In this аppeal, we consider whether the Superior Court erred in admitting hearsay testimony regarding a child victim’s statements of sexual abuse pursuant to 11 Del.C. § 3513. The appellant, Cedric K. McGriff (“McGriff’), contends that the admission of the hearsay statements violated his constitutional right of confrontation. McGriff further contends that the trial court improperly found that the child victim was unavailable as required by 11 Del.C. § 3513. We conclude that the admission of the hearsay testimony of State witnesses regarding the child’s accounts оf sexual abuse by McGriff did not violate his constitutional rights under the Federal or State Confrontation Clauses and that the Superior Court’s determination of unavailability is supported by the record. Accordingly, we affirm.
I
The facts of this case are more fully set forth in this Court’s decision reversing McGriffs prior conviction.
See McGriff v. State,
Del.Supr.,
At McGriffs initial trial, the Child was called as a prosecution witness, but was declared unavailable pursuant to 11
Del.C.
§ 3513(b)(2)a.3. & 4. after the prosecution and trial judge were unable to elicit testimony from her regarding the abuse or her statements pertaining to the abuse. The prosecution then admitted the statements made by the Child through other State witnesses. On appeal, this Court overturned that conviction.
See McGriff,
On remand, a pretrial hearing was held to determine whether the Child was unavailable to testify as required by 11
Del.C.
§ 3513. At the time this hearing was conducted, the Child was 10 years old. During the hearing, the prosecutor, defense counsel, and trial judge questioned the Child about the alleged incidents of abuse and her prior statements of abuse. Generally, the Child responded only to questions unrelated to the case, tangential matters
The Child was subsequently excused, the parties having agreed that further questioning at that time would be useless. After hearing argument from the parties, the Superior Court determined that the Child was unavailable pursuant to 11 Del.C. § 3513(b)(2)a.4. because of her “persistent refusal to testify despite judicial requests to do so.” The Child’s statements pertaining to the sexual abuse by her father were admitted at trial through the school officials to whom the Child had made the statements. McGriff was again found guilty on all counts. This appeal followed.
II
The trial court’s ruling on the admissibility оf evidence is reviewed for an abuse of discretion.
See Feleke v. State,
Del.Supr.,
McGriff argues that his right to confront the witnesses against him under the Sixth Amendment of the United States Constitution and Article I, § 7 of the Delaware Constitution was infringed. McGriff asserts that he should have been permitted to cross-examine the Child in front of the jury during trial and not being afforded the opportunity to do so violated his constitutional right to confront his accuser “face to face” as the Delaware Constitution provides. McGriff further contends that the trial court’s finding of unavailability was not supported by the record. McGriff asserts that even though the Child may have been a difficult witness at trial because of her reluctance to testify, it does not follow that the trial court was required to find her unavailable. The State responds that the record supports the trial court’s finding of unavailability and that the application of the statute did not violate McGriffs constitutional rights.
III
Pursuant to 11 Del.C. § 3513, Delaware’s “tender years” statute, a child 1 victim’s prior out-of-сourt statements pertaining to instances of physical or sexual abuse may be admitted even though the child does not testify and is not available for cross-examination. This exception to the general prohibition against the admission of hearsay statements 2 may be applied even where the child witness does not testify if: (i) the child is declared unavailable, and (ii) the out-of-court statements are found to possess particularized guarantees of trustworthiness. 3 See 11 Del.C. § 3513(b)(2)a. & b.
Both the Sixth Amendment of the United States Constitution and Article I, § 7 of the Delaware Constitution afford defendants in criminal proceedings the right to confront the witnesses who testify against thеm.
4
U.S. Const. amend. VI; Del. Const. art. I, § 7. The right of confrontation affords an accused the opportunity to subject witnesses offering adverse testimony to the rigors of cross-examination, the “ ‘greatest legal engine ever invented for the discovery of truth.’ ”
California v. Green,
The Supreme Court has determined that Sixth Amendment standards may be satisfied where the hearsay statements are found to possess some
indicium
of reliability.
