MARYLAND v. CRAIG
No. 89-478
Supreme Court of the United States
Argued April 18, 1990—Decided June 27, 1990
497 U.S. 836
William H. Murphy, Jr., argued the cause for respondent. With him on the brief were Maria Cristina Gutierrez, Gary S. Bernstein, Byron L. Warnken, and Clarke F. Ahlers.*
This case requires us to decide whether the Confrontation Clause of the
I
In October 1986, a Howard County grand jury charged respondent, Sandra Ann Craig, with child abuse, first and second degree sexual offenses, perverted sexual practice, assault, and battery. The named victim in each count was a 6-year-old girl who, from August 1984 to June 1986, had attended a kindergarten and prekindergarten center owned and operated by Craig.
In March 1987, before the case went to trial, the State sought to invoke a Maryland statutory procedure that permits a judge to receive, by one-way closed circuit television, the testimony of a child witness who is alleged to be a victim of child abuse.1 To invoke the procedure, the
In support of its motion invoking the one-way closed circuit television procedure, the State presented expert testimony that the named victim, as well as a number of other children who were alleged to have been sexually abused by Craig, would suffer “serious emotional distress such that [they could not] reasonably communicate,”
“The expert testimony in each case suggested that each child would have some or considerable difficulty in testifying in Craig‘s presence. For example, as to one child, the expert said that what ‘would cause him the most anxiety would be to testify in front of Mrs. Craig....’ The child ‘wouldn‘t be able to communicate effectively.’ As to another, an expert said she ‘would probably stop talking and she would withdraw and curl up.’ With respect to two others, the testimony was that one would ‘become highly agitated, that he may refuse to talk or if he did talk, that he would choose his subject regardless of the questions’ while the other would ‘become extremely timid and unwilling to talk.‘” 316 Md. 551, 568-569, 560 A. 2d 1120, 1128-1129 (1989).
Craig objected to the use of the procedure on Confrontation Clause grounds, but the trial court rejected that contention, concluding that although the statute “take[s] away the right of the defendant to be face to face with his or her accuser,” the defendant retains the “essence of the right of confrontation,” including the right to observe, cross-examine, and have the jury view the demeanor of the witness. App. 65-66. The trial court further found that, “based upon the evidence presented ... the testimony of each of these children in a courtroom will result in each child suffering serious emotional distress ... such that each of these children cannot reason-
The Court of Appeals of Maryland reversed and remanded for a new trial. 316 Md. 551, 560 A. 2d 1120 (1989). The Court of Appeals rejected Craig‘s argument that the Confrontation Clause requires in all cases a face-to-face courtroom encounter between the accused and his accusers, id., at 556-562, 560 A. 2d, at 1122-1125, but concluded:
“[U]nder
§ 9-102(a)(1)(ii) , the operative ‘serious emotional distress’ which renders a child victim unable to ‘reasonably communicate’ must be determined to arise, at least primarily, from face-to-face confrontation with the defendant. Thus, we construe the phrase ‘in the courtroom’ as meaning, for sixth amendment and [state constitution] confrontation purposes, ‘in the courtroom in the presence of the defendant.’ Unless prevention of ‘eyeball-to-eyeball’ confrontation is necessary to obtain the trial testimony of the child, the defendant cannot be denied that right.” Id., at 566, 560 A. 2d, at 1127.
Reviewing the trial court‘s finding and the evidence presented in support of the § 9-102 procedure, the Court of Appeals held that, “as [it] read Coy [v. Iowa, 487 U. S. 1012 (1988)], the showing made by the State was insufficient to reach the high threshold required by that case before § 9-102 may be invoked.” Id., at 554-555, 560 A. 2d, at 1121 (footnote omitted).
We granted certiorari to resolve the important Confrontation Clause issues raised by this case. 493 U. S. 1041 (1990).
