204 Conn. 683 | Conn. | 1987
Lead Opinion
The sole issue in this appeal is whether, in a criminal prosecution involving alleged sexual abuse of children, a minor victim may testify through the use of a videotape made outside the physical presence of the defendant. The defendant, Charles Jarzbek, was charged by information with the crimes of risk of injury to or impairing the morals of a child in violation of General Statutes § 53-21 and sexual assault in the fourth degree in violation of General Statutes § 53a-73a.
I
Before we address the merits of the defendant’s attack on the videotaped evidence taken outside his physical presence, we must first identify the process by which that videotape was sought, the videotaping procedure that the trial court authorized, and the role that the videotaped testimony played at the defendant’s trial. A detailed understanding of the record is essential to put the defendant’s claims into focus.
The trial court permitted videotaping of the testimony of the alleged victims, T, and her brother, I, in response to a pretrial motion by the state. In support of its motion, the state presented the testimony of two clinical psychologists who opined that the children would be psychologically and emotionally traumatized if they were to be required to testify in open court in the presence of the defendant. The defendant called no witnesses of his own, although he did cross-examine the state’s witnesses.
In granting the state’s motion, the trial court framed the issue as “whether or not the videotaping of the testimony of these four and five year old witnesses outside the presence of the defendant and the jury in a case alleging sexual molesting by their father violates the defendant’s sixth amendment right of confrontation.” The court noted the widespread prevalence of child sexual abuse and the “tremendous rise” in the number of such cases in recent years. Relying upon the testimony of the psychologists, and upon the state’s assertion that sexually abused children suffer further trauma when forced to testify in the presence of their alleged abusers, the court concluded that the children’s
The trial court’s order set out specific procedures designed to balance the needs of the children to testify without trauma and the right of the defendant to confront the witnesses against him.
After a competency hearing, only T, the defendant’s daughter, was deemed competent to testify at trial.
In the videotape that was introduced into evidence at trial, T described the game of “roll around,” which she demonstrated through the use of anatomically correct dolls. After the dolls’ clothes had been removed, she placed them together, face to face, demonstrating genital contact. She stated that she had played the game with her father “many times” and that they had always played with their clothes off. She further testified that her buttocks had gotten dirty from the game and that she had had to take a bath “[s]o Grammy [wouldn’t] know.” She also stated that her father had told her that he would hit her if she told anyone about the game.
The jury could reasonably have found other evidence introduced by the state at trial to be corroborative of
Various adult relatives also testified, at trial, about conversations with T concerning the games she had played with her father. The victim had given essentially the same account, in varying degrees of detail, to her aunt, her mother, her maternal grandmother, and a social worker.
In his appeal, the defendant maintains that the trial court erred in admitting into evidence the videotaped testimony of his daughter because it was videotaped outside his physical presence. In challenging the legality of this videotaping procedure, the defendant has raised only two interconnected claims. Notably, he has considerably narrowed the focus of our inquiry because there are a number of possibly related questions that he has not pursued. The defendant does not challenge the competency of the minor victim, T, to testify.
II
We will first address the constitutional origins of the defendant’s claims. Relying on the right to confrontation guaranteed to him by the federal and state constitutions; U.S. Const., amends. VI, XIV; Conn. Const., art. I, § 8; the defendant maintains that his right physically to confront the witnesses against him was not satisfied by affording him the opportunity to watch T testify on videotape and to cross-examine her in the setting described above. Absent a compelling need, which has not been established here, he argues that he has a constitutional right to insist on a face-to-face confrontation with adverse witnesses.
It is useful to consider this novel constitutional claim by dividing it into a number of subsidiary issues. We must first decide whether the defendant is entitled to invoke the state constitution, which he did not cite to the trial court when it ruled on the state’s pretrial motion for videotaping. Second, we must determine whether the rights protected by the relevant federal and state confrontation clauses encompass a right of physical confrontation in addition to a right of cross-examination. Third, we must decide whether the rights
A
The state maintains that the defendant may not, on appeal, invoke the confrontation clause of our state constitution because he did not rely on that provision at trial. We disagree. If the record adequately supports an appellate inquiry, a constitutional challenge that implicates the fundamental constitutional right of an accused to confront witnesses against him; Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); as well as the fundamental fairness of his trial; State v. Couture, 194 Conn. 530, 560-65, 482 A.2d 300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967, 83 L. Ed. 2d 971 (1985); can be raised on appeal for the first time. This is such a case. Accordingly, we will review the defendant’s constitutional claims under both the state and the federal constitutions. State v. Fullwood, 199 Conn. 281, 283, 507 A.2d 85 (1986); State v. King, 187 Conn. 292, 309, 445 A.2d 901 (1982); see State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).
B
The state and the defendant agree that videotaping the testimony of a witness against the defendant, outside the defendant’s physical presence, implicates the right of an accused to confront witnesses against him as guaranteed by the confrontation clause of both the federal and state constitutions. U.S. Const., amends. VI, XIV; Conn. Const., art. I, § 8; Davis v. Alaska, 415 U.S. 308, 318, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974); Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); Pointer v. Texas, supra, 403-404; State v. Maldonado, 193 Conn. 350, 356, 478 A.2d 581 (1984); State v. Wilson, 188 Conn. 715, 721, 453 A.2d 765 (1980); State v. Hackett, 182 Conn. 511,
Although most confrontation clause litigation has involved an alleged infringement on the right of cross-examination, the right of physical confrontation is an equally fundamental component of the clauses. As the United States Supreme Court has asserted, a defendant’s “literal right to ‘confront’ the witness at the time of trial . . . forms the core of the values furthered by the Confrontation Clause.” California v. Green, 399 U.S. 149, 157, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970); Delaware v. Fensterer, supra; Davis v. Alaska, supra, 315; Dowdell v. United States, 221 U.S. 325, 330, 31 S. Ct. 590, 55 L. Ed. 753 (1911). The clause was originally conceived as a safeguard “to prevent depositions or ex parte affidavits . . . 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 v. United States, 156 U.S. 237, 242-43, 15 S. Ct. 337, 39 L. Ed. 409 (1895); see also 5 J. Wigmore, Evidence (3d Ed. 1940) §§ 1365,1367. The clause finds its modern justification in the perceived role that physical confrontation
C
The protection that the confrontation clauses afford to a criminal defendant is not, however, absolute. The United States Supreme Court has recognized that competing interests “may warrant dispensing with confrontation at trial.” Ohio v. Roberts, 448 U.S. 56, 64, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980); Chambers v. Mississippi, supra, 295; Mattox v. United States, supra, 243. For example, although the federal confrontation clause has been interpreted as reflecting a “preference for face-to-face confrontation at trial”; Ohio v. Roberts, supra, 63; an “adequate opportunity for cross-examination may satisfy the clause even in the absence of physical confrontation.” Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965). In this case, the videotaping procedure at issue was designed to afford the defendant a full opportunity to cross-examine the minor victim. See Stincer v. Commonwealth, 712 S.W.2d 939, 941 (Ky. 1986), rev’d, 482 U.S. , 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987). The issue presently before us, therefore, is to determine what circumstances warrant impairment of the second confrontation requirement, the defendant’s right of physical confrontation.
The state’s broad response to this claim is that the constitutionality of the videotaping procedure may be upheld because the defendant had an opportunity to participate visually and electronically in the taking of the testimony that he challenges. The state maintains that this procedure afforded the defendant the equivalent of face-to-face access to the adverse witness, and that the confrontation clauses do not require more. See Ohio v. Roberts, supra, 63; Commonwealth v. Willis, 716 S.W.2d 224, 230 (Ky. 1986); State v. Sheppard, 197 N.J. Super. 411, 484 A.2d 1330 (1984). Interpreting the clauses in this manner, according to the state, adequately serves the underlying purpose of confrontation, which is to further the accuracy of the truth-seeking process. See California v. Green, supra, 161.
The state’s argument is unpersuasive because it pays insufficient deference to the constitutional requirement of an opportunity for physical confrontation, which we interpret to mean eyeball-to-eyeball confrontation, between the accused and adverse witnesses. Pennsylvania v. Ritchie, supra, 51; Delaware v. Van Arsdall, supra, 678; Delaware v. Fensterer, supra, 18; California v. Green, supra; contra Commonwealth v. Willis,
The state argues, alternatively, that even if the videotaping procedure infringed on the defendant’s right of confrontation, that infringement was slight and can be justified as necessary to combat the widespread sexual abuse of children that has become a growing public concern. See Connecticut Child Abuse Task Force, Final Report 5 (1986); H. Ward, C. Fletcher, N. Fuzesi & A. Sayer, Growing Up At Risk in Connecticut (1984) p. 56. The salient question for us to resolve is whether the procedures used in this case can be justified on this narrower ground.