See Ohio v. Roberts,
Because 11
Del.C.
§ 3513 mandates a finding that the out-of-court statements “possess particularized guarantees of trustworthiness” before such statements may be admitted at trial, we have previously decided that § 3513 is facially valid under the standards for admissibility pursuant to bоth the State and Federal Confrontation Clauses.
See Thomas,
The concept of a physical or “face to face” meeting between the declarant and the defendant is not unique to Delaware law. The Sixth Amendment Confrontation Clause protects the right of the accused to a “face-to-face meeting with witnesses appearing before the trier of fact.”
Coy v. Iowa,
We are of the view that the sections of Delaware’s tender years statute at issue in McGriffs case satisfy the “face to face” confrontation requirement of Article I, § 7 of the Delaware Constitution. Although the Delаware Constitution defines confrontation as the right of a defendant to meet the witnesses “face to face,” the. right of confrontation necessarily implies some sort of “face to face” meeting. Indeed, the term confrontation has been defined as “bringing face to face of an accused person and his accusing witnesses.” Webster’s New International Dictionary 477 (3d ed.1986).
Other jurisdictions applying state constitutional confrontation provisions requiring “face to face” meeting have reached differing results. Some have opted for a literal application, particularly where a videotaped interview was admitted in lieu of direct testimony of a child,
see State v. Apilando,
Haw.Supr., 79 Hawai’i 128,
The Delaware tender years statute, as construed in
McGriff I,
does afford the
The Supreme Court of Indiana in
Pierce v. State,
The ruling in Pierce strikes the appropriate balance under a “facе to face” constitutional standard because it safeguards the right of cross-examination while accommodating the need to spare small children the emotional trauma sometimes associated with the trial process. Similarly, we conclude that the Delaware tender years statute satisfies the “face to face” requirement of the Delaware Constitution through its protection of the right of “face to face” cross-examination on both the issue of the child’s availability and the subsequent determination of trustworthiness of the proffered out-of-court statements.
Furthermore, as we pointed out in
Gannon,
certain hearsay exceptions existed at the time the current language of the Delaware Constitution was adopted.
See Gannon,
The State has an interest in protecting young children from testifying. In addition, the State has an interest in prosecuting individuals in cases of sexual and physical abuse involving children, cases that can be very difficult to prosecute.
See Wheat v. State,
Del.Supr.,
Of course, defendants in criminal cases have a significant constitutional right in ensuring that the testimony admitted against them is reliable. The right of confrontation aids the accused in this regard, forcing adverse witnesses to appear in court and be subject to cross-examination. Where this right must yield because of public policy interests, countervailing measures must be in place to ensure the statements’ reliability,
i.e.,
the statements must be admitted pursuant to a firmly rooted exception to the hearsay rule (in which case the reliability of the statement is inferred), or must be found to possess particularized guarantees of trustworthiness.
See Lilly v. Virginia,
IV
We next consider McGriffs contentiоn that, even if the “tender years” statute is constitutional, the Superior Court’s finding of unavailability was not supported by the record. A specific finding of unavailability must be made by the trial court. The statute provides that a child witness may be declared unavailable on any of the following grounds:
1. The child’s death;
2. The child’s absence from the jurisdiction;
3. The child’s total failure of memory;
4. The child’s persistent refusal to testify despite judicial requests to do so;
5. The child’s physical or mental disability;
6. The existence of a privilege involving the child;
7. The child’s incompetency, including the child’s inability to communicate about the offense because of fear or a similar reason; or
8. Substantial likelihood that the child would suffer severe emotional trauma from testifying at the proceeding or by means of a videotaped deposition or closed-circuit television;
11 Del.C. § 8513(b)(2)a.
As the statute makes clear, a child witness may be declared unavailable where the child persistently refuses “to testify despite judicial requests to do so,” the basis upon which the Superior Court declared the Child unavailable in this case. At the pretrial hearing, the prosecutor, defense counsel, and the triаl judge attempted to elicit testimony from the Child regarding McGriffs sexual abuse of her and the statements she made to school officials relating to that abuse. In spite of numerous requests by the trial judge throughout the hearing that the Child answer questions posed to her, the Child for the most part remained non-responsive.