The Confrontation Clause of the
We observed in Coy v. Iowa that “the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact.” 487 U. S., at 1016 (citing Kentucky v. Stincer, 482 U. S. 730, 748, 749-750 (1987) (MARSHALL, J., dissenting)); see also Pennsylvania v. Ritchie, 480 U. S. 39, 51 (1987) (plurality opinion); California v. Green, 399 U. S. 149, 157 (1970); Snyder v. Massachusetts, 291 U. S. 97, 106 (1934); Dowdell v. United States, 221 U. S. 325, 330 (1911); Kirby v. United States, 174 U. S. 47, 55 (1899); Mattox v. United States, 156 U. S. 237, 244 (1895). This interpretation derives not only from the literal text of the Clause, but also from our understanding of its historical roots. See Coy, supra, at 1015-1016; Mattox, supra, at 242 (Confrontation Clause intended to prevent conviction by affidavit); Green, supra, at 156 (same); cf. 3 J. Story, Commentaries on the Constitution § 1785, p. 662 (1833).
We have never held, however, that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial. Indeed, in Coy v. Iowa, we expressly “le[ft] for another day ... the question whether any exceptions exist” to the “irreducible literal meaning of the Clause: ‘a right to meet face to face all those who appear and give evidence at trial.‘” 487 U. S., at 1021 (quoting Green, supra, at 175 (Harlan, J., concurring)). The procedure challenged in Coy involved the placement of a screen that prevented two child witnesses in a child abuse case from seeing the defendant as they testified against him at trial. See 487 U. S., at 1014-1015. In holding that the use of this procedure violated the defendant‘s right to confront witnesses against him, we suggested that
The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. The word “confront,” after all, also means a clashing of forces or ideas, thus carrying with it the notion of adversariness. As we noted in our earliest case interpreting the Clause:
“The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox, supra, at 242-243.
As this description indicates, the right guaranteed by the Confrontation Clause includes not only a “personal examination,” 156 U. S., at 242, but also “(1) insures that the witness will give his statements under oath—thus impressing him with
The combined effect of these elements of confrontation—physical presence, oath, cross-examination, and observation of demeanor by the trier of fact—serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings. See Stincer, supra, at 739 (“[T]he right to confrontation is a functional one for the purpose of promoting reliability in a criminal trial“); Dutton v. Evans, 400 U. S. 74, 89 (1970) (plurality opinion) (“[T]he mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that ‘the trier of fact [has] a satisfactory basis for evaluating the truth of the [testimony]‘“); Lee v. Illinois, 476 U. S. 530, 540 (1986) (confrontation guarantee serves “symbolic goals” and “promotes reliability“); see also Faretta v. California, 422 U. S. 806, 818 (1975) (
We have recognized, for example, that face-to-face confrontation enhances the accuracy of factfinding by reducing the risk that a witness will wrongfully implicate an innocent person. See Coy, supra, at 1019-1020 (“It is always more difficult to tell a lie about a person ‘to his face’ than ‘behind his back.‘... That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or
Although face-to-face confrontation forms “the core of the values furthered by the Confrontation Clause,” Green, 399 U. S., at 157, we have nevertheless recognized that it is not the sine qua non of the confrontation right. See Delaware v. Fensterer, 474 U. S. 15, 22 (1985) (per curiam) (“[T]he Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose [testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness’ testimony“); Roberts, supra, at 69 (oath, cross-examination, and demeanor provide “all that the
For this reason, we have never insisted on an actual face-to-face encounter at trial in every instance in which testimony is admitted against a defendant. Instead, we have repeatedly held that the Clause permits, where necessary, the admission of certain hearsay statements against a defendant de-
“There is doubtless reason for saying that... if notes of [the witness‘] testimony are permitted to be read, [the defendant] is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent. The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused.” Id., at 243.
