a right. is a most valuable hearsay The rule principally came about obtaining because the former So, methods of historically, right of confronta- protect evidence failed er- essentially one purposes. tion has two First rors or untrustworthiness. One means of and foremost that it affords accused exposing proce- opportunity deficiencies of these was cross-examination. Sec- ond, dure and almost incidental to cross-exami- of cross-examination in which the ad- nation, physical confrontation. There- verse witness’ statements were scrutinized. fore, terms, in again at least historical possible It has stated “many been “[i]f cross-examination, there has been a there deficiencies, suppressions, of sources error Id., p. a has confrontation.” 127. In been untrustworthiness, and lie under- which words, right physi- other witness’ to a neath the untested of a bare assertion wit- presence secondary necessity cal was ness, may brought light best and being given opportunity of one to cross- exposed test by the of cross-examination.” examine the witness. Id., Thus, p. principal purpose hearsay primary rule factor re- hearsay early While rule sponsible doctrine’s evaluation and stages development of too was the co- so acceptance right that it of ensured the lonization of America at Jamestown Accordingly, the funda- Plymouth cross-examination. Rock. There is no doubt that the rule, purpose of the histori- English mental at least intended that law was to Crown Atlantic, cally, provide was to an move with colonists across new home in For exam- cross-examine witness. to their America. Graham, Right complain- a “The of 5. The of defendant to confront front his accusers. See: essentially begins public’s Hearsay witnesses Rule: Sir Walter Confrontation Raleigh. Another,” Walter Sir Walter Ra- reaction to Sir leigh Raleigh Loses Crim.L.Bull. of was convicted treason after affidavit, being without ever allowed to con- ings, a Queen granted every man has to ... confront pie, patents Elizabeth Raleigh Virginia contained statements Id. The Bill of Gilbert the accusers.” settled under these “that the colonists Rights similarly guaranteed ac- grants possess should the same constitu- has “to be confronted with cused a witnesses_” enjoyed English- tional as were Id., p. 23. the accusers and Heller, men in the homeland.” The Sixth Rights of Massachu- Declaration Amendment to the Constitution Rights Hamp- Bill of of New setts and the Study A United in Constitutional States: including rights, identical shire contained (Greenwood Development New Press: that of confrontation. York, 1969), However, p. 13-14. the coloni- proce Although the details criminal experience divergencies produced al some in the consti dure were not embodied draft England. the law of from tution submitted to the Constitutional Con departure One the colonists made from very delegates it was not vention particularly signifi- English law that is cry Bill long that a for a afterwards Europe’s adoption was the colonies’ cant Rights being a heard. There was prosecutor. re- system public great proposed opposition deal of that, sult of this action “was time did not Constitution because it contain Eng- virtually all but treason trials when part Bill which en Rights, would land were still the nature of suits be- procedures. accepted criminal sure certain parties, in the private tween the accused example, For one of the Anti-Federalist government faced a official whose colonies papers, opposed proposed which consti specific prosecute....” it function was to tution, security “For the was stated: Id., practical p. 21. The of such effect life, prosecutions, in criminal the bills of prosecutorial authority was declared, rights the have of most of states government a ad- would have substantial for a that no man shall be held to answer vantage extreme over a defendant “unless against him crime until ...— the witnesses vigilance practiced safeguard the was face_” brought face to Kam shall be precarious privileges recently granted to so men, Origins The the American Consti of Id. the accused.” (Viking Documentary History A tution: “privileges” These were so valued York, 1986),p. Penguin Inc.: New 315-316. Congress the in 1774 declared Continental was ratified without a The Constitution In that the colonies were entitled to them. However, Rights. Bill it achieved rat- of fact, early as 1776 the of as Declaration “only where ification because crucial states Rights Maryland, of in addition to declar- doubt, willing had were ratification been were entitled to the citizens rights accept promise a of the of bill England, law of also stated that common subsequent amendments the the form of they by jury were entitled to Levy, Constitution.” Constitutional every in crimi- rights “the which man had Rights Aspects the Bill Opinions: of proceedings: nal ... to be confronted with of York, (Oxford University Press: him_” New Id., 22. p. the witnesses 1986), p. 117. right The of confrontation had become Rights the of the Bill of The nucleus part accepted procedure of criminal were devel- state constitutions that various prior even to the American Revolu- colonies independent. oped after America became This is reflected in the North Car- tion.6 states twelve proceed- At the time of the Convention “in all criminal olina Constitution: only advisory. It is rather inter- had were in Massachusetts verdicts esting 6. The Puritans who settled note, however, possessed permit that all of the lawyers and did not a low of Consequently, required into court and to come practice children were of in the colonies. law presence witch detail the' many English the defendant principles common law of of Thus, right sorcery. the al- justice one that even applicable the enjoy to their criminal were not right leged of confron- example, did proceedings. the Salem witch witch For description of Salem not For a detailed defendants did tation. trials in 1692 the numerous enjoy innocence, Starkley, The Devil in they see: Marion presumption obvi- witch trials of York, 1949). (New Knopf: jury A.A. ously Massachusetts were not entitled tо counsel produced had constitutions. None III. constitutions, however, state included as right confrontation, aas state comprehensive rights recog- a bill of which guaranteed right, paral- history has a guarantees nized the that evolved into the independent repub- lels that of Texas as an thing first ten amendments. one lic, and example, later as a For state. various state constitutions did have in com- Republic Constitution of the in- of Texas mon, however, they was that all secured cludes, under title “Declaration of right by jury to trial and this included Rights,” following: right to be confronted one’s accus- prosecutions Sixth. In all criminal Some, Virginia’s ers. such Constitution accused shall ... be confronted with the protect failed freedom of against him,.... witnesses Sayles, See: speech, corpus, ensure writ of habeas The Constitution the State Texas guarantee right grand pro- or jury (E.H. Houston, Cushing: 1872), p. ceedings. Pennsylvania’s bill comprehensive Virginia’s,

more than but adopted it 1845 the new State of Texas to, among things, failed other ban exces- the first of several successive constitutions. punishments. sive fines and cruel But guarantee It continued of confronta- states, reject- even these who overlooked or tion, Id., p. February 186. On 1861 an values, ed several of our most treasured adopted “ordinance” was at a state conven- ignore reject did of con- which tion seceded Texas from the United frontation. becoming part States. After of the Con- America, adopted federate States Texas passively Almost confronta- a new constitution. It also continued way every tion found its into document policy guaranteeing persons to accused that could be considered forerunner of (Art. I, 8). of confrontation7 necessity the Constitution. The of its in- Id., p. 226. clusion into apparent- the Constitution was ly simply viewed so to be absolute and Following the Civil theWar Constitution was that confrontation one of the became of 1861 was 1866 at amended in a conven- guarantees accorded accused individuals. guarantee tion Austin. The of confron- incorporation apparently Its fore- was a (Art. I, 8). tation was not disturbed Id. § gone generated conclusion that no serious Howevеr, government orga- 300. at among delegates simply debate because nized under the 1866 not Constitution was right confront one’s accusers one approved by Congress of United guarantees of fundamental of life and Consequently, States. another Constitu- , liberty. thought: It was because “the tion, approved by which later Con- was criminally legit- accused are gress, July, in That was ratified 1869. against imate defenses of the individual right also con- Constitution included of government, enduring because the [and] (Art. I, 8) Vernon’s Texas frontation § require society justice of interests Ann., “Early Or- Constitutions and Const. fairly possible,” be done as as Id. at Laws,” (1955). ganic p. vol. right explicit- of confrontation must be people Texas ratified the In 1876 the of ly protected. And was. so it present Constitution. The confrontation 8, 1789, June James Madison intro- On provides: in clause Constitution Rights Congress. Bill of On duced the Rights 10. of Sec. Accused Criminal 26, 1789, September Congress adopted the Prosecution. Rights of Bill and submitted them to prosecutions In ac- all criminal states for ratification. On December by the cused shall be confronted Rights Bill ... Virginia ratified the him_ I, Art. they part witnesses became Constitution. I, 17). | IX, p. (Art. Sayles, supra, paragraph The Constitution of the Confederate States of 7. right of 287. America also included the confrontation Wigrnore, principle merely as such. su- Texas Constitution.8 § And, noted, pra physical as actual right The confrontation enacted in the absolute—it confrontation was ever actually of the Texas Constitutions earliest generally viewed as a viable means was provision express an consistent with was indispensable In other reach the end. “in the common law all criminal cases words, presence by requiring an accuser’s IY, 13 Art shall be the rule decision.” of cross-examina- in court Republic Texas Constitution necessarily attained. tion is Therefore, right of confrontation same guarantee- In evolution as form of its original adopted by the thirteen that was exceptions numerous cross-examination way its 1787 found United States hearsay If impressed upon the rule. were very by 1836.9 came with Texas What exception applicable was then the denial interpretations were valuable forgiven. of cross-examinаtion was impressed upon exceptions it that had been early exceptions were based two con- Accordingly, in its historical England. necessity for the siderations: a evidence purpose main and essential evolution the being trustworthy. probability and the of it to secure for accused confrontation was could, instances, Necessity in most be opportunity of cross-examination. Sec- being equated a witness dead or other- however, ondary purpose, to that legally probability unavailable. wise presence of one’s accuser court. These actually short- trustworthiness purposes were the foundation of distinct asserting that when handed rendition recog- never the rule because common law cir- experience indicates that under certain physically nized absolute the accuracy of the cumstances the evidence face one’s accusers. The of cross-ex- adversely affected cross- would not be amination, however, viewed as indis- sufficiently it was reliable. examination purposes pensable. These or distinctions words, types hearsay certain infor- other necessarily adopted when the theo- were normally accurate and valid to mation principle of later retical confrontation was purpose of cross-exami- the extent that the adoptéd in Texas. subjecting nation would not served be stated, As confrontation was not without Consequently, such to cross-examination. exceptions. its limitations and Even the though even evidence will admissible “indispensable” right of cross-examination As a does not occur. cross-examination declarations, exceptions, result, dying reputation, “involved the idea of and the records, other among numerous general makers Constitution endorsed business (1876) suscep- easily portion latter Texas Constitution 8. The the Texas Confrontation “except vigorous provides Clause as follows: that when inter- affirmative and tible to more out the witness resides and the of the comparable pretation confrontation than the charged any offense is a violation of right of Sixth Amendment. The clause of the of anti-trust laws the defendant and guaranteed under the Sixth confrontation right produce have the the State shall pas- presented in a more or less Amendment is by deposition, have the evidence admitted under prosecutions, style: “In all criminal sive Legislature may such rules and laws as the enjoy to be shall ... confront- accused provide.” hereafter him; against ...” Where- ed with the witnesses is one of the few made to This amendments as, I, emphatic: arguably "In 10 is more Art. Rights. adopted It Bill of Texas prosecutions accused ... shall all criminal 1917, only obviously applies violations against by the him.” confronted witnesses be According anti-trust laws. to one au- state I, framed, Or, terms of § 10 is not “in Art. thority, "A search of historical records failed to granted, mandate [sic] but in terms clear up any turn clear reason for the amendment." confronted’_” by the ‘shall be the accused 10,” III, Searcy Rights: 9 & §§ Seth S. "Bill of Miller, against “Does the Child him. witnesses An The Constitution the State Texas: Anno- Videotape the Confron- Statute Violate Witness George Comparative Analysis, ed. tated and D. Texas Code Clause?: Article tation 1, 1977), n.p., p. (n.p.: Braden vol. 36. Procedure,” 1669 Tex.Tech.L.R. Criminal point 9. It relevant at this to note that the (1986) at 1681. I, syntax Art. of the confrontation clause in exceptions,10 though guards are admissible even 692, Id. essential to a fair trial.” at opportunity neither the for cross-examina- 51 S.Ct. at 219. See also: Parker v. Glad- physical tion nor confrontation have oc- den, 363, 468, 385 U.S. 87 S.Ct. 17 L.Ed.2d curred. (1966). Further, Alabama, in Douglas v. IV. 415, 1074, U.S. 85 S.Ct. In Supreme 1895 the United States Court (1965), while conceding aspect the inferior examined the confrontation clause in Mat confrontation, physical the court stated: States, tox v. United 237, 156 U.S. 15 S.Ct. construing “Our cases the clause hold that 337, (1895). 39 L.Ed. 409 Mattox primary by interest secured it is the defendant had originally been convicted of cross-examination; adequate opportu- an murder. That conviction had been re nity for may satisfy cross-examination versed and remanded for a new trial. Pri- clause even in the physical absence of con- or to the govern new trial both of the Id. at frontation.” at S.Ct. 1076. prosecution ment’s During witnesses died. Supreme The commitment of the trial, the second objec over the defendant’s ensuring confrontation, or more accu- tion, copy reporter’s “a transcribed rately for cross-examina- ...,” Id. at stenographic 240,15 right Amendment’s of an accused to con- States, supra Mattox v. United In the against him front the witnesses is likewise primary purpose historical and of the obligatory a fundamental and is made given judicial approv- of confrontation was by on the the Fourteenth Amend- Continuing recogni- al. to adhere to such 403, 85 Id. at 1067. ment.” S.Ct. v. United Supreme tion the Court in Alford States, 687, 218, Emphasizing necessity oppor- the 282 U.S. 51 S.Ct. 75 L.Ed. cross-examination, (1931), tunity Supreme 624 commented that simply under is “one of the safe- Court concluded that cross-examination Tex.R.Crim.Evid., 10. See R. 803 and R. 804.