As the state reminds us, the numerous exceptions to the rule against hearsay illustrate circumstances in which a defendant’s right of confrontation is not absolute. See generally C. McCormick, supra, §§ 245, 246. For example, certain hearsay testimony, such as a dying declaration; Mattox v. United States, supra, 244; State v. Onofrio, 179 Conn. 23, 43, 425 A.2d 560 (1979);
The state’s hearsay argument does not imply that the videotaped testimony in this case constituted hearsay.
A defendant’s right of physical confrontation is also demonstrably short of absolute when, by his own conduct, he has waived the right of confrontation either directly or indirectly, as by having waived his right to be present at trial. For most purposes, the state cannot avail itself of a claim of waiver absent an appropriate finding by the trial court. Our Practice Book § 968 also requires such a finding, which the trial court in this case did not make. The state argues nonetheless that the defendant constructively waived his right of confrontation by virtue of the threats he made against the minor victim, threats that were testified to by the victim herself and corroborated by the testimony of others.
A criminal defendant may waive his sixth amendment right of confrontation, which encompasses his right to
We conclude that the present record does not demonstrate the kind of conduct that constitutes waiver of a defendant’s right of physical confrontation. In the waiver cases cited above, the defendant was suspected of scheming to obstruct justice by tampering with a witness after the crime in question had occurred, the judicial proceedings against him had commenced, and the witness allegedly subjected to intimidation had given pretrial testimony incriminating the defendant. Here, by contrast, although the threats made by the defendant against the minor victim were similarly designed to conceal his wrongdoing, they were made during the commission of the very crimes with which he is charged. We acknowledge that threats such as those made by the defendant could potentially inhibit a witness, causing the witness to testify untruthfully or to refuse to testify at all. The constitutional right of confrontation would have little force, however, if we were to find an implied waiver of that right in every instance where the accused, in order to silence his victim, uttered threats during the commission of the crime for which he is on trial. The state therefore cannot prevail on its claim that the defendant waived his right of confrontation. Cf. State v. Sheppard, supra, 435-41.
Although we conclude that neither a hearsay argument nor a theory of waiver provides a persuasive analogy legitimating the videotaped procedure that was used in this case, we accept the proposition that other compelling state interests may justify dispensing with the constitutionally mandated requirement of physical confrontation. The state has proffered two possible interests as justification for an impairment of the defendant’s constitutional confrontation rights. First, the state contends that its interest in combating sexual abuse of children and minimizing the trauma experienced by child victims when they participate in the judicial process outweighs the interests served by constitutional confrontation requirements. Second, it maintains that videotaping the testimony of a minor victim outside the physical presence of the accused is necessary to encourage minor victims of sex crimes to come forward and provide accurate testimony. According to the state, these two interests justify the adoption of a per se rule, applicable to all prosecutions involving sexual abuse of children, which would allow the videotaping of the testimony of a minor victim outside the physical presence of the defendant.
Interests similar to those asserted by the state in this case were addressed by the United States Supreme Court, in an analogous context, in Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982). There, the United States Supreme Court declared that a state mandatory closure statute, which required “trial judges, at trials for specified sexual offenses involving a victim under the age of 18, to exclude the press and the general public from the courtroom during the testimony of that victim,” violated the first amendment right of the press and the general public to access to criminal trials. Id., 598, 602; see
The state’s first rationale rests on the interest of the state, acting as parens patriae, in safeguarding the welfare of children. The underlying assumption is that sexually abused children who testify in open court, in the presence of their alleged abusers, suffer severe trauma and are thereby victimized a second time by the judicial system itself. See J. Parker, “The Rights of Child Witnesses: Is the Court A Protector or Perpetrator?” 17 New Eng. L. Rev. 643, 647-56 (1982); G. Melton, “Psychological Issues in Child Victim’s Interaction with the Legal System,” 5 Victimology 274-75 (1980); D. Libai, “The Protection of the Child Victim of a Sexual Offense in the Criminal Justice System,” 15 Wayne L. Rev. 977,983-84 (1969). That rationale farther assumes that children are uniquely vulnerable witnesses who must be treated more delicately than adult witnesses in order to protect their psychological and emotional well-being. See L. Berliner & M. Barbieri, “The Testimony of the Child Victim of Sexual Assault,” 40 J. Soc. Issues 125, 128 (1984).