We have accordingly stated that a literal reading of the Confrontation Clause would “abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme.” Roberts, 448 U. S., at 63. Thus, in certain narrow circumstances, “competing interests, if ‘closely examined,’ may warrant dispensing with confrontation at trial.” Id., at 64 (quoting Chambers v. Mississippi, 410 U. S. 284, 295 (1973), and citing Mattox, supra). We have recently held,
In sum, our precedents establish that “the Confrontation Clause reflects a preference for face-to-face confrontation at trial,” Roberts, supra, at 63 (emphasis added; footnote omitted), a preference that “must occasionally give way to considerations of public policy and the necessities of the case,” Mattox, supra, at 243. “[W]e have attempted to harmonize the goal of the Clause—placing limits on the kind of evidence that may be received against a defendant—with a societal interest in accurate factfinding, which may require consideration of out-of-court statements.” Bourjaily, supra, at 182. We have accordingly interpreted the Confrontation Clause in a manner sensitive to its purposes and sensitive to the necessities of trial and the adversary process. See, e. g., Kirby, 174 U. S., at 61 (“It is scarcely necessary to say that to the rule that an accused is entitled to be confronted with witnesses against him the admission of dying declarations is an exception which arises from the necessity of the case“); Chambers, supra, at 295 (“Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process“). Thus, though we reaffirm the importance of face-to-face confrontation with witnesses appearing at trial, we cannot say that such confrontation is an indispensable element of the
This interpretation of the Confrontation Clause is consistent with our cases holding that other
That the face-to-face confrontation requirement is not absolute does not, of course, mean that it may easily be dispensed with. As we suggested in Coy, our precedents confirm that a defendant‘s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured. See 487 U. S., at 1021 (citing Roberts, supra, at 64; Chambers, supra, at 295); Coy, supra, at 1025 (O‘CONNOR, J., concurring).
Maryland‘s statutory procedure, when invoked, prevents a child witness from seeing the defendant as he or she testifies against the defendant at trial. We find it significant, however, that Maryland‘s procedure preserves all of the other elements of the confrontation right: The child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies. Although we are mindful of the many subtle effects face-to-face confrontation may have on an adversary criminal proceeding, the presence of these other elements of confrontation—oath, cross-examination, and observation of the witness’ demeanor—adequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony. These safeguards of reliability and adversariness render the use of such a procedure a far cry from the undisputed prohibition of the Confrontation Clause: trial by ex parte affidavit or inquisition, see Mattox, 156 U. S., at 242; see also Green, 399 U. S., at 179 (Harlan, J., concurring) (“[T]he Confrontation Clause was meant to constitutionalize a barrier against flagrant abuses, trials by anonymous accusers, and absentee witnesses“). Rather, we think these elements of effective confrontation not only permit a defendant to “confound and undo the false accuser, or reveal the child coached by a malevolent adult,” Coy, supra, at 1020, but may well aid a defendant in eliciting favorable testimony from the child witness. Indeed, to the extent the child witness’ testimony may be said to be technically given out of court (though we do not so hold), these assurances of reliability and adversariness are far greater than those required for admission of hearsay testimony under the Confrontation Clause. See Roberts, 448
The critical inquiry in this case, therefore, is whether use of the procedure is necessary to further an important state interest. The State contends that it has a substantial interest in protecting children who are allegedly victims of child abuse from the trauma of testifying against the alleged perpetrator and that its statutory procedure for receiving testimony from such witnesses is necessary to further that interest.