31J noted, Obviously, previously ex- provided not and as facts the defendant was however, ceptions right, to this have arisen adequate opportunity “an to cross-examine Supreme 407, by the approved and been Court. Phillips complainant]_” Id. at [the Green, example, in 399 For v. Accordingly, the defend- 85 S.Ct. at 1069. California 1930, 26 489 U.S. L.Ed.2d reversed. ant’s conviction was (1970) of witness the statements a that inarguable recognition is that hearing, preliminary were made at a then opportunity of cross-examination as cross-examination, subject to were admissi- laying principle at the foundation of prior at the defendant’s trial as a incon- ble right of confrontation Sixth Amendment Stubbs, In Mancusi v. sistent statement. by enjoyed a consistent commitment has 204, 92 L.Ed.2d 293 408 U.S. S.Ct. Quite Supreme United States Court. (1972) Supreme Court held testimo- Supreme recently, the Court reiterated ny previ- a subject to cross-examination at by perception of the confrontation clause when the ous trial was admissible commenting: country. was out opinions of this Court show Roberts, 56,100 In v. 448 U.S. S.Ct. Ohio right, right of is a trial confrontation (1980), Supreme designed prevent improper restrictions again Sixth Court visited the Amendment questions types on that defense coun- although and its Confrontation Clause during ask cross-examination. sel recognized exception nonetheless opportu- emphasized its commitment to the short, clause In the confrontation Factually, the nity for cross-examination. guarantees ‘an for effective charged with defendant arrested and cross-examination,_’ Pennsylvania hearing forgery. preliminary At his he — Ritchie, U.S.-, S.Ct. сomplainant’s witness the called Rept. 94 L.Ed.2d Cr.Law anticipating daughter that she could (1987). execution of that she had authorized his However, not do this. the cheek. she did But, physical confrontation has been Rather, gave the check to she denied she ignored by Supreme Court. For exam- the defendant. ple, per recent curiam somewhat included these rather clear Court as he At his the defendant testified trial comments: daughter anticipated complainant’s had have, i.e., given him her

This Clause cases she had Court’s Confrontation would categories: permission in- into broad cases and had fall two father’s checkbook volving During the interim between the admission of out-of-court so. do the com- involving and his trial statements and cases restric- arrest defendant’s her imposed by by plainant’s daughter had moved and tions law or trial court result, scope unknown. As on the of cross-examination. The whereabouts were daugh- long- transcript of the category Court’s offered a first reflects the the State pursuant a state statute standing recognition the “literal ter’s authorizing admissibility of such evi- right to ‘confront’the witness at time testimony. complainant’s rebut the forms the core values dence to ... right of that his by Clause.” claimed furthered the Confrontation The defendant by admitting Fensterer, violated confrontation Delaware 292, 294, 88 L.Ed.2d such statement. reviewing this case Understandably, there have been no confron- the role of again recognized Su- United States Court decided cases observing that the Constitution practice of tation in preme Court that authorizes con- emphasized that the has Right of Amendment’s which Sixth “[t]he for preference reflects a clause frontation to exclude: was created Confrontation trial, that at confrontation face-to-face parte or ex affidavits....” “depositions n interest, Sixth secured States, primary ‘a supra. [the Mattox v. United 312 This, is the in conjunction cross-examina-

Amendment] taken with prosecu- ” Id., 63, tion.’ at 100 at S.Ct. 2537. This proving tion that the witness was unavail- predisposition is primarily upon based able rendered the transcribed testimony ad- principle opportuni- that the of the absence missible. ty to test the and accuracy truthfulness а (cross-examination) witness’ summary, In Roberts, v. Ohio su important “so that the absence of proper pra, supportive proposition that question confrontation at trial into ‘calls prior testimony to be admissible there integrity fact-finding ultimate proof must be that the witness was un ” process.’ Id., at 100 S.Ct. at 2538. previous available and there had been a noted, Continuing, however, the court opportunity If, for cross-examination. public interest demand deviations however, available, irrespec the witness is interpretation from a literal of the lan- reliability” tive of the “indicia of otherwise guage of the Sixth Amendment a and as statements, her “purposes public exceptions result of the interest are requirement,” behind the' confrontation gradually born and excep- evolve. These Green, supra, v. are not California tions, hand, only applicable on the other are by dispensing achieved with the guidelines when established are met. Although face-to-face confrontation. First, hearsay statements, relative to a opportunity for cross-examination is the Id., necessity,” “rule of at 100 at S.Ct. dominant concern of the confrontation Thus, imposed. 2538 is even those in- clause, physical presence of an accuser previ- stances where cross-examination has ignored. is not it so subservient that can be ously prosecution “the occurred must ei- Nor, it be. will produce, ther or demonstrate the unavaila- bility of Roberts, the declarant whose statement it supra, Ohio v. consistent Id., wishes to use the defendant.” Court’s comments hearsay before the statement will be Page, Barber v. U.S. Second, if proven deemed admissible. it is In that L.Ed.2d case unavailable, that the witness is “the Clause hearing preliminary Court held only hearsay countenances [confrontation] testimony of a co-defendant inadmissi- marked with such trustworthiness ble, irrespective previous waiver of departure ‘there is no material from the cross-examination, the State failed because ” general reason of the rule.’ Id. There actually the co-defendant was un- show must, be, as therefore noted California available. Green, supra, some “indicia of reliabili- ty,” Id., hearsay testimony befоre the will V. evidence,

be admitted into even if the wit- ness is unavailable. The ratification of the federal Bill Rights power limit instances, exercise to according some court, reliability authority government. this indicia of can be as- the federal sumed, provided original “the evidence falls within It was not intent of the del- hearsay firmly [emphasis Congress rooted egates to second to create added] Id., exception.” at S.Ct. at 2539. authority any limitation In other instances the evidence must be regulate conduct within thirteen states showing particular- excluded “absent their The Fourteenth Amendment borders. ‍‌​‌‌‌​​​‌‌‌​​‌‌‌​‌​‌‌​​‌​‌​​​‌​​​​‌​‌‌​​​‌​​‌​​​‍guarantees ized Id. trustworthiness.” However, changed obviously that. Texas, supra, that the not until Pointer v. citing Again relying upon essence expressly applied to Sixth Amendment was principles announced in California Therefore, prior 1968 and States. Green, “that the supra, Court observes Pointer, supra, guar- source pre- to cross-examine at the Texas’ defendants anteed confrontation to hearing actual cross- liminary absent —even provisions con- were those in Texas’ several examination—satisfies the Confrontation Id., stitutions, recently that of 1876. S.Ct. at 2541. most Clause.”

313 Nevertheless, interpretation given to frontation of the were mere mimics com- I,Art. 10 the Texas Constitution close- contrary, mon law. the factual To set- ly parallels the evolution of the Sixth tings in which it claimed that one’s was interpreted by as Amendment the United confrontation were abused necessi- States Court. The reason that independent courageous tated and at times guarantees goes are identifiable be- so opinions. yond is, language, the similar that example, for this Court was right source is the of confrontation deciding faced Mexican with whether a na- English Dissenting same: in common law. tional, murder, charged who could not with State, (1896) (Dis- Cline v. 36 S.W. 1099 speak English, interpret- an entitled to senting 722), Judge Opinion, 37 S.W. I, er under Art. 10 of our Constitution. supports Henderson his exam- that appear As absurd as it now ining testimony trial admissible when initially responded negative. in the How- by noting England witness dead in ever, Appellant’s on the Motion Rehear- right such is admissible and the evidence ing the Court stated: to us confrontation “came as understood [T]hey are entitled to be [defendants] England_” in defined at 724. Id. by confronted under witnesses right He further noted that the of confron- apply same to all conditions as others. not, however, stiff, unbending tation “is a Equal justice requires. so The constitu- rule, extending any excep- case without tional of confrontation means some- tion,_” And, per- 726. Id. at rather thing merely bringing more than the ac- suasively he continues: face, cused and face to the witness it apprehend question I no one will dare at embodies carries it the valuable day this that when the amendment to right of cross-examination of witness. constitution the United on this States State, supra, v. 210 Garcia S.W.2d at subject adopted, and when the states 580. adopted part of the Union of their imposed Accordingly, through the Court requiring

constitutions 'in criminal all necessity interpretation constitutional prosecutions defendant be con- furnishing interpreter a him,’ to defendant by fronted the witnesses English. speak who cannot having was done with reference to subject on view the rule in Great Indeed, principal pur- consistent with Id., Britain. 727.11 v. Contra: Cline “to pose pre- of the confrontation clause: State, Tex.Cr.R. 36 S.W. 1099 [36 320] affidavits,” depositions parte ex vent majority (Tex.Cr.App.1896) [this States, supra, v. as far Mattox United opinion]. Appeals back as 1887 the old Court State, Kemper See 138 also: v. 1925 S.W. that was reversed a conviction obtained (Tex.Cr.App.1925). telegram through by sent a use of who court. Confrontation Texas Clause has thus State, 5 Tex.App. v. S.W. Chester 23 great evolved extent because (1887). Chronologicallyprogressing, English influence of the commonlaw. This State, Hays 73 Tex.Cr.R. S.W. recognition is evident the Texas courts’ (1914) a murder Court reversed superior role that the opportunity court admitted the trial conviction because plays for cross-examination state- witness’ into evidence two written State, 151 Tex. confrontation. Garcia The Court original as evidence. ments Cr.R. 210 S.W.2d 574 How- entitled to ever, “Appellant was simply tersely stated: should not assume that one and have by these reviewing be confronted witnesses claims of courts violations Id. the facts.” them of the Texas Constitution’s of con- (Tex.Cr. State, 604 S.W.2d regarding admissibility in Russell v. of ex- 11. The issue history telling of this Apр.1980). but amining merry-go- A brief has been on Judge in footnote 5 of related Clinton issue is since Greenwood v. Tex. 587 round (1871), recently opinion. (hopefully) as but resolved State, Later, Newton v. cess,” 292 S.W. 247 Chambers v. Mississippi, 410 U.S. (Tex.Cr.App.1927) another conviction was 284, 295, 1038, 1045, 93 S.Ct. 35 L.Ed.2d reversed because of the erroneous use of (1973), constitutionally maintained. written statements when sug- there was no gestion that the witness was unavailable. VI. years State, Eleven later in Walding v. Focusing our attention on the challenged (1938) Tex.Cr.R. 120 S.W.2d 1052 statute, Art. V.A.C.C.P., pro- it was decided that because of the defend- vides as ant’s follows: of confrontation the State could prove the essential elements of the old (a) Sec. 2. The recording of an oral adultery (Penal statute Code Art. statement of the child made before the 500) by introducing into evidence the incul- proceeding begins is admissible into evi- patory parte ex affidavit allegedly of the dence if: State, involved woman. See also: Estes (1) no attorney for either party was 162 Tex.Cr.R. 283 S.W.2d 52 present made; when the statement was Similar to the 'United States (2) the recording is both visual and Court, this Court recognized has also aural and is recorded on film or video- approve continues exceptions to the tape means; other electronic right of face-to-face confrontation. For ex (3) the recording equipment capa- ample, regularly maintained business making ble of exception record an accurate hearsay recording, to the ap rule is plicable to Phillips operator criminal cases. equipment of the State, 538 S.W.2d 116 (Tex.Cr.App.1976). competent, and the recording is accu- But even the case well-recognized of a altered; rate and has not been exception to hearsay rule this Court (4) the statement was not made in re- has mandated every case be con sponse questioning calculated to sidered on its own Porter v. merits. particular lead the child to make a State, 578 S.W.2d 742 (Tex.Cr.App.1979), statement; remand, appeal (Tex.Cr.App.1981), after 623 S.W.2d 374 (5) every recording voice on the denied, t. cer identified; (1982) (6) person conducting the inter- Court conceded that the Business Records Act, view of the child in the recognized as a record is exception to the hear say rule, applicable proceeding at the to criminal cases. and available But, imposed the Court the indicia of relia or be cross-examined ei- bility upon consideration the Business party; ther by stating: Records Act “It must be deter (7) attorney the defendant or the mined in each particu instance whether the opportuni- the defendant is afforded an lar record is of such trustworthiness as to ty recording to view the before it is guarantee protection provided by same evidence; offered into the constitutional of confrontation (8) child testify. is available to Id,., and cross-examination.” 747. Accord: Coulter v. (Tex.Cr. obvious, 494 S.W.2d patently As is this statute basi- App.1973). cally significant departure authorizes procedure by from established trial dis- imposition Court’s of the “indi- This pensing requirement pros- that the reliability” upon cia of standard a well-es develop ecution its case in chief in the exception hearsay tablished rule is courtroom, presence judge, simply indicative of our determination that jury, the defendant. As it is a substan- guaran intrusions a defendant’s state recognized proce- tial modification of teed of confrontation must be con produced sidered on dure the motive that such altera- case-by-case basis to ensure “integrity fact-finding pro- that the procedures tion of established was similar- ever, provision the bill ly and well intended.12 Accord- includes substantial portion (D-Fort nullify seems to Hugh bill that ing to Senator Parmer protects by the child from 38.071, the courtroom (Art. Worth), sponsor of S.B. 836 requiring testify the child to in court- response to in- supra), the bill was in of either room at insistence the State or reported incidents of sexual abuse creased Thus, purpose the defendant. “many, many and the times of children statute, part, by in at least is subverted 19, 1983, ...,” Testimony, April the child operation of statute. emotionally physically victim is and unable 836, testify. according S.B. to Senator divergence A from confron- face-to-face “attempts prob- only judicial approval to address that in Parmer tation has received first, Id. The intent of the bill exception in when the two instances: is lem. ...” well-recognized exception hearsаy a preserve initial form was to the statement (understandably, rule the State does not victim, provide of child sexual abuse a a argue suggest a or even that is basis procedural means for it to later admissi- be statute). in- approving The second collaterally in evidence and create a ble infringement in an on literal stance which procedure that accommodates the absence judicially is when confrontation is condoned of victim from the courtroom. cou- public necessity is evident and that is Apparent to Senator Parmer and other testimony having pled an indicia of possibility supporters of the bill was the necessity simply reliability. In this context original in its the bill form intruded means that the witness is unavailable to upon a defendant’s of confrontation. Roberts, supra, testify, Ohio v. indicia challenge In an effort to alleviate such a an reliability prior opportuni- of exists when a pro- the bill It amendment to was added. ty has for cross-examination occurred. vides: Green, supra. California recording If the the oral electronic 38.071, supra, noted, ne- As under Art. a child is into evi- statement of admitted unavailability, cessity, in the sense of section, party dence under this either obviously not consideration and the idea a op- may call the child to “neutral, in a acquiring testimony may posing party cross-examine ...,” Clark, safe Ann French environment 38.071, 2(b), supra. child. Art. § Committee, 19, Jurisprudence April Senate words, In other the intent of the bill was certainly 1983, absent cross-examination provide introducing the state means having an not indicative of the accusing the statement of child defend- reliability. so This is because indicia necessity ant of sexual abuse without the long recognized ago that cross-exami- calling child as This was a witness. of “not is a defendant’s nation supposed protected testing child from the wit- have the recollection [of confronting sifting through the conscience the trauma of abuser ness] witness, him to stand intimidating atmosphere. compelling but of How- courtroom (1984); Maine: Me.Rev.Stat. § statutes Rev.Stat. 421.350 12. Numerous other states have enacted 366, (1985); videotape testimony sexual H.R. § that authorize tit. 15 1205 Missouri: Ann. prosecutions. Sess., the vari- Mo.Legis.Ser Sinсe Gen.Assembly abuse children 1st 1985 83rd legislatures continuously active in ous states' are 20, (Vernon); Mont.Code 61-69 Montana: vice following may incomplete: area list (1977); Act of to 403 Nevada: 46-15-401 §Ann. 85-743; No. Alaska: Alabama: 1985 Ala.Acts 1423; 1985, 462, 3, New ch. 1985 Nev.Stat. June (1984); Ariz. Stat. Arizona: § Alaska 12.45.047 517:13-a Hampshire: § N.H.Rev.Stat.Ann. (1985); Arkansas: Ark. § Rev.Stat.Ann. 13-4235 (1985), 30-9-17 New Mexico: N.M.Stat.Ann. (1985); California: §§ Stat.Ann. 43-2035 to 2037 (1984); York: N.Y.Crim.Proc.Law New 1985); (West Colorado: § Cal.Penal Code 1346 (Consol.1984); Stat. Okla Oklahoma: § 190.32 (1984); Connecticut: § 18-3-413 Colo.Rev.Stat. 1984); (West Island: Rhode § Ann. tit. Sess.; Delaware: Conn.Acts 85-587 Jan. (1985); Dako South 11-37-13.1 § R.I.Gen.Laws (1985); tit. Florida: Del.Code Ann. § (1985); 23A-12-9 § ta: Laws Ann. S.D.Codified (West 1984); May Act of § Fla.Stat. 90.90 (1985); 77-35-15.5 § Ann. Utah: Utah Code (re- 85-53, ch. Fla.Laws § 807; Wis.Stat. Wisconsin: Vt.R.Evid. Vermont: 90.90); designated Kan.S.B. Kansas: from 967.04(7) Session; Kentucky: Ky. Regular No. jury they with the compelling face face order of a state basis interest— him, judge his look at demean- protection ques- of children. We do not stand and the manner which explosive tion the number child sexual gives testimony worthy he whether he reported cases that abuse have over been States, supra, Mattox v. United belief.” Nor, years.13 the last several do we doubt 242, 15 156 U.S. at S.Ct. at 339. in some instances trauma to a child testifying result open does the child Although the electronic advances that presence in the court of the accused.14 The attempts operates this statute to utilize literature and what little statistical evi- precedents, case make this a without state is support dence available such assertions. this first is not the occasion this Court has weigh rights had to the child victim of a However, prior taking the mas right of the of with those defendant’s con- step suspending sive of a constitutional State, Vasquez v. 167 frontation. S.W. right impressing exception upon an it on (Tex.Cr.App.1942) 2d 1030 defendant the compelling of a basis state interest eight-year-old raping was convicted of an must there be evidence that the interest of given child penalty. and was the death public specific in a case substantially principal against The evidence the defend- outweighs the established constitutional ant was the child’s because not of right As the defendant. United she was not called as The a witness. although States Court has stated: grandmother child’s was called a wit- right absolute, of confrontation is not condition, ness and testified to the child’s infringed upon necessary, be when can “ appearance, and told her what the child doing ‘integrity of the before so the fact had done to defendant her. finding process’ requires compet that the Interestingly, the Court reviewed the examined.” Cham ing closely interests be failure the child to as a Mississippi, supra. bers v. While it is true violation of the defendant’s of con- legislature the action of the in enact frontation also in the nature insuffi- but videotape statute was an effort to Dispensing cient evidence. latter legitimate end, protection a achieve consideration, obviously which is irrelevant witnesses, equally child victims as it is true concern, noted our legitimate a end in and. of itself can that: acceptable be an motive for diminish never girl was nervous and excited little rights. If such basis ing constitutional a upon reason was relied as a this principle to be condoned then were witness, offering a the State not her as rule be subservient constitutional would unusually though was an smart she legislature. of the the will do not it is suffi- child. believe that We Madison, Marbury v. 5 1 U.S. Since cient the facts stated to defeat the under (1803) authority 2 L.Ed. 60 Cranch accused to be confronted legislation in its of the courts to review Vasquez him. dictates is axio- relation to constitutional Id. at 1032. However, area that this is courts matic. Vasquez, court What condemned understandably exercise are reluctant 38.071, 2, supra, essentially what Art. is § Notwithstanding authority. our con- their supra, accomplish except enacted to — motives in legislature’s cession terms. pervasive more valid, 38.071, 2, supra enacting Art. were § constitutional re- approve principle a basic urges it is the Court to State reasonableness statute on wisdom and videotape view admissibility Courtroom,” 18 St. Myatt, of Children in the 697 P.2d 836 the Needs 13. See: 237 Kan. Journal, (1986). (1985) citing alarming informa- Mary’s statistical L. Note, Ap- Comprehensive "A tion detailed proach Hearsay in Sex Child Statements Parker, Rights Is Child Witnesses: "The (1983); Cases,” Colum.L.Rev. Abuse McAllister, Perpetrator?,” 17 New Court a Protector or Code of "Article of the Texas 38.071 (1982). Eng.L.Rev. 643 Legislative Response to A Criminal Procedure: legislation something Unquestionably specific cases a that will not be com- degree exist to a pelling state interest will See: 12 considered. Tex.Jur.3rd Constitu- necessity a that re- sufficient to create (1981). will con- tional Law What be quires a of a defendant’s diminution legislation sidered is whether is viola- But, necessity must of confrontation. any tive of federal or constitutional state practiced equivalent a witness’ provision. question There is no that at unavailability. In such a case Sixth leg- and under times certain circumstances I, Amendment and Art. Texas islation that intrudes fundamental could But a statute Constitution bend. rights acceptable. Mattox v. United particular that is not individualized to a States, supra. legislation limit When does on prosecution opera- its face and acts these fundamental such can be partic- tion assumes that confrontation in only by justified compelling state inter- produce unneces- ular class of cases will Wade, 410 est. Roe v. U.S. constitutionally sary trauma unac- Further, ceptable. statute that a fundamen- encroaches Superior In Newspaper Co. v. Globe right, compelling if a tal even there is state Court, 596, 2613, 102 457 U.S. S.Ct. 73 it, supporting narrowly be interest “must (1982) Supreme re- L.Ed.2d 248 the Court express only legitimate drawn the state propriety the of a viewed constitutional 156, at 93 at interests at stake.” Id. S.Ct. required, Massachusetts statute that “un- circumstances, [emphasis der all added] Tucker, 479, In 81 Shelton 364 U.S. press general pub- the exclusion of the 247, (1960) Supreme 231 the S.Ct. L.Ed.2d during testimony lic of minor a victim an Arkan- Court declared unconstitutional 602, at in a sex-offense trial.” Id. [sic] required sas statute that all school teach- claimed, at 2617. Massachusetts sim- ers, employment, a condition to annu- present argument ilar to in the the State’s ally every orga- file a sworn case, statement designed that the law was to facilitate belonged involving nization the teacher or contribut- reporting of sexual offenses complainant preceding years. protect ed to the minor over five Sim- minors and psychological at trial.” from “undue harm conceding legitimate ilar to interest our According 102 S.Ct. at 2616. case, Id. legislature of the in the Court, when a constitutional a has a Court conceded that state by legislation, being adversely affected legitimate investigating cоm- interest jury e.g., public's of the access However, petence and fitness of teachers. Amendment, then “it under the First trials according to Court this statute went that the denial is necessitat- must be shown Accordingly, it too far. stated: interest, compelling governmental a ed though governmental purpose [E]ven narrowly tailored to serve that inter- substantial, legitimate pur- be at 2620. The Id. at 102 S.Ct. est.” pose pursued by be means that cannot herein, agreed, protect- as we do Court personal broadly stifle fundamental liber- assault from ing a minor sexual victim narrowly more ties the end can be when compelling inter- is a state undue trauma legislative achieved. The breadth However, the identified the de- est. light abridgment must be viewed by stating: ficiency in the statute achieving the drastic means for less is, it compelling as that interest But as Id., U.S. at purpose. same basic mandatory closure justify a does 81 S.Ct. at 252. rule, is clear that the circumstances for it Legitimate legislative will not sur- action case affect particular interest, if it utilizes a scrutiny A trial court significance vive constitutional case-by-case in its unnecessarily ‍‌​‌‌‌​​​‌‌‌​​‌‌‌​‌​‌‌​​‌​‌​​​‌​​​​‌​‌‌​​​‌​​‌​​​‍broad on a basis means that determine can protect necessary to rights. Griswold closure is invasion of fundamental whether Id. Connecticut, of the minor victim. 85 S.Ct. the welfare at 2620-21. L.Ed.2d (Tex.Cr. Allen v. 700 S.W.2d 924 the victim and merely were interested in App.1985)was concerned with whether the effectively prosecuting appellant. rape (§ 22.065, Code), shield laws Penal Two, prosecutors were convinced that necessary and their limitation on cross-ex the child would suffer no undue trauma amination violated a defendant’s from her testimony and she could opinion by Presiding confrontation. an Or, effectively. three, possible it is Judge rejected Onion the Court the defend they appellant wanted to ensure the had appeal by pertinently stating: ant’s the opportunity question the witness. purports prohibit Thus a statute that Irrespective concern, possibly lack completely the introduction of vic- thereof, purpose of the statute was not activity per- tim’s consensual sexual achieved except to admitting the extent of sons other than the defendant is uncon- videotape. given judicial gloss stitutional unless Even when the effect of confronta requiring hearing jury’s out of the tion on a child can accurately predicted be presence defendant, upon so that the mo- extent child could be classed as tion, may given be unavailable,15 necessary it is still that the process requires demonstrate that due recorded carry necessary in- the admission of such evidence because And, reliability. dicia of this can probative value the context of that by giving opportu achieved accused particular [emphasis case out- added] nity for Irrespective cross-examination.16 weighs prejudicial prose- effect on the victim, age of the of a without at least the cutrix. Id. at 932. opportunity for cross-examination the relia makes these cases instructive to the What bility finding process of the truth must be present recognition by issue is the questioned. Roberts, supra. v. Ohio judged each Courts that case had to be on merits, predicates support its own the statute The State also otherwise would its 38.071, supra upon be unconstitutional. Art. the United States Supreme Court decision in deficiency This is the constitutional California Green, supra. Supreme Green 38.071, plagues supra. simply Art. It is basically application considered the support too in its reach to the in- broad of the Confrontation Clause of Sixth fringement that if it endorses and a reason- admissibility prior Amendment to the proce- able alternative and lesser intrusive proffered inconsistent statements as sub- satisfactorily dure is available would stantive evidence under a section of the accomplish legislative purpose then the Green, California Evidence Code. the de- offending statute must in that be viewed fendant, supplying was convicted of mari- Jackson, light. United States v. preliminary huana to a minor. At a hear- ing the minor identified the defendant as necessity approaching each case trial, however, supplier. his At the child considering cautiously and the effect of evasive, particularly claiming witness was testifying in case on victim each rather gave him the he could not remember who readily apparent than all cases as a clаss is marihuana he was under the influ- because Although videotaped case. in- this drugs ence of at the time. M_P_was played terview of objection, the trial Over the defendant’s jury the elected to call the child to prior court, admitted the witness’ inconsist- presence court testify open in the Supreme statements. The California things immediately ent accused. Three come conviction Court reversed the defendant’s reviewing to mind the State’s action. when admitting prior inconsistent One, concern for prosecutors had no because (1979); just attorney rep- Jemigan the accused or S.W.2d 681 victim and 15. See: 39.12, resenting case; therefore, the issue in this Art. V.A.C.C.P. the accused express we no in this opportunity such for cross-examina- 16. Whether regard. requires physical presence of both the child tion admitting testimony given pre- his at the defendant’s statement violated the liminary hearing of cross-ex- confrontation. United States —the Court, however, affirmed the conviction provides sub- amination then afforded finding no Amendment Sixth violations compliance purposes stantial be- admissibility prior inconsistent as requirement, hind confrontation statement. inability give long as the declarant’s testimony way in no the fault of live claims the issue The State the State. principally case and that Green are as: They question same. summarize ... As in the case where the witness “given subsequent opportunity con- unproducible, physically State here by Art. front the witness authorized [as every its has made effort to introduce 38.071, 2(b)], any confrontation whether through testimony evidence live words, problem In other at all. exists witness; trial, produced Porter at opportunity of the State claims that the witness, swore him tendered nulli- call the child defendant to him for cross-examination. Whether question fies the confrontation. in a manner Porter then testified consist- significant The vital and difference be- preliminary or with his ent inconsistent and the content tween facts Green hearing testimony, claimed a loss of supra, is: the defend- Art. memory, privilege against his claimed to cross- ant in had the Green simply compulsory self-incrimination prelimi- the minor examine witness at answer, nothing in refused to the Con- contemporaneous with his nary hearing or prohibited frontation Clause the State The Court observed: statement. testimony relying prior his from also on preliminary also that Porter’s We think prove case Green. hearing as far was admissible (opportunity in Green What was wholly as the constitution is concerned when statement was for cross-examination question re- apart from the of whether made) 38.071, 2, supra and in Art. absent § opportunity an spondent had effective significant contrasting fea- is their most subsequent for confrontation at the trial. 38.071, ex supra the ture. Under Art. prelimi- at the For Porter’s statement (albeit videotaped) parte statement nary hearing already given had un- been be- expressly without the defendant taken closely approximating der circumstances Whereas, in present represented. or typical those that surround trial. contemporane- for Green oath; respondent was under Porter oc- was extant and ous cross-examination represented by same coun- counsel—the curred. represented later him at sel fact who trial; opportu- respondent every . had VII. Porter as to his

nity cross-examine statement; proceedings and the were 2, supra is also viola- Art. 38.071 § tribunal, judicial conducted before a Four process clause of the of the due tive judicial provide a record equipped to and the due course Amendment teenth hearings. I, the Texas in Art. 19 of provisions § law Historically, due course Constitution.17 I of the Texas in Art. of law clause § respondent’s case ... equated and deemed has been Constitution have appear not been counsel does pro guarantee due with the synonymous way in the any significantly limited Amendment. the Fourteenth cess under of his cross-examination scope nature 139, 175 McDonald, S.W. 107Tex. Mabee preliminary at the witness Porter however, (1915). As as recent was oth- hearing. Porter had died or If com Supreme Court United States unavailable, the Confrontation erwise I, “is differ- supra, Art. by mented that § been violated not have Clause would process. ter as due to hereaf- law will be referred 17. Due course of from, arguably significantly guidelines ent broad- continues with ..City Mesquite Aladdin’s particular er than determining proce- whether a Inc., Castle, 283, 293, 455 U.S. dure fairness and is diminishes thus viola- 1070, 1077, (1982), the com- process. tive of due The court commented: parable Fourteenth Amendment. Such left no doubt But this Court has necessary distinction expansive is not probability of deleterious effects on fun- opinion. necessary What is and what rights scrutiny damental calls for close keep in one must mind is that must do ... Courts omitted] [citations depriva- guaranteed protected from to be they likely can to evaluate the best life, proper- liberty, are identical: tion particular procedure, effects of a based ty. reason, principle, on and common human sim- process Due does not lend itself to Id. experience. ple, definitions. In its most basic concise prosecution, Consequently, in a criminal process impediment is the sense due pro- viewing legislatively when authorized constitutionally imposed governmental on cedures that could detrimental to one’s that offends our fundamental conduct i.e., rights, “a fair trial in a fundamental rights. protection of one’s Relative to the Murchison, ...,” In Re su- fair tribunal guarantee of the liberty: essential “[t]he pra, legislation closely scruti- must be government process is that the due clauses Williams, supra. nized. Estelle v. Such imprison physically or otherwise reason, on an examination must be “based person except in accordance with restrain a principle, experience.” human and common al., Treatise Rotunda, procedures.” et fair Id. Law: on Constitutional Substance supra, 38.071, Scrutinizing Art. § Paul, (West Publishing Co.: St. Procedure applying predicates of consideration Minn., 17.4, 1986), p. In other Williams, Id., it is suggested in Estelle v. words, essentially process is in itself due that on its face Art. evident least, Or, very fairness. at the the same as a constitution- imposes upon the defendant used to arrive at process due is the vehicle The courts of ally unacceptable burden. thereby protecting our fundamen- fairness country have never had to this state and rights. Accordingly, “a fair trial in a tal procedure that a trial confront and review requirement of due is a fair tribunal basic as a witness the defendant to call requires Murchison, process.” In Re question if he wants his accuser (1965) 136. If 99 L.Ed. Doing places the defendant so witness. of a legislation alters the essential fairness complain- Catch-22: call proverbial process violation is neces- trial then a due witness; question the or able to ant and be Williams, In Estelle v. sarily implicated. thereby alternatively, do so and decline to 48 L.Ed.2d 126 425 U.S. to cross-examine waive (1975) specifically stated it was “[t]he way the defendant Either witness. liberty fair trial is a fundamental right to a undue disadvan- a distinct and at placed Amendment.” by the Fourteenth secured placed Conversely, prosecution tage. Then, emphasizing the Id. at 1692. after substantially advanta- unique and in the presumption innocence superior role the being able to essence system, geous position justice

plays in our criminal evidence, the de- wait for then court continued: thereby complainant, call the to fendant presumption inno- implement the To [of videotaped repeat the to allowing the State factors cence], must be alert to courts Or, calling the witness by not statement. the fairness may undermine videotape statement. controvert fail fact-finding process. In the administra- continually remembered be It must must care- justice, courts of criminal tion reprehen- socially morally and despite princi- of the guard against dilution fully type of offense of this nature sible to be established ple guilt to be presumed must still be defendant beyond reason- probative evidence and com- principle, “[R]eason, innocent. Id. at able doubt. Id., charges experience,” mon dictate that a of unseen and unknown—and human Id., respond negatively unchallengeable hence jury will to defendant —individuals. 540,106 testify 476 U.S. at S.Ct. at 2062. compelling a child witness to after already videotape they have seen the of the 2, supra Under Art. 38.071 the essen- allegations. possible, child’s if not witness, complainant, tial state’s will be probable, jury reaction of the a trial process and the confrontation what due unduly incident of this nature would be prevent: clause “unseen” and endeavor to prejudicial Prejudice, to the defendant.18 Unless, “unchallengeable” witnesses. Id. extent, to this will create a risk that step of course the defendant takes thе proceedings fundamentally un- entire were calling testify prosecution the essential fair. A risk of this nature does not com- testify. witnesses to Nowhere and at no port concept process. with the of due Anglo-American jurisprudence time in has Illinois, required 106 an to call as a Lee v. 476 U.S. accused ever been (1986) enjoy in order the Su- witness the accuser preme right due Court was concerned with both fundamental of cross-examination. is, process supra. an That Art. 38.071 It is and confrontation violations until illogical infringement upon right of confronta- as well as unconstitutional who, defendant, non-testifying place again, scheme tion when a co-defendant’s innocent, presumed admitted and must in the unten- confession was into evidence position requiring either the child to considered as substantive evidence able very guilt. Noting initially thereby the his- run the real risk defendant’s forgo unanimity incurring jury the wrath of the torical court its commit- “ greatest legal right ment to the defendant’s of confronta- to invoke ‘the cross-examination, discovery engine tion and rec- for the ever invented ” truth,’ Green, ognized overlapping process supra,— issue due California when it observed that the of confron- cross-examination. “ tation and cross-examination ‘is an essen- pub It must also be noted that the requirement tial and fundamental for the response lic’s to the unfortunate victims of country’s kind of is this fair trial which has and continues sexual child abuse been ” goal.’ Id., constitutional great.19 protective attitude of to be 106 S.Ct. at 2062. legislatures and the courts to child vic pertinently The Court continues and public policy that tims is indicative of a states: quite heavily in favor understandably leans level, long empa as the one to confront and of the child victims.20 So

On thy plight of the child victim re cross-examine adverse contrib- for the witnesses system the confines of constitutional utes to the establishment of a of mains within perception ly protected rights then the attitude justice criminal in which the ap resulting laudable and reality prevails. actions are both as well as the of fairness unfair, however, patently It is system, propriate. To foster such a Constitution sense, process practical and due safeguards promote in both a provides certain public require a defendant to offend greatest possible degree society’s to the compel a child victim to policy and having in the accused and the interest court, or, before, effectively, open as engage open in an and con- in accuser even It is a viola cross-examination. public in a trial. The Confrontation abandon test statutorily impose process to ensuring of due goals by tion advances these Clause necessity of person the upon an accused on the that convictions will not based Background Graham, Buckley, Reliability "Introduction: and 20.See: 18. See: "Indicia Emerging Abuse: Law Re- of Child Sexual Issues in and Review Face to Face Confrontation: Mid-1980’s,” Prosecutions,” L.Rev. 5 40 U.Miami 40 U.Miami in the Child Sexual Abuse forms Note, (1986). (1985); Testimony Victims of Child “The L.Rev. 19 Legislative In- Two Sex Abuse Prosecutions: in novations,” Harv.L.Rev. See: fn. 13. electing violating public in- policy between ster their version of the facts unconstitu demanding system terests and tionally constitutional alters the to the extent that right. To perception do otherwise constitute a would both “the as well reality as the “ ...,” noticeable intrusion our concept exchanged ‘of of Id. fairness are for the ” goal,’ integral a fair which is this country’s advantage duplication Illinois, supra, generate process Lee v. and would evidence. Due not will condone “ as to the integrity doubt ‘ultimate such a monumental abuse. ” Roberts, finding process.’ fact Ohio v. contrary This is to the decisions supra. courts in other states reached have under

Authorizing procedure remotely That, a trial seem- similar circumstances. ingly however, purpose itself defeats the the significant: is what is the circum- statute, 2, supra just Art. 38.071 does autho- stances were similar and not identical. § testify, rize the videotape State to call the child to Arkansas and The statute the which, noted, previously regard- as oc- Supreme was what Arkansas Court’s decision present curred in instructively support- the case. This and the are that statute cross-examination, according defendant’s opinion. According ive of our to Ark.Stat. State, problem (Supp.1985), summary, satisfies the the because Ann. 43-2036 get defendant videotape deposition did face-to-face confronta- of a child under the persuasive age years tion. Such contention is until by of seventeen be ordered procedur- response one takes notice of the collateral trial court to a motion consequences state, ...,” “good Id., provided al of such action. cause is opposing and shown counsel notified. stated, case, As in the Further, deposition is to be taken “be- complainant testify as a State called the judge presence in the fore chambers However, testimony rebuttal witness. her prosecuting attorney, defendant simply videotape repetitious of her attorneys.” and his Id. and, appellant’s attorney statement among Noting, things, that other their objection, actually reb observed in his “requires statute face-to-face confrontation And, unquestiona uttal.21 as such it was victim, the defendant and his between bly bolstering unimpeached of an witness. taken, attorney deposition the time State, (Tex.Cr.App.1978); 576 S.W.2d 83 Pless provides for cross-ex State, Hulin v. 438 S.W.2d Cf . defendant,” the victim amination of So, appel (Tex.Cr.App.1969). before the (Ark. 706 S.W.2d McGuire child the lant was able to cross-examine the 1986), Supreme Arkansas under parte, into evidence the ex State introduced standably videotape declared that state’s recorded, sterile, testimony unencumbered constitutional. statute (videotape) later complainant simply live that was a reiteration Court of South Carolina videotape that were detailed their statute incidents also ruled that process However, videotape Due does not the South Car- session. constitutional. reviewed, accept they Ann. legislative bodies alter olina statute S.C.Code authorize 16-3-1530(6) (1985), was restricted to procedures to the extent that ed trial witnesses, i.e., special specific cases and prosecution enjoy such a benefit at can children, peo- elderly handicapped just, quite It expense of the defendant. permits ple. requires a motion and court order. simply, procedure It unfair. Further, present at the defendant must be prosecution to in essence introduce twice, thereby deposition, but out of the victim’s vi- bol their case-in-chief justice. testimony with administration 21. In this not nec- ble consistent rebuttal does state against newly essarily purely elicit- same said for have to be directed can be Id. Whether But, Lackey 439 ed (Tex.Cr.App.1982). v. 638 S.W.2d evidence. the ad- repetitious evidence is doubtful. Allowing evidence to new missibility purely repetitious evidence is not of (after opposing rebuttal be introduced as party State, 482 S.W. error. Douthit v. fundamental evidence) presentation of has in its rested (Tex.Cr.App.1972). 2d 155 permissi- discretionary court and is is with the 323 sion, permitted separation powers of it and cross-examination is doctrine attorney contemporaneous legislatively usurped defendant’s the trial court’s re- Cooper, sponsibility State v. determining competency the statement. 353 with Kentucky, (S.C.1987). v. Gaines 451 of witness. 728 S.W. S.E.2d (Ky.Sup.Ct.1987). 2d 525 Sheppard, v. N.J.Super. State In 197 411, (1984), grant- 484 A.2d 1330 the court VII. permission ed the State’s motion for previous Based on our observations and videotape testimony prior a child witness’ stated, for the reasons authorities and we the trial. In their excellent n 2, supra 38.071, find that Art. is both § Superior cases from other Court reviewed facially applied appel- and as it was they emphasized states and that the means deprivation of his lant an unconstitutional de- authorizing required that “the were right of confrontation under the Sixth and judge, jury, as well as and fendant Fourteenth Amendments to the United spectators, her will see and hear [trial] States Constitution. And, Id. at 1343. clearly.” child] [the “[a]dequate opportunity significantly, most addition, independent In of the above provided.” for cross-examination will 38.071, finding, find that Art. we further Id. 2, supra facially is both and as was § applied appellant to this an unconstitutional found in State are Similar court decisions deprivation guaranteed right his state Vigil, 103 N.M. (1985); v. 711 P.2d 28 I,Art. 10 of the Tex- confrontation under § Johnson, People 100 Ill.App.3d as Constitution.22 (Ill.App. Ill.Dec. 5 Dist. N.E.2d Melendez, 1986); 135 Ariz. 38.071, We further find that Art. § 661 P.2d 654 supra is violative of the due process clause In Amendment. addi- Fourteenth any no We have discovered case from tion, finding independent of our jurisdiction exactly point. is is process guarantee the federal due of- comparable most to Art. 38.071 statutes 2, supra 38.071, by Art. we find fended § 2, supra are Ken those in Louisiana and § 38.071, 2, supra Art. violates the § tucky. procedural Because of defects Lou I, guarantee law of Art. due course of § yet isiana courts have to confront the con (1876).23 Texas Constitution see: State v. Gui directly, frontation issue droz, (La.Ct.App. 498 So.2d 108 Cir. 5th legislative produced activity that R.C., Jr., 1986); State v. Interest was, supra, 38.071, recog- have Art. as we Cir.1986). 2nd (La.Ct.App. So.2d nized, However, when the well intended. legislature imposes on an ac- barriers Very Kentucky Supreme recently, rights it should do so cused’s constitutional Court, however, declared their identical narrowly great caution and only unconstitutional. The basis for statute protection of child concern. the instance that it con- their decision was not violated essentially aimed at the effort is statutes frontation —that was not discussed. K.R.S. reconciling innocence opposites: be- 421.350 was declared unconstitutional age. Al- by experience of youth stained permitted the of a child cause it it is impossible task one compe- though it not an ‍‌​‌‌‌​​​‌‌‌​​‌‌‌​‌​‌‌​​‌​‌​​​‌​​​​‌​‌‌​​​‌​​‌​​​‍not declared who had been by the concerns we require difficult judge not that made tent the trial and did rights of This, for the by necessity have oath. accord- must that the child take the crimes, matter how no court, people accused of a violation constituted Further, in our any that were cited supra, federal cases § Our decision that Art. 22. I, used analysis 10 and Art. were unconstitutional under both Art. I, state constitution (1876) is made guidance, 19 of the Texas Constitution purpose and do them- for the statute, thorough analysis of after a applicable has the Court compel the result that selves provisions, avail- constitutional reached. independent law. It also made able case our provisions analysis comparable constitutional fn. 23. See Amendments). (Sixth and Fourteenth repulsive vile and alleged offense. than call the willing complain- available and This area of the by ing law is dominated emo- testify against to appellant witness dur- tion, light which is in chief, understandable of the ing in prosecutor, his case over society protect interests wants objection, pursuant provisions but —abused irrespective children. But 38.071, interеsts V.A.C.C.P., Art. chose to substitute protected greater to be concern should pretrial in her stead the record of the video- be the adherence to our constitutional tape interview that had by been conducted rights. We permit cannot ever emotion- Rape assistant director of the Dallas charged issues to erode our fundamental complainant, Crisis Center of the who was produce liberties. To do so would emotion- not an officer of the court. Neither the ally pragmatic deviations from established appellant nor attorney his were standards and inevitably that will and ulti- Indeed, place. when interview took mately in complete result erosion of those applicable provisions of Art. society. that make us a free supra, they present. could not then be Thus, appellant given opportu- was not Accordingly, Appeals the Court of is af- nity complainant to cross-examine the dur- firmed and the cause remanded to the trial session, pretrial interview nor was court. given opportunity he to cross-examine complainant during the State’s case in TEAGUE, concurring. Judge, Unquestionably, chief. had the record of pretrial videotape ex- interview been commentators, Contrary many to what during cluded from evidence the State’s jus- judges and appellate court trial chief, prosecutor case in had scholars, professors, tices, school legal law complaining testify called witness to defendants, attorneys, defense prosecutors, during time, it is clear from this record etc., might victims, groups, special interest appel- that after the State rested its case believe, this Court issue that is before have the learned least, lant would moved for and is, not one of principle in to resolve judge granted trial would have his motion Judge Dun- I impression. believe first guilty. If for an instructed verdict of not opinion, has can, majority the author of occurred, Judge Mc- this had the issue that gargan- in his point this out attempted to However, poses perhaps then Cormick would the Court. effort for tuan present for this Court to resolve. dissenting by Judge McCormick’s seen in his hercu- probably failed opinion, he has Thus, occurred after the what have is that the matter The truth of lean effort. State rested its case chief irrelevant adopt emperor, urging this Court and immaterial to the issue that before Judge suggests comes to what McCormick decide, simple, is rather name- us to which wearing garb. only us a different form of ly, appellant denied his to con- her front his accuser and cross-examine appreciate Judge To majority Duncan’s chief, presented its case when State Court, for the I believe that one or, put way, it another must focus his attention on the State’s case place in the entitled to substitute Forget chief. Reader: happened what videotape complaining pretrial beyond point. her, appellant never when interview pretrial cross-ex- given pages Judge points Duncan out on the historical amine her. Given majority opinion for the and 305 of his cross-examination, and confrontation and procedure that was followed Court the decisions, ques- these the answers to court thereon, As reflected when in this cause. normally to a tions should be obvious even presented its case in chief the State intelligent year old child. ten witness, complaining al- appellant, question that must be an- willing testify real though then available following: is the in this cause against appellant, was not called swered case in presenting against him. Rather prosecutor Whether examining the trial. against to sented counsel at appellant, chief was entitled sub- Supreme reflects parte pretrial opinion by the Court hearsay stitute the above ex The person- did not complaining although of the defendant videotape the wit- that interview complaining place complaining ally in of wit- cross-examine the ness the the presence, apparently he tried to cross-examine some physical ness’ she was then when The case willing testify and to the State of the other State’s witnesses. available for time, Jury to and the testify bound the Grand but was not called at that was over robbing attorney indicted for appellant and his had defendant was later neither nor in given complainant. presenting In case opportunity the to cross-exam- the bеen defendant, pretrial did complainant State ine the when the inter- chief complainant, who had place? not seek to have the view took Texas California after the from moved ques- posed answer to I find that the but, occurred, instead, testify offense had principles of law is controlled tion examining upon the witness’ trial relied Texas, v. Pointer in announced testimony. Code of Art. 750 of (1965), 13 L.Ed.2d 923 controlled, Procedure, Criminal which then Green, v. U.S. V.A.C.C.P., provided: California see now Art. Judge S.Ct. deposition of taken “The a witness before Supreme suggestion that the McCormick’s examining jury inquest, of an court or in Kentucky v. Stinc- recently held Court writing, certified ac- and reduced to — er, U.S.-, 96 L.Ed. law, cording to where the defend- cases (1987), contrary sorely is 2d 631 present such ant was when misleading. taken, him privilege afforded and had witness, cross-examining may be Stincer, ag- an supra, Kentucky In provided read in evidence [Art. majority of Su- gressive and assertive C.C.P., provided part that same which merely preme held that the exclusion Court if had removed the witness was admissible defendant, counsel, of the but not his from a beyond the limits himself State] competency hearing depositions.” held to determine reading in evidence not of two child witnesses was violative of This Court was convicted. The defendant conviction, this affirming federal of confronta- the defendant’s affirmed. In However, had proper predicate testified tion. two witnesses Court held that admissibility during prosecution’s case in chief and established for the been prerequisites had only as all of the “deposition”, not had the the defendant testimony of the Through met. fully completely been cross-examine but did course, sister, established complainant’s the State the witnesses at time. Of permanently had Supreme the witness not majority whether the above California, he was at the time hold that a defen- moved will the future Court California physically trial may be excluded from the courtroom dant at trial. conducted, unavailable to being thus trial is and he while his no obtain apparently made effort guilty that warrants not of such misconduct trial, presence for the physical removal, the witness’ remains to seen. his upon entirely rely opting instead rejeсted the de- This above statute. Court I will first address this Court’s decision he was that because fendant’s contention State, Pointer (Tex. 375 S.W.2d 293 at the exam- represented by counsel Cr.App.1964), which was decided when this trial, “deposition” was inadmissi- ining Court upon was looked many much like contention, rejecting ble evidence. us look defendant simply held the Court today pity. United States —with appointment counsel not entitled examining and further held examining supra, an at an In Pointer v. stage critical examining trial not a held in that cause. trial was Interestingly, there proceeding. repre- was not that the defendant reflects single opinion permitted rely not a word in the transcript unanimous to the from by right this Court the the defend- about of preliminary hearing the that had held been ant to confront or the cause, cross-examine com- in that as substantive evidence dur- plaining during examining the witness trial. ing its case in chief to establish the defend- ant’s guilt. transcript The was admissible Supreme States, Court the United pursuant pro- to a California statute which Texas, supra, granted Pointer v. certio- vided that “evidence of a statement made rari in order the to decide whether Four- by a by witness is not made inadmissible guarantee teenth Amendment’s of a de- the hearsay rule if the statement is incon- right fendant’s “to be confronted with the hearing sistent with his at the against applicable to witness him” was the 770”, and is in compliance offered with by States virtue of the Fourteenth Amend- § required which merely ment, that the witness be question and the answered the given explain deny Previously, Supreme opportunity an to the affirmative. the prior point during purposes Court had that for statement at some ruled right guaran- trial. preliminary hearing, Sixth Amendment that At the the de- Supreme represented teed to federal defendants. The by fendant was and counsel Court also held under that the circumstanc- subject the witness was to com- full and case, es of the use of complaining plete by cross-examination counsel. examining transcript witness’ to con- Supreme California the con- Court reversed rights guar- vict the denied him defendant viction, holding 770 that was unconstitu- by anteed the Sixth Fourteenth and tional as permitted insofar the substan- Amendments to the Federal Constitution: prior tive inconsistent use statements today “We hold the Sixth Amend- defendant, a even witness convict right .ment’s of an accused to confront the though subject the statements were against right witnesses him is like [the prior hearing. at cross-examination counsel, right which a fundamental and is] The Supreme Court of the United States obligatory is made on States the' reversed. right Fourteenth and the ... Amendment^] reversing Supreme In the California in the cross-examination included decision, Supreme held Court’s Court of an accused in a criminal case to confront a the issue before it was whether him against witnesses and to de- ... con- defendant’s constitutional “to be prive an accused of the to cross-exam- against him” fronted with witnesses ine the witnesses him is a denial of necessarily a deci- inconsistent with State’s guarantee the Fourteenth Amendment’s change hearsay sion its rules of evidence process of at due law ...” U.S. permit prior use in- the substantive Supreme passing, at 1068. In S.Ct. the de- consistent statements to convict case us Court observed: “The before would theory usual dan- fendant on complain- a quite different one had [the gers hearsay largely nonexistent are a statement been taken at full- ant’s] trial, testifies at where the witness fledged hearing petitioner at which had In question negative. in the answered the represented by counsel had been been who pointed out holding, Supreme so Court given complete adequate opportunity good that “there reason conclude to cross-examine 380 U.S. [the witness].” is not violated the Confrontation Clause relatively at 1069-1070. In a S.Ct. state- admitting out-of-court a declarant’s time, years period short little over ments, long testifying as the declarant is later, Supreme presented Court was subject to and effec- as a full just such a case. (My emphasis.) tive cross-examination.” Green, 719, 88 California at 1935. at U.S. (1968), in Thus, merely held chief, due to the presentation of its case statute, Green, supra, that the California “star” witness had fact that the State’s on supra, was not unconstitutional uncoopera- “markedly evasive and become stand”, It also held that the Confronta- prosecution its face. on the tive during case in chief duce into evidence of the Sixth Amendment to tion Clause preclude parte hearsay did not ex out-of-court statement Federal Constitution witness, pretrial of the witness’ out-of-court on introduction recorded of a that was declaration, prelimi- which came from videotape, appellant which hearing, had taken under nary which been given to be subject- had been oath at which witness witness, and the witness cross-examine cross-examination, complete ed to full and willing against testify and to was available prove of the matters to the truth asserted in during case the defendant the State’s in passim Supreme therein. The chief. the fact that the declarant was referred to much is focused I find that too attention as a witness at the de- not available complaining fact that the witness trial, actually to fendant’s he was called trial, at and testified as a rebuttal witness testify testify prosecution and did for the given to too little attention is what chief, though its in even testi- in case when during admitted into evidence the State’s “markedly fying evasive and un- he was Judge in dis- case chief. See McCormick’s prosecutor cooperative on the stand.” The senting opinion. transcript preliminary from used the hearing memory, to “refresh” witness’ beyond a proof It is that now axiomatic apparently impeachment pur- for and among is the essentials reasonable doubt Thus, inability una- poses. there was no process “The due and due course law. vailability exception present of the witness charge requirement guilt of a criminal that in that case. reason- by proof beyond a be established early cause, from urging in this in that able doubt dates at least our case, this years under the circumstances of ... unless there as a Nation [and] 38.071, provisions of su- applicable Article any remains doubt about the constitutional valid, pra, facially constitutionally are has standard, stature of the reasonable-doubt obviously selectively pluck cer- chosen to that Supreme explicitly we hold Court] [the language from tain out of context ac- protects the Califor- the Due Process Clause Green, supra, nia support position. to except upon proof against cused conviction well to read and re-read The State would do every fact beyond doubt of a reasonable in initial what Justice Harlan stated the crime with necessary to constitute concurring opinion that paragraph Winship, In re charged.” which he is case, might in that he filed in that order it 362, 366, U.S. S.Ct. what the Court actu- understand Thus, L.Ed.2d 368 Green, supra: precise in ally decided “The prosecution all should clear to that be holding today the Court the Con- to proof in this instance had burden Clause of the Amendment frontation Sixth chief, establish, during if it could its case preclude the of an does not introduction charg- elements of the all of the essential declaration, taken under oath out-of-court doubt. beyond reasonable instrument cross-examination, subject to to and instance, prove the in order to In this truth of the matters asserted prove the case during its guilt appellant, the State therein, as the declarant available when objec- into in chief introduced evidence over at at trial.” a witness parte hearsay vid- tion the ex out-of-court emphasis.) (My be- eotape that had occurred interview encompass or at Bar does not case complaining witness and another tween the where the accused implicate the situation During case lay person. the State’s given opportunity his were counsel willing tes- chief, although available and present the com- and cross-examine complainant was appellant, tify pretrial, which occurred plaining witness against appellant. not called Green, supra. The issue California legislation or Legislature May enact provi- applicable here concerns whether the a rule evidence Court enact 38.071, supra, up- should be of Art. sions complaining wit- actually eliminates a to intro- permit the State held order testifying ness physically during from general is under the authority cedure chief, case in State’s when witness is supervision of the trial court. testify, willing available and substi- here, supra, applicable Article tute in place parte her ex out-of-court provides, however, expressly neither hearsay production television mаde on attorney the accused nor his have magnetic tape of the witness another present recording to be when the person given at which the is not defendant made, oral statement of the child-witness to be and cross-ex- and thus has no cross-examine amine the witness? one Only if chooses to child at that time. Nor must the adopt way that criminal trials are con- Thus, child be sworn before the interview. parts ducted some of this world can the poten- the child-witness need not even fear question be answered in affirmative. punishment lying. tial appli- Under the argument The conceivably valid I statute, provisions cable the trial support find that can be made to enact- may implicated court not even in be 38.071, ment of Art. supra, also see Tex. tape recorded interview session. The trial Crim.R.Evid., 801(e)(1)(D), Rule and in turn certainly implicated court was not in this admissibility of the out-of-court hear- videotape recording when the cause was say interview, tape parte video ex video person interviewing The the child- made. tape deposition you please, if as substan- may not even be an officer of the tive evidence in the case in chief State’s is court, may and qualified not even be to “exceptional where exist circumstances” potential conduct such an interview of a in the justice necessary and interest of is instance, In I child witness. this do not preserve testimony away take and to from person find that who conducted the presence courtroom without the of ei- witness, interview with the child who at attorney. the accused and In ther his time was not an officer of the trial instance, however, the State has not court, qualified to conduct such an any “exceptional presented circumstances” short, with a child In interview witness. might that” have authorized admission practical statute the Texas mandates no tape into evidence of the under the video accuracy for the concern of the truth-deter- above rule of law. process mining by assuring that the trier of I find that not even the Federal Rules of satisfactory have a for eval- fact will basis permit Evidence would the introduction uating prior the truth of the statement during into evidence the Government’s case deter- consistent both accurate truth videotape recording in chief of the that was practical for mination considerations evidence, objection, into admitted over at justice. Further- administration 3503(a), appellant’s trial. See 18 U.S.C. § more, it is difficult for me to understand permits which into evidence admission how, surrounding, parte in an ex such during the Government’s case chief of can ever be a fair statement substitute taped depositions, provided that “ex- video testimony on the live witness stand. ceptional circumstances” exist. Also see short, parte deposition” kind of “ex compare 804(b), Rule Texas Rules of sorely lacking in the ambi- taken here Evidence. the federal stat- Criminal Under solemnity closely approximating ance ute, however, before such an out-of-court Evans, Dutton v. U.S. trial. See videotaped recorded statement is admissi- 210, 220, (1970); 27 L.Ed.2d 213 91 S.Ct. ble, deponent placed must be under Green, Also see supra. Cf. California subject rigorous cross-examina- oath and Edi- Binder, Hearsay Handbook: Second on all has the tion issues. accused tion right present during deposition to be opines in the dissent- Judge McCormick represented by has the be that he in this ing opinion filed cause: scope is “[I]t counsel. The of the examination statute" trial, i.e., apparent is that no future as would be allowed at full [to me] proce- deponent rigorous allowed to survive absent may subject be cross- will be cross- pro- contemporaneous follows on all issues. The entire dure which examination VII, however, in the judgment to be made time the I concur examination at the tape.” the Court. child is interviewed on Of course premature

Judge in his McCormick is V.A.C.C.P., Art. violates cannot, thought because this Court Due Course Law claus- Due Process and not, advisory opinions. must write es of Federal and Constitutions facially. The when examined failure Judge It to me that what obvious specify when and whom the statute dissenting McCormick overlooks his testimony further child will be called for choice that is the fact to take the initiative forces accused given appellant in this cause consti- witness, person calling as a defense compare tutionally indefensible. See and testimony likely adverse to whose States, v. United Simmons defense, creating thereby his a Hobson’s (1968) (Held, to, choice. This forces the accused in ef- support defendant’s motion fect, his choose between constitutional suppress evidence under Fourth to confrontation versus —the not, Amendment under Fifth call not to witnesses or Amendment, objection be admitted over his own behalf. guilt.) evidence of defendant’s consistently Furthermore, has em- attempted to point as I have phasized clause is out, that confrontation secondary the issue of choice the defendant to cross- designed permit to real that this to de- issue before Court examine the witnesses against him. To cide, which is whether the State use right a to say that a defendant has cross- parte hearsay an ex out-of-court statement implies examine witnesses that willing of an available and to wit- in to must endeavor elicit evidence during its in chief ness case to establish the resorting form direct before guilt beyond defendant’s a reasonable statements, out-of-court, i.e., videotaped to doubt, given and the defendant never duty to examine it should be State’s opportunity to cross-examine the wit- in them the form of direct examination. ness when the statement taken. The process essential rudiments of due and due This notion of confrontation is broader course of law forbid the admission of such not consistent statement, Judge a and majority Duncan’s proce- important caselaw but also an serves correctly holds, opinion holding is so which previously. purpose dural mentioned view, extremely my limited in con- which is question that Certainly, beyond it is trary Judge to what McCormick others prove to each ele- duty is the State might persons simply believe. Those see charged beyond offense rea- ment “bugey many “bugey too bears” when no doubt, beyond question and it is sonable actually bears” exist. presumption enjoys the that an accused 38.071, comments, supra, simply With these few I whole- But Art. innocence. victim, Judge heartedly join majority presence leav- Duncan’s commands the of the opportunity joyous for the Court. ing to accused the stand, calling thеreby victim to the CAMPBELL, Judge, concurring and thwarting public policy behind the stat- dissenting. ute, guaranteeing his ac- and almost [the process. conviction own cused’s] agree majority’s While I with the ulti- case, disposition mate of this I do not be- may say critics that While appellant passive was denied cross-exami- lieve is not a constitutional remain by guaranteed all, such a nation as Federal and to this writer that seems Fifth Clearly, firmly in the State Constitutions. imbedded doctrine fact situation, appellant person shall op- “no was afforded Amendment did, any to be a question compelled criminal case portunity to the victim and against Constitu- fact, himself ...” U.S. question the In the victim. view right of the tion, in the majority Amend. V and position taken in Part compelled give accused to “not be evi- Confrontation in the most basic sense himself, Const., dence requires ...” Texas that witnesses be at trial I,Art. Sec. 10. permitted defendant be opportunity have the to cross-examine observations, join With these I judg- Texas, 400, them. See Pointer v. 380 U.S. ment of the Court. 1065, (1965); 85 S.Ct. 13 L.Ed.2d 923 Mat States, 237, tox v. United McCORMICK, U.S. 5 S.Ct. Judge, dissenting. 337, (1895); 39 L.Ed. 409 Garcia v. When the promul- members this Court (Tex.Cr.App.1948). 210 S.W.2d 574 In oth gated adopted the rules of evidence words, notes, majority er and as the “by 1985, go December of into effect on requiring presence an accuser’s in court September 1, 1986, expressly we included of cross-examination is nec within the statements which are hear- essarily 38.071, attained.” Article Section say in videotape nature the statement made 2, supra, requirement satisfies this by pro a child victim under Article V.A. viding that the child will be available C.C.P. See Tex.R.Crim.Ev.Rule testify. The majority responds that avail 801(e)(1)(D). Today, majority ability enough; is not hearsay Court decides that this same statute is un- nature videotaped statement lacks facially appli- constitutional both and in its crucial reliability.” “indicia of See Cham cation, making any without reference to or 284, Mississippi, bers v. 410 U.S. 93 S.Ct. analyzing the statute in terms of Rule (1973); Nelson v. supra. O’Neil, 402 U.S. majority The crux of the decision is that (1971); Green, L.Ed.2d 222 California a criminal defendant’s federal and state L.Ed.2d constitutional confrontation process due impermissibly infringed by are appear At first blush it does that the a statute in scope too broad which forces a Legislature intended to hear- create new defendant calling co choose between the say exception, and if used of live in lieu inflaming jury waiving child and the or testimony, admittedly such is the nature of Today’s opinionmay cross-examination. be videotaped hearsay the na- statement. The dangling characterized as a carrot held out setting ture of these statements in such a Legislature, enticing them to at- inadmissible, does not render them how- tempt procedure, to fashion a more narrow ever, simple for the reason that the declar- affecting cases, types certain testify ant available to at trial. Where judicial stamp disap- not run afoul of our purposes the declarant is available for proval. by Given the broad brush wielded cross-examination, Court however, majority, apparent it is consistently found United States has no future statute to will be allowed survive admissible, hearsay reasoning evidence procedure contempo- absent a which allows opportunity that the to cross-examine raneous cross-examination to be made at declarant about the content of out tape. the time the child is interviewed on sufficiently court tests the reli- statements concept I opportu- embrace the that the ability Kentucky of those statements. See nity for cross-examination lies as a corner- U.S.-, Stincer, 107 S.Ct. v. stone of the of confrontation and L.Ed.2d-(1987); Chambers v. Missis- confronting it is the for O’Neil, sippi, supra; supra; v. Nelson Cal- adverse witness at trial that is the corner- Green, supra. v. ifornia Ritchie, Pennsylvania stone issue. See v. — U.S.-, A much different situation exists (1987), complaining I case. The tes- and cases cited therein. cannot instant 38.071, tified, videotape played agree supra, interpret- that Article albeit after the 801(e)(1), along jury. supra, Rule ed with the Court’s own rules of for Under evidence, videotaped hearsay. principles either of con- statement is not violates pertinent part: process. That rule reads in frontation due trial, ble, under it was introduced at “Rule 801. as auspices of evidence. of our own rules “(e) hearsay. are not Statements which hearsay A is not if: statement obligation to act This Court has the “(1) by witness. Prior statement substituting super-legislature, our or hear- declarant testifies the trial that of second branch for subject cross-examination have, instead, respon- government. We statement, concerning and the a constitu- sibility construe statutes * * * (D) taken and of- statement parte possible. Ex tional manner where fered in accordance with Article 38.071 Granviel, (Tex.Cr.App. 561 S.W.2d 503 the Texas of Criminal Proce- Code State, 1978); 552 S.W.2d 144 Broyles v. dure, ...” majority If of this (Tex.Cr.App.1977). 38.071, standing alone, due supra, re- Court is concerned with fundamental Article process meeting judi- quires avail- and with only that the child-victim be concerns hearsay savings responsibilities, option if her statement is of a able to cial admitted; provide 38.071, supra, our rules evidence of Article re- construction prior taped simple require admission of the child’s state- mains. It is a matter non-hearsay ments as where child actu- play- the child-declarant before call ally testify. does videotape, preserving thus what the ing the majority views as defendant’s appear adopting clear that in It would any passive and all far- remain as well as 801(e)(1)(D), has supra, this Court al- Rule Absent a flung of confrontation. ready seen fit construe Article construction, savings the members supra, recognizes a manner which power today ignore both validity requiring statute’s facial while change rules of evidence and Legislature to requirements process met certain due prior interpretation of Article 38.- our own application before the statute in its will 801(e)(1), supra. both 071 as shown Rule Thus, pass also constitutional muster. (Tex. State, 711 S.W.2d 639 See Werner case, the instant the statement was admis- Cr.App.1986); 165 Tex.Cr. Gross non-hearsay sible as because declarant For these R. 308 S.W.2d trial, subject to cross-exam- testified at reasons, respectfully I dissent. regarding ination defense counsel statement, and the statement was taken WHITE, JJ., join in this DAVIS and offered in accordance with Article 38.- dissent.

071, supra. We, therefore, circle, come full back to the crucial issue of confrontation. ma- 38.071, supra, re- jority notes that Article available, quires the declarant to be made argument then remarks that the State’s requirement is satis- that the confrontation appears “per- availability fied vis a vis CUEVAS, Ignacio Appellant, until one notices the collateral suasive procedural consequences of such action” Texas, ‍‌​‌‌‌​​​‌‌‌​​‌‌‌​‌​‌‌​​‌​‌​​​‌​​​​‌​‌‌​​​‌​​‌​​​‍bolstering supplied), Appellee. (emphasis to wit: STATE unimpeached videotaped statement No. 69178. testimony. live use of the child’s Texas, Appeals of Criminal Court of appellant fact took the Given En Banc. stand, allegatiops attempt- denying the credibility, I the child’s ing to cast doubt on July testimony im- not hold the rebuttal would Too, up majority has not proper. that the addressed the fact

this moment videotaped properly admissi- interview notes S.Ct. tion, guaranteed by Amend- Sixth at previous of the dead witnesses’ ment, particularly evident in Pointer v. testimony was admitted into evidence. Texas, 13 L.Ed. Concluding “rights public that the 2d 923 In summary, Pointer v. ...,” Id. at at would not Texas, Id., imposed the Sixth Amendment declaring served such evidence inad- upon of confrontation the States missible, purpose the Court identified the operation of the Fourteenth Amend- of the confrontation clause in the Sixth in Pointer Briefly, ment. the defendant Amendment. The Court stated: charged robbery; and another were at primary object of the constitutional examining complainant trial the testified provision question prevent dep- was to the defendant and his co-defendant affidavits, parte ositions or ex such as gunpoint. robbed him at Inasmuch as nei- cases, were sometimes admitted in civil represented by ther defendant was counsel being prisoner used in lieu of no effective cross-examination occurred. personal examination and cross-exami- indicted; The defendants were later how- witness, nation of the in which the ac- ever, prior complaining to their trial opportunity, cused has an witness moved to California with no inten- testing sifting the recollection and returning tion of to Texas. With this infor- witness, conscience of compel- but of predicate, mation as a the trial court admit- ling him to stand face to face with the complainant’s examining ted the trial testi- him, jury they may in order that look at evidence, mony objection of into over the gauge by his demeanor Understandably, the defendant. the de- gives stand and the manner which he fendant was convicted. worthy his whether he is After this Court affirmed his conviction 242-243, Id. belief. 15 S.Ct. at 339- “the Court held that Sixth

Case Details

Case Name: Long v. State

Court Name: Court of Criminal Appeals of Texas

Date Published: Jul 1, 1987

Citation: 742 S.W.2d 302

Docket Number: 867-85

Court Abbreviation: Tex. Crim. App.