During direct examination, the Child readily answered some questions posed to her. These questions mostly dealt with extraneous matters, however. The Child was generally non-responsive when asked abоut the incidents of abuse or the statements she made to school officials. Indeed, when questioning shifted to the abuse and the statements she made pertaining thereto, the Child became extremely reserved and claimed no memory of what had occurred or what she had told her teachers.
On cross-examination, the Child did state that she remembered McGriff hurting her during a time when she was living in a motel with her mother. After eliciting this response, however, defense counsel ceased questioning. On redirect, thе prosecutor attempted to question the Child further about what occurred during that time. The Child, however, retreated back into herself, offering monosyllabic answers to the questions posed to her and eventually stating “I hate — I don’t want to do this no more.... I don’t want to stay here.” Despite repeated requests from the trial judge, the Child refused to answer the prosecutor’s questions. The trial judge then attempted to elicit testimony from the Child. The witness, however, remained non-responsive and refused to answer the trial judge’s questions. 8 Having failed to elicit any meaningful testimony from the witness, the trial judge finally excused the Child.
The record demonstrates that the trial judge requested the Child to answer questions regarding the abuse or her prior statements pertaining to the abuse. Notwithstanding these requests, the Child declined to cooperate. In effect, the Child was “blocking” the incidents of abuse, refusing to recall or communicate about them. Moreover, at the end of the hearing the Child became visibly upset and totаlly non-responsive.
The trial judge who conducted the examination was in a unique position to determine whether further efforts to force the child to testify would be productive or
V
We conclude that the requirements of 11 Del.C. § 3513 satisfy the Federal and State Constitutions and that the Superior Court’s determination of unavailability pursuant to the statute was amply supported by the record.
For the foregoing reasons, the decision of the Superior Court is Affirmed.
Notes
. For this exception to apply, the child witness must be "under 11 years of age at the time of the proceeding.” 11 Del.C. § 3513(a).
. See D.R.E. 802, stating that: "Hearsay is not admissible except as provided by law or by these Rules.”
.The Superior Court’s previous finding that the Child’s statements possessed particularized guarantees of trustworthiness in satisfaction of the statutory requirements is not an issue on this appeal.
. The United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....” U.S. Const. amend. VI. The analogous provision of the Delaware Constitution provides that "[i]n all criminal prosecutions, the accused hath a right ... to meet the witnesses in their examination face to face....” Del. Const. art. I, § 7. The Confrontation Clause in the Sixth Amendment is applicable to the states by virtue of the Fourteenth Amendment.
See Pointer v. Texas,
.
See Gannon v. State,
Del.Supr.,
. We recognized in
Thomas
that "[p]resently, for Confrontation Clause purposes, unavailability is clearly required only where the out-of-court statement was made in the course of a prior judicial proceeding.”
Thomas v. State,
Del.Supr.,
. 11 Del.C. § 3511 also permits the use of videotaped testimony in lieu of live testimony by an available witness under the age of 12 years, but the constitutionality of the statute is not before us.
. For example, the following exchange between the trial judge and the Child illustrates the Child’s refusal to testify:
The Court: [Y]ou don’t want to talk to [the prosecutor]?
The Witness: (Witness nods head).
The Court: Can you tell me why? ... Tell me why don’t you want to talk to her.
The Witness: I don't want to say it no more.
The Court: Tell me what happened.
The Witness: (No response).
The Court: Will you tell me?
The Witness: (No response).
The Court: ... Do you remember the things you told the lady that happened to you?
The Witness: Yes.
The Court: Will you tell me?
The Witness: (No response).