We have of course recognized that a State‘s interest in “the protection of minor victims of sex crimes from further trauma and embarrassment” is a “compelling” one. Globe Newspaper Co. v. Superior Court of Norfolk County, 457 U. S. 596, 607 (1982); see also New York v. Ferber, 458 U. S. 747, 756-757 (1982); FCC v. Pacifica Foundation, 438 U. S. 726, 749-750 (1978); Ginsberg v. New York, 390 U. S. 629, 640 (1968); Prince v. Massachusetts, 321 U. S. 158, 168 (1944). “[W]e have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights.” Ferber, supra, at 757. In Globe Newspaper, for example, we held that a State‘s interest in the physical and psychological well-being of a minor victim was sufficiently weighty to justify depriving the press and public of their constitutional right to attend criminal trials, where the trial court makes a case-specific finding that closure of the trial is necessary to protect the welfare of the minor. See 457 U. S., at 608-609. This Term, in Osborne v. Ohio, 495 U. S. 103 (1990), we upheld a state statute that proscribed the possession and viewing of child pornography, reaffirming that “[i]t is evident beyond the need for elaboration that a State‘s interest in ‘safeguarding the physical and
We likewise conclude today that a State‘s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant‘s right to face his or her accusers in court. That a significant majority of States have enacted statutes to protect child witnesses from the trauma of giving testimony in child abuse cases attests to the widespread belief in the importance of such a public policy. See Coy, 487 U. S., at 1022-1023 (O‘CONNOR, J., concurring) (“Many States have determined that a child victim may suffer trauma from exposure to the harsh atmosphere of the typical courtroom and have undertaken to shield the child through a variety of ameliorative measures“). Thirty-seven States, for example, permit the use of videotaped testimony of sexually abused children;2 24 States have authorized the use of one-way
The statute at issue in this case, for example, was specifically intended “to safeguard the physical and psychological well-being of child victims by avoiding, or at least minimizing, the emotional traumas produced by testifying.” Wildermuth v. State, 310 Md. 496, 518, 530 A. 2d 275, 286 (1987). The Wildermuth court noted:
“In Maryland, the Governor‘s Task Force on Child Abuse in its Interim Report (Nov. 1984) documented the existence of the [child abuse] problem in our State. Interim Report at 1. It brought the picture up to date in its Final Report (Dec. 1985). In the first six months of 1985, investigations of child abuse were 12 percent more numerous than during the same period of 1984. In 1979 4,615 cases of child abuse were investigated; in 1984,
8,321. Final Report at iii. In its Interim Report at 2, the Commission proposed legislation that, with some changes, became § 9-102. The proposal was ‘aimed at alleviating the trauma to a child victim in the courtroom atmosphere by allowing the child‘s testimony to be obtained outside of the courtroom.’ Id., at 2. This would both protect the child and enhance the public interest by encouraging effective prosecution of the alleged abuser.” Id., at 517, 530 A. 2d, at 285.
Given the State‘s traditional and “transcendent interest in protecting the welfare of children,” Ginsberg, 390 U. S., at 640 (citation omitted), and buttressed by the growing body of academic literature documenting the psychological trauma suffered by child abuse victims who must testify in court, see Brief for American Psychological Association as Amicus Curiae 7-13; G. Goodman et al., Emotional Effects of Criminal Court Testimony on Child Sexual Assault Victims, Final Report to the National Institute of Justice (presented as conference paper at annual convention of American Psychological Assn., Aug. 1989), we will not second-guess the considered judgment of the Maryland Legislature regarding the importance of its interest in protecting child abuse victims from the emotional trauma of testifying. Accordingly, we hold that, if the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant.
The requisite finding of necessity must of course be a case-specific one: The trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify. See Globe Newspaper Co., 457 U. S., at 608-609 (compelling interest in protecting
To be sure, face-to-face confrontation may be said to cause trauma for the very purpose of eliciting truth, cf. Coy, supra, at 1019-1020, but we think that the use of Maryland‘s special procedure, where necessary to further the important state interest in preventing trauma to child witnesses in child
In sum, we conclude that where necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child‘s ability to communicate, the Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation. Because there is no dispute that the child witnesses in this case testified under oath, were subject to full cross-examination, and were able to be observed by the judge, jury, and defendant as they testified, we conclude that, to the extent that a proper finding of necessity has been made, the admission of such testimony would be consonant with the Confrontation Clause.
IV
The Maryland Court of Appeals held, as we do today, that although face-to-face confrontation is not an absolute constitutional requirement, it may be abridged only where there
In addition, however, the Court of Appeals interpreted our decision in Coy to impose two subsidiary requirements. First, the court held that ”
Reviewing the evidence presented to the trial court in support of the finding required under
“Unable to supplement the expert testimony by responses to questions put by him, or by his own observations of the children‘s behavior in Craig‘s presence, the judge made his
§ 9-102 finding in terms of what the experts had said. He ruled that ‘the testimony of each of these children in a courtroom will [result] in each child suffering serious emotional distress . . . such that each of these children cannot reasonably communicate.’ He failed to find — indeed, on the evidence before him, could not have found — that this result would be the product of testimony in a courtroom in the defendant‘s presence or outside the courtroom but in the defendant‘s televised presence. That, however, is the finding of necessity required to limit the defendant‘s right of confrontation through invocation of§ 9-102 . Since that finding was not made here, and since the procedures we deem requisite to the valid use of§ 9-102 were not followed, the judgment of the Court of Special Appeals must be reversed and the case remanded for a new trial.” Id., at 570-571, 560 A. 2d, at 1129 (emphasis added).
The Court of Appeals appears to have rested its conclusion at least in part on the trial court‘s failure to observe the children‘s behavior in the defendant‘s presence and its failure to
It is so ordered.
JUSTICE SCALIA, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting.
Seldom has this Court failed so conspicuously to sustain a categorical guarantee of the Constitution against the tide of prevailing current opinion. The
“We . . . conclude today that a State‘s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant‘s right to face his or her accusers in court. That a significant majority of States have enacted statutes to protect child witnesses from the trauma of giving testimony in child abuse cases attests to the widespread belief in the importance of such a public policy.” Ante, at 853.
Because of this subordination of explicit constitutional text to currently favored public policy, the following scene can be played out in an American courtroom for the first time in two centuries: A father whose young daughter has been given over to the exclusive custody of his estranged wife, or a mother whose young son has been taken into custody by the State‘s child welfare department, is sentenced to prison for sexual abuse on the basis of testimony by a child the parent has not seen or spoken to for many months; and the guilty verdict is rendered without giving the parent so much as the opportunity to sit in the presence of the child, and to ask, personally or through counsel, “it is really not true, is it, that I — your father (or mother) whom you see before you — did these terrible things?” Perhaps that is a procedure today‘s society desires; perhaps (though I doubt it) it is even a fair procedure; but it is assuredly not a procedure permitted by the Constitution.
Because the text of the
According to the Court, “we cannot say that [face-to-face] confrontation [with witnesses appearing at trial] is an indispensable element of the
The Court claims that its interpretation of the Confrontation Clause “is consistent with our cases holding that other
II
Much of the Court‘s opinion consists of applying to this case the mode of analysis we have used in the admission of hearsay evidence. The
Some of the Court‘s analysis seems to suggest that the children‘s testimony here was itself hearsay of the sort permissible under our Confrontation Clause cases. See ante, at 851. That cannot be. Our Confrontation Clause conditions for the admission of hearsay have long included a “general requirement of unavailability” of the declarant. Idaho v. Wright, ante, at 815. “In the usual case . . . the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” Ohio v. Roberts, 448 U. S., at 65. We have permitted a few exceptions to this general rule — e. g., for co-conspirators’ statements, whose effect cannot be replicated by live testimony because they “derive [their] significance from the circumstances in which [they were] made,” United States v. Inadi, 475 U. S. 387, 395 (1986). “Live” closed-circuit television testimony, however — if it can be called hearsay at all — is surely an example of hearsay as “a weaker substitute for live testimony,” id., at 394, which can be employed only when the genuine article is unavailable. “When
The Court‘s test today requires unavailability only in the sense that the child is unable to testify in the presence of the defendant.1 That cannot possibly be the relevant sense. If unconfronted testimony is admissible hearsay when the witness is unable to confront the defendant, then presumably there are other categories of admissible hearsay consisting of unsworn testimony when the witness is unable to risk perjury, un-cross-examined testimony when the witness is unable to undergo hostile questioning, etc. California v. Green, 399 U. S. 149 (1970), is not precedent for such a silly system. That case held that the Confrontation Clause does not bar admission of prior testimony when the declarant is sworn as a witness but refuses to answer. But in Green, as in most cases of refusal, we could not know why the declarant refused to testify. Here, by contrast, we know that it is precisely because the child is unwilling to testify in the presence of the defendant. That unwillingness cannot be a valid excuse under the Confrontation Clause, whose very object is to place the witness under the sometimes hostile glare of the defendant. “That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult.” Coy, 487
III
The Court characterizes the State‘s interest which “outweigh[s]” the explicit text of the Constitution as an “interest in the physical and psychological well-being of child abuse victims,” ante, at 853, an “interest in protecting” such victims “from the emotional trauma of testifying,” ante, at 855. That is not so. A child who meets the Maryland statute‘s requirement of suffering such “serious emotional distress” from confrontation that he “cannot reasonably communicate” would seem entirely safe. Why would a prosecutor want to call a witness who cannot reasonably communicate? And if he did, it would be the State‘s own fault. Protection of the child‘s interest — as far as the Confrontation Clause is concerned2 — is entirely within Maryland‘s control. The State‘s interest here is in fact no more and no less than what the State‘s interest always is when it seeks to get a class of evidence admitted in criminal proceedings: more convictions of guilty defendants. That is not an unworthy interest, but it should not be dressed up as a humanitarian one.
And the interest on the other side is also what it usually is when the State seeks to get a new class of evidence admitted: fewer convictions of innocent defendants — specifically, in the
“As children continued to be interviewed the list of accused citizens grew. In a number of cases, it was only after weeks or months of questioning that children would ‘admit’ their parents abused them.
“In some instances, over a period of time, the allegations of sexual abuse turned to stories of mutilations, and eventually homicide.” Id., at 10-11.
The value of the confrontation right in guarding against a child‘s distorted or coerced recollections is dramatically evident with respect to one of the misguided investigative techniques the report cited: some children were told by their foster parents that reunion with their real parents would be hastened by “admission” of their parents’ abuse. Id., at 9. Is it difficult to imagine how unconvincing such a testimonial admission might be to a jury that witnessed the child‘s delight at seeing his parents in the courtroom? Or how devastating it might be if, pursuant to a psychiatric evaluation that “trauma would impair the child‘s ability to communicate” in front of his parents, the child were permitted to tell his story to the jury on closed-circuit television?
In the last analysis, however, this debate is not an appropriate one. I have no need to defend the value of confronta-
* * *
The Court today has applied “interest-balancing” analysis where the text of the Constitution simply does not permit it. We are not free to conduct a cost-benefit analysis of clear and explicit constitutional guarantees, and then to adjust their meaning to comport with our findings. The Court has convincingly proved that the Maryland procedure serves a valid interest, and gives the defendant virtually everything the Confrontation Clause guarantees (everything, that is, except confrontation). I am persuaded, therefore, that the Maryland procedure is virtually constitutional. Since it is not, however, actually constitutional I would affirm the judgment of the Maryland Court of Appeals reversing the judgment of conviction.
Notes
“(a)(1) In a case of abuse of a child as defined in § 5-701 of the Family Law Article or Article 27, § 35A of the Code, a court may order that the testimony of a child victim be taken outside the courtroom and shown in the courtroom by means of a closed circuit television if:
“(i) The testimony is taken during the proceeding; and
“(ii) The judge determines that testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate.
“(2) Only the prosecuting attorney, the attorney for the defendant, and the judge may question the child.
“(3) The operators of the closed circuit television shall make every effort to be unobtrusive.
“(b)(1) Only the following persons may be in the room with the child when the child testifies by closed circuit television:
“(i) The prosecuting attorney;
“(ii) The attorney for the defendant;
“(iii) The operators of the closed circuit television equipment; and
“(iv) Unless the defendant objects, any person whose presence, in the opinion of the court, contributes to the well-being of the child, including a person who has dealt with the child in a therapeutic setting concerning the abuse.
“(2) During the child‘s testimony by closed circuit television, the judge and the defendant shall be in the courtroom.
“(3) The judge and the defendant shall be allowed to communicate with the persons in the room where the child is testifying by any appropriate electronic method.
“(c) The provisions of this section do not apply if the defendant is an attorney pro se.
“(d) This section may not be interpreted to preclude, for purposes of identification of a defendant, the presence of both the victim and the defendant in the courtroom at the same time.”
For a detailed description of the § 9-102 procedure, see Wildermuth v. State, 310 Md. 496, 503-504, 530 A. 2d 275, 278-279 (1987). I presume that when the Court says “trauma would impair the child‘s ability to communicate,” ante, at 857, it means that trauma would make it impossible for the child to communicate. That is the requirement of the Maryland law at issue here: “serious emotional distress such that the child cannot reasonably communicate.”