We acknowledge that protecting the physical and psychological well-being of children is a compelling state interest. New York v. Ferber, 458 U.S. 747, 756-57, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982); Globe
Just as the United States Supreme Court, in Globe Newspaper Co. v. Superior Court, supra, 609, rejected the generalization that sexually abused children invariably suffer traumatic injury by testifying in the presence of the press and the general public, we reject the generalization that these children will be traumatized by testifying in the presence of the accused. Given the lack of consensus among recognized authorities as to
The second rationale proffered by the state focuses on the difficulty of persuading minor victims to testify in sexual abuse cases and on the credibility of their testimony. The state claims that allowing minor victims to testify outside the physical presence of the accused encourages victims to cooperate with law enforcement authorities and, more importantly, enhances the reliability of their testimony. The defendant responds that the state’s claim regarding the enhanced reliability of testimony taken outside the physical presence of the accused is too speculative to justify depriving a criminal defendant of his constitutional right of confrontation on that basis.
We have decided to pursue a middle ground in order to accommodate the competing concerns of the state and the defendant. Taking as our point of departure the truth-enhancing goals of the confrontation clauses, we conclude that they should not be construed so strictly as to preclude the state, in particular circumstances, from establishing a compelling need to have a minor victim of tender years testify outside the physical presence of his or her alleged sexual assaulter. We cannot discount the possibility that such a witness might be intimidated, or for any number of reasons inhibited, by the presence of the accused. For example, a minor victim may refuse to testify or may distort his or her testimony because he or she has been threatened by the defendant or is overwhelmed by feelings of guilt. In such instances, affording the defendant the right of physical confrontation would undermine the purpose of confrontation, instead of advancing its truth-seeking
We conclude that, in criminal prosecutions involving the alleged sexual abuse of children of tender years, the practice of videotaping the testimony of a minor victim outside the physical presence of the defendant is, in appropriate circumstances, constitutionally permissible. Our holding that appropriate circumstances may warrant a departure from strict compliance with confrontation requirements does not, however, signal a relaxation of the underlying evidentiary requirement that appropriate circumstances be proven to exist. We emphatically reject the proposal of the state that, in every case allegedly involving the sexual abuse of children, we should presume that the credibility of a minor victim’s testimony will be improved by excluding the defendant from the witness room during that witness’s testimony. There is no constitutional justification for automatically depriving all criminal defendants of the right of physical confrontation during the videotaping of a minor victim’s testimony. We instead mandate a case-by-case analysis, whereby a trial court must balance the individual defendant’s right of confrontation against the interest of the state in obtaining reliable testimony from the particular minor victim in question. See Globe Newspaper Co. v. Superior Court, supra, 609 and n.25.
Under the approach we adopt today, a trial court must determine, at an evidentiary hearing, whether the state has demonstrated a compelling need for excluding the defendant from the witness room during the videotaping of a minor victim’s testimony.
The state maintains that, on the facts of this case, it proved a compelling need to exclude the defendant from the witness room during the videotaping of the minor victim’s testimony. At the hearing on its motion to videotape the minor victims, the state presented two clinical psychologists, both of whom are considered experts in the field of child sexual abuse. The first psychologist, Dr. Sidney Horowitz, never examined the
We express no opinion as to whether the evidence presently on the record is sufficient to satisfy the state’s burden of proving, by clear and convincing evidence, a compelling need to videotape the testimony of the minor victim outside the physical presence of the defendant. It is not the role of this court to make such a factual determination. It is in the sole province of the trier of fact to evaluate expert testimony, to assess its credibility, and to assign it a proper weight. Johnson v. Fuller, 190 Conn. 552, 556, 461 A.2d 988 (1983); State v. Gordon, 185 Conn. 402, 409, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982); State v. Perez, 182 Conn. 603, 610, 438 A.2d 1149 (1981). In the present circumstances, the trial court must determine what of the expert testimony it should reject or accept. Gorra Realty, Inc. v. Jetmore, 200 Conn. 151, 161, 510 A.2d
In summary, we hold that, in criminal prosecutions involving the alleged sexual abuse of children of tender years, videotaping the testimony of a minor victim outside the physical presence of the defendant is a constitutionally permissible practice if, and only if, the state proves by clear and convincing evidence a compelling need to exclude the defendant from the witness room during the victim’s testimony. This holding rests not only on the mandates of the federal constitution, but also on independent and adequate state grounds. U.S. Const., amends. VI, XIV; Conn. Const., art. I, § 8; see Michigan v. Long, 463 U.S. 1032, 1041, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983).
As the dissent acknowledges, this court has, on other occasions, expressly relied on a provision of the state constitution as an independent and adequate state ground in support of a decision, even where the language of the state constitutional provision essentially paralleled the language of the relevant federal constitutional provision. State v. Simms, 201 Conn. 395, 405 n.8, 518 A.2d 35 (1986); State v. Burge, 195 Conn. 232, 246 n.15, 487 A.2d 532 (1985); State v. Cohane, 193 Conn. 474, 498-99 n.19, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984); State v. Ferrell, 191 Conn. 37, 45 n.12, 463 A.2d 573 (1983). These precedents are rooted in a view of federalism that has received widespread recognition. In Michigan v. Long, supra, 1040, the Supreme Court of the United States, noting its respect for the independence of state courts, urged us to indicate expressly when a state decision was based on an independent and adequate state constitutional ground. Such an
We therefore remand this case to the trial court for an evidentiary hearing to determine whether there was a compelling need to videotape the testimony of the minor victim, T, outside the physical presence of the defendant. See State v. Gonzales, 186 Conn. 426, 435-36, 441 A.2d 852 (1982). If the court concludes that the state has not met its burden of proving such a need by clear and convincing evidence, the defendant is entitled to a new trial from which the videotaped testimony of T must be excluded. If the court concludes that the state has met its burden, the defendant’s conviction must stand, subject to any further appeal by the defendant to this court concerning the validity of the trial court’s ruling on this issue.
The case is remanded for further proceedings in accordance with this opinion.
In this opinion Healey and Glass, Js., concurred.
“[General Statutes] Sec. 53-21. injury or risk of injury to, or impairing MORALS OF, children. Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”
“[General Statutes] Sec. 53a-73a. sexual assault in the fourth degree: class a misdemeanor, (a) A person is guilty of sexual assault in the fourth degree when: (1) Such person intentionally subjects another person to sexual contact who is (A) under fifteen years of age, or (B) mentally defective or mentally incapacitated to the extent that he is unable to consent to such sexual contact, or (C) physically helpless, or (D) less than eighteen years old and the actor is such person’s guardian or otherwise responsible for the general supervision of such person’s welfare, or (E) in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over such other person; or (2) such person subjects another person to sexual contact without such other person’s consent, or (3) such person engages in sexual contact with an animal or dead body.
“(b) Sexual assault in the fourth degree is a class A misdemeanor.”
Although the court did not rely on General Statutes § 54-86g, because that statute did not become effective until after the initiation of this action, the videotaping procedure it approved is essentially the same procedure now prescribed by § 54-86g.
General Statutes § 54-86g provides: “testimony of victim of child ABUSE. COURT MAY ORDER TESTIMONY TAKEN OUTSIDE COURTROOM. PROCEDURE. (a) In any criminal prosecution of an offense involving assault, sexual assault or abuse of a child twelve years of age or younger, the court may, upon motion of the attorney for any party, order that the testimony of the child be taken in a room other than the courtroom in the presence and under the supervision of the trial judge hearing the matter and be televised by closed circuit equipment in the courtroom or recorded for later showing before the court. Only the judge, the attorneys for the defendant and for the state, persons necessary to operate the equipment and any person who would contribute to the welfare and well-being of the child may be present in the room with the child during his testimony. The attorneys and the judge may question the child. The defendant may observe and hear the testimony of the child and may consult with his attorney, but the court shall ensure that the child cannot hear or see the defendant.
“(b) If the court orders the testimony of a child to be taken under subsection (a) of this section, the child shall not be required to testify in court at the proceeding for which the testimony was taken.”
The younger witness, I, appeared at the competency hearing but refused to testify, despite the efforts of the trial court and the state’s attorney to elicit testimony from him.
The state’s motion for permission to videotape the evidence to be given by the children included a request for a videotaped hearing about the children’s competency to testify. The defendant has not challenged the propriety of videotaping a competency hearing outside his physical presence. In Stincer v. Commonwealth, 712 S.W.2d 939 (Ky. 1986), rev’d, 482 U.S. , 106 S. Ct. 2658, 96 L. Ed. 2d 631 (1987). The Supreme Court of the United States recently upheld the constitutionality of such a procedure under the sixth amendment to the United States constitution.
The sixth amendment to the United States constitution provides in relevant part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .”
The fourteenth amendment to the United States constitution provides in relevant part: “[N]or shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Article first, § 8, of the Connecticut constitution provides in relevant part: “In all criminal prosecutions, the accused shall have a right ... to be confronted by the witnesses against him . . . .”
The defendant effectively withdrew at oral argument his claim that his constitutional right of confrontation was also violated by virtue of the fact that the jury was not in the witness room observing the victim during her testimony.
“[Practice Book] Sec. 968. —continued presence not required
“The defendant must be present at the trial and at the sentencing hearing, but if he will be represented by counsel at the trial or sentencing hearing, the judicial authority may:
“(1) Excuse him from being present at the trial or a part therof or the sentencing hearing if he waives the right to be present;
“(2) Direct that the trial or a part thereof or the sentencing hearing be conducted in his absence if the judicial authority determines that he waived his right to be present; or
“(3) Direct that the trial or a part thereof be conducted in his absence if the judicial authority has justifiably excluded him from the courtroom because of his disruptive conduct, pursuant to Sec. 892.”
For purposes of this appeal, we rely upon the definition of “hearsay” set forth in Rule 801 of the Federal Rules of Evidence, which provides in part that “ ‘[h]earsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” (Emphasis added.) Fed. R. Evid. 801 (c); C. McCormick, Evidence (3d Ed. 1984) § 246. The rule against hearsay reflects the proposition that hearsay evidence is less reliable than sworn, in-court testimony because the declarant has not been subjected to the safeguards that advance the accuracy of a witness’s testimony: the declarant’s statements were not made under oath; he is not present at trial so that the jury may observe his demeanor and thereby judge his credibility; and he cannot be cross-examined. State v. Barlow, 177 Conn. 391, 396, 418 A.2d 46 (1979); Cherniske v. Jajer, 171 Conn. 372, 377, 370 A.2d 981 (1976); C. McCormick, supra, § 245, pp. 726-27.
Because the defendant’s right to be present at trial essentially derives from the confrontation clause, we consider his claim under Practice Book § 968 to be subsumed under his claim grounded on the federal and state constitutional confrontation clauses. United States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985); State v. Simino, 200 Conn. 113, 128-29, 509 A.2d 1039 (1986).
The state argues that, by virtue of the videotaping procedures employed here, the defendant was in fact “present” during the minor victim’s testimony. Affording the defendant an opportunity to view the proceedings from behind a one-way mirror, however, is not the equivalent of affording him a right to be present.
The defendant is entitled to be physically present in the courtroom during the evidentiary hearing on compelling need.
If, after an evidentiary hearing, the trial court finds a compelling need to exclude the defendant from the witness room during the taping of a minor victim’s testimony, defense counsel must be afforded a full opportunity, prior to the videotaping session, to meet privately with the victim in order to discuss the events in question.
Dissenting Opinion
joins, dissenting. I agree with the majority that this case is largely governed by the decision of the United States Supreme Court in Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982), which invalidated a Massachusetts statute mandating
The trial court in my judgment followed the criteria set forth in Globe Newspaper Co. in deciding that the defendant’s five year old daughter and four year old son should be permitted to testify on videotape outside the courtroom and without his visible presence. Although the videotaping order satisfied the procedures specified in General Statutes § 54-86g, which became effective on October 1, 1985, almost one month after completion of the trial, the court did not rely upon the general presumption of the statute that all sexual abuse victims less than thirteen years old are likely to be harmed if required to testify in a courtroom. The court heard the testimony of two clinical psychologists with expertise in child abuse cases concerning the “high probability that the child would be traumatized” if required to testify in the “threatening environment of the formal courtroom setting.” One of them had examined the children and had concluded that “for either of them to testify in person before the accused would be traumatizing.” The court expressly referred to this testimony in the memorandum granting the state’s
The majority opinion does not challenge the sufficiency of the evidence before the court to support the conclusion that the “psychological well-being” of the five year old child whose testimony was admitted at trial would be seriously harmed by the experience of testifying in a courtroom “eye-ball to eye-ball” with her father concerning the incidents when he abused her sexually. Nor is it maintained that the criteria for the “case-by-case” approach established by Globe Newspaper Co. were not satisfied. Instead, the opinion engrafts upon the Globe Newspaper Co. standard for balancing the likelihood of psychological harm to the child against the primacy of first amendment values a further requirement, that the state demonstrate by “clear and convincing evidence” that “the minor victim would be so intimidated, or otherwise inhibited, by the physical presence of the defendant that the trustworthiness of the victim’s testimony would be seriously called into question.” (Emphasis added.) Furthermore, this unprecedented standard for determining whether the testimony of a child sexual abuse victim may be videotaped is made the “primary focus of the trial court’s inquiry,” thus relegating to secondary status the risk of psychological harm to the child, which Globe Newspaper Co. singles out as the relevant consideration where first amendment infringements are involved.
The majority opinion offers little useful guidance concerning the showing to be made in the trial court necessary to establish that the “trustworthiness” of a child victim’s testimony would be suspect unless videotaped. Presumably the determination is to be made ordinar
I am not convinced that this result is required by the right of confrontation guaranteed to a defendant by the sixth amendment to our federal constitution. No impairment of the defendant’s right to cross-examine can be found in the procedures used by the court to videotape the testimony of the victim in this case. I disagree with the majority that “the right of physical confrontation is an equally fundamental component” of this sixth amendment right and that physical confrontation “enhances” the truth-seeking process where the witness is a child sexual abuse victim and the defendant is a family member, as in this case. In such instances, “eye-ball to eye-ball” presence of the defendant is likely to result not only in the traumatization of the child but also in the repression or distortion of his testimony. The legislative judgment embodied in § 54-86g, author
We shall never know whether the majority's reliance in this case upon the federal constitution is well founded or otherwise, because the majority opinion has precluded a more authoritative determination of that question by exercising the option given to state courts for avoiding review of their decisions by the United States Supreme Court in accordance with Michigan v. Long, 463 U.S. 1032, 1041, 105 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983). The express reliance upon the parallel right of confrontation contained in our state constitution as an independent ground for the decision apparently insulates from further review the conclusion of the majority that the federal right demands a “trustworthiness" determination as a prerequisite to videotaping a child sexual abuse victim’s testimony.
Although I have blinked at the practice in the past, I believe that it ill serves the development of the law in this country thus to remove decisions of state courts upon federal constitutional provisions from the scrutiny of our highest court. Where a state court rests its decision upon the federal constitution as an alternative to a state constitutional ground, that declaration of federal law should be subject to challenge in order to clarify whether a state constitutional amendment alone would be effective. Where there is no substantial textual difference between the federal and state constitutional provision, as is true of our parallel right of confrontation clauses, it would be far more appropriate, in the absence of applicable state precedent, to reserve consideration of the state constitutional provision until after a definitive resolution of the federal issues has been obtained. See State v. Opperman, 247 N.W.2d 673, 674-75 (S.D. 1976). The determination can then be made, if our assumptions regarding the federal counterpart prove incorrect, of whether we should adopt
The majority perceive in our state constitutional provision a greater emphasis upon the necessity of the visible presence of the defendant during the testimony of a witness than the federal constitutional right of confrontation may warrant. We have previously read these parallel provisions to afford the same protection to a criminal defendant. Although there is no significant textual difference between them, this court unquestionably has the power to construe article first, § 8, of our state constitution to provide greater protection to a defendant than required by the sixth amendment to the federal constitution. For the reasons given, however, I would defer the resolution of that issue until a more authoritative determination of the scope of federal protection can be obtained than this court can furnish. Nevertheless, since the majority has chosen to eschew the edification upon the federal issue that our highest court might provide, I am constrained to express my present view that our state constitutional right of confrontation does not require, any more than its federal counterpart, that the state’s interest in protecting children from pyschological harm be relegated to the status of a secondary consideration in deciding whether videotaping without the visible presence of a defendant is appropriate. That interest, where the court properly finds that a child sexual assault victim is likely to be seriously harmed by testifying before the defendant in a courtroom, is sufficient to outweigh the defend
Accordingly, I would affirm the judgment.