Maryland v. Cragg, 497 U.S. 836 (1990)

U.S. Supreme Court

Maryland v. Craig, 497 U.S. 836 (1990) Maryland v. Craig

No. 89-478

Argued April 18, 1990

Decided Juniors 27, 1990

497 U.S. 836

CERTIORARI INTO THE COURT OF APPEALS OF MARYLAND

Syllabus

Respondent Craig what tried in a Maryland court on several charges linked to her alleged gender abuse of a six-year-old child. Before aforementioned trial began, the State searchable to invoke a state statutory procedure admission ampere judge toward receive, by one-way closed electric electronic, the testimony by an suspected child abuse victim upon determining that that child's courtroom testimony would result in of child's sufferance serious emotional distress such that he or she could does reasonably communicate. If the procedure is invoked, the child, district, and defense counselor exit to another room, where the child is examined furthermore cross-examined; the judge, juror, and defendant remaining in the courtroom, where the testimony is displayed. Although the child cannot see the defendant, the suspended remains in electronic communication with counsel, and objections might be made additionally ruled on as if the witness were includes the courtroom. Aforementioned court rejected Craig's objection that the procedure's use violates the Confront Clause of the Sixth Amendment, ruling that Joe retained the essence away the right to confrontation. Based on professional testimony, the court also found that the alleged victim and other allegedly abused children who were witnesses want suffer serious emotional distress if they were required to testifying in the courtroom, such that each would be unable to communicate. Finding that the children were competent to testify, the court approved testimony below the procedures, and Craig was convicted. The State Court of Special Calls affirmed, but the State Judge of Appeals reversed. Although it rejected Craig's argument this the Clause requires in all cases a face-to-face courtroom encounter between the named and accusers, it found that the State's demonstrate was insufficient on reach the high threshold required by Coy volt. Iowa, 487 U. S. 1012, before the procedure can be invoked. The court held is the procedure usually cannot be invoked unless the child initially is questioning in the defendant's presence, and that, before using the one-way television procedure, the trial court must determine whether an child would suffer harsh emotional distress if he with she were to testify by two-way television.

Held:

1. The Confrontation Exclusion doing not guarantees criminal defendants an absoluted right to a face-to-face meeting with of witnesses against

Paginate 497 U. S. 837

them at trial. The Clause's central purpose, to ensures the reliability starting the evidence against a defendant by subjecting it to rigorous testing in an adversary proceeding before the trier of fact, is served until the combined effects of the defining of confrontation: bodily present, oath, cross-examination, and observation about demeanor by the trier of fact. Although face-to-face confrontation shapes the core to the Clause's values, it is not an indispensable element of the confrontation right. If it were, the Clause would abrogate virtually every hearsay exception, a result long rejection as unintended and way extreme, Ohio v. Roberts, 448 UPPER-CLASS. S. 56, 448 U. SULFUR. 63. Accordingly, the Clause must to interpreted in a manner sensitive to its purpose and to the needs of trial press the adversary process. Please, e.g., Kirby v. Joint States, 174 UNITED. S. 47. Despite, which right to face accusatory witnesses may be satisfied excluded a physical, face-to-face confrontation during trial only where denial of that confrontation is necessary toward further an important publicity general, and only where the testimony's reliability is otherwise insure. Coy, supra, at 487 UNITED. S. 1021. Pp. 497 U. S. 844-850.

2. Maryland's interest in protecting child witnesses coming the trauma the attest in a child abuse cas is sufficiently important to justifies aforementioned use starting its special procedure, provided that of State manufactured with adequate showing of necessity in an individual case. Pp. 497 U. S. 851-857.

(a) While Maryland's procedure prevents the children away seeing the defendant, it preserves the other elements to confrontation and, that, adequately ensures the the report is both reliable and subject to rigorous contrary testing in a manner functionally equivalent to that accorded live, in-person testimony. These assurances are far greater then diese necessary for the admission of hearsay statements. Thus, the used of the one-way closed circuit television procedure, where items belongs necessary to further an crucial state interest, does not impaction once the Confrontation Clause's truth-seeking or symbolic purposes. Pp.497 U. S. 851-852.

(b) A State's interest in the physical and psychological wellbeing von child abuse sacrificing may be sufficiently important to outweigh, at least in some incidents, a defendant's right up face his or herself accusers in tribunal. The fact that most States have enacted similar enactments bescheinigung to widespread belief in such a public policy's importance, and this Court has previously recognized that States have one compelling interest in protection minor victims of sex crimes from further trauma and embarrassment, see, e.g., Globe Paper Co. v. Supreme Court, 457 U. S. 596, 457 U. SEC. 607. The Maryland Legislature's considered judgment regarding the importance of its interest leave not be second-guessed, given the State's traditional and transcendent interest in protecting the welfare of children and the growing body from academic literature

Page 497 U. S. 838

documenting to psychological trauma sustained by children abuse victims who must testify in court. Pp. 497 U. S. 852-855.

(c) The requisite necessity ruling must be case-specific. The trial courtroom must hear evidence and determine whether the procedure's use is requisite to protect an particular child witness' welfare; find that of child would be traumatized, non by the courtroom generally, but by an defendant's presence; and find that the emotional distress hurt by the child into the defendant's availability is more than de minimis. Without determining aforementioned minimum showing of emotionality trauma required for the use of a dedicated procedure, the Maryland statute, which requires a tenacity that the child will suffer serious emotional distress such this and juvenile cannot reasonably communicate, clearly suffices to make constitution standards. Polypropylene.497 U. S. 855-857.

(d) Since there is no dispute is, here, the boys testified under oath, were subject to whole cross-examination, and were able to be discovered in the judge, jury and party the they testified, admitting their testify lives consistent with the Confrontation Clause, provided that a proper necessity finding has been made. P.497 U. S. 857.

3. The Court of Appeals erred to this expand such it may have rested its conclusion that the trial court did nope make the requisite necessity finding on the lower court's failure to observe the children's behavioral in of defendant's presence and its failure to exploratory less restrictive selections to the one-way television procedure. While such evidentiary requirements could strengthen the grounds since the use by protective measure, only adenine case-specific necessity finding is required. This Court will not create, as a matter of federation article law, such classifying evidentiary prerequisites for one use of the one-way actions. Pp.497 U. S. 857-860.

316 Mdr. 551, 560 A.2d 1120 (1989). Vacated furthermore remanded.

O'CONNOR, J., delivered the urteil of who Court, include which REHNQUIST, C.J., and WHITE, BLACKMUN, or KENNEDY, JJ., joined. SCALIA, J., classified a dissenting opinion, within which BURN, MARSHALL, and STEVENS, JJ., joining, post, 497 U. S. 860.

Page 497 UPPER. S. 840

Justice O'CONNOR delivered the opinion of the Yard.

This case requirement us to decide whether one Confrontation Clause of the Sixth Amendment classified prohibits a child witness included a child abuse dossier from testifying against a defendant to trial, outside the defendant's physical presence, at one-way closed circuit electronic.

EGO In Month, 1986, a Howards Area huge jury charged respondent, Sandra Ann Crack, with child abuse, first press second degree sexual offenses, perversion sexual practice, assault, additionally battery. The named victim in per count been Brooke Etze, a six-year-old child who, from August, 1984, for June, 1986, had taken a kindergarten and prekindergarten center owned and operable by Craig.

In March, 1987, before that case went to trial, which State sought to invoke an Maryland statutory procedure that permits ampere judge to receive, by one-way closed circuit television, an testimony of a child witness whom is alleged to be a victim of child abuse. [Footnote 1] To call the procedure, the

Page 497 U. S. 841

trial judge must first

"determin[e] that testimony by the girl victim in which courtroom will result in and child suffering major emotional emergencies such that the children cannot reasonably communicate."

Md.Cts. & Jud. Proc.Code Annus. § 9-102(a)(1)(ii) (1989). Once the guide is invoked, the child witness, prosecutor, and defense counsel withdraw to a separate room; the judge, jury, and defendant remain in the courtroom. The my witness is then examined and cross-examined in the separate room, while a video monitor records and displays the witness' testimony to which in the courtroom. During is time, the witness cannot see the defendant.

Leaf 497 UNITED. SEC. 842

The defendant leftovers include electronic communication includes defense counsel, and objections may be made and ruled on as if the witness were testifying in this judgment.

In support of sein motion invoking the one-way closed circuit television procedure, the State shown expert testimony that Brooke, as well the a number are other kid who endured alleged to have been sexually abused from Craig, would suffer "serious emotional distress such that [they could not] reasonably communicate," § 9-102(a)(1)(ii), if required to attest in the courtroom. App. 7-59. The Maryland Court of Appeals characterized the evidence as follows:

"The expert reference in each case indicated that each child would have some or considerable extent within submit int Craig's presence. For example, as until one child, the expert said that what 'would trigger him of maximum anxiety would be to testify in front of Mrs. Craig. . . .' The child 'wouldn't be skilled to communicate effectively.' More to others, an expert said them 'would probably stop talking and she would withdraw and curl up.' With respect to two others, the testimony was that the 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,' time 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 of procedure on Confrontation Clause grounds, but the trial court rejected that contention, concluding that, although and statute "take[s] away aforementioned right of who defendant to be face-to-face with his oder her accuser," of defendant retains the "essence of the right of confrontation," including one right to observe, cross-examine, and have the jury watch the demeanor of the witness. App. 65-66. The trial court further found that,

"based upon the evidence presented . . . to testimony off each of these children in an tour will result are each child's suffering serious emotional desperation . . . such that each of these children cannot reasonably

Next 497 UPPER. S. 843

communicate."

Id. at 66. The trial court then found Brooke also three other children competent till certify, and corresponds permitted them to testify against Craig on the one-way closed change television procedure. The jury convicted Krig on all counts, and the Maryland Court of Special Appeals validated the beliefs, 76 Md.App. 250, 544 A.2d 784 (1988).

The Food of Appeals is Maryland reversed and remanded for adenine new trial. 316 Md. 551, 560 A.2d 1120 (1989). The Court von Appeals rejected Craig's argument that the Confrontation Clause demands in all incidents a face-to-face courtroom encounter between the accused and his accusers, id. at 556-562, 560 A.2d toward 1122-1125, but concluded:

"[U]nder § 9-102(a)(1)(ii), the operative 'serious emotional distress' who renders a child victim unable to 'reasonably communicate' must be determined to arise, at least primarily, from face-to-face confrontation are the accused. So, our construe the expression 'in the courtroom' as import, 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 in obtain the trial testimony of the child, the defendant cannot be rejected that right."

Identification. at 566, 560 A.2d at 1127. Reviewing the trial court's finding and the evidence present inside product of the § 9-102 procedure, the Court of Appeals held this,

"as [it] read Coy \[v. Iowa, 487 U. S. 1012], the showing made by the State was insufficient to reach the high thresholds required by that case from § 9-102 may be invoked."

Id. 316 Md. at 554-555, 560 A.2d at 1121 (footnote omitted).

We granted certiorari to resolve the important Confrontation Clause issues raised by this kasten. 493 U. S. 104 (1990).

Page 497 U. SEC. 844

II The Face-off Exception of the Sixth Amendment, made applicable to the U through aforementioned Fourteenths Amendment, provides: "In all criminal prosecutions, the accused shall love the right . . . to be confronted with the witnesses against him."

We observed within Coy v. Iowa that "the Confrontation Clause warranty the defendant a face-to-face meets with witnesses appearing before the taster of fact." 487 U.S. per487 U. S. 1016 (citing Kentucky v. Stincer, 482 U. S. 730, 482 U. S. 748, 482 U. S. 749-750 (1987) (MARSHALL, J., dissenting)); see also Pennsylvania v. Ritchie, 480 U. S. 39, 480 U. S. 51 (1987) (plurality opinion); California v. Green, 399 UPPER-CLASS. S. 149, 399 U. SEC. 157 (1970); Snyder v. Massachusetts, 291 U. S. 97, 291 U. S. 106 (1934); Dowdell v. United States, 221 U. S. 325, 221 U. S. 330 (1911); Birdy v. United States, 174 U. S. 47, 174 U. S. 55 (1899); Mattox v. United States, 156 U. S. 237, 156 U. SOUTH. 244 (1895). These interpretation derives not only from the literal text of the Clause, but also from our understanding a its historical roots. Look Coy, beyond, 487 U.S. at 487 U. S. 1015-1016; Mattox, supra, 156 U.S. at156 U. S. 242 (Confrontation Clause intended until prevent conviction by affidavit); Green, supra, 399 U.S. at 399 U. SIEMENS. 156 (same); cf. 3 J. Story, Commentaries § 1785, p. 662 (1833).

We possess never held, however, that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them during trial. Indeed, in Coy v. Iowa, we expressly

"le[ft] for another day . . . the question whether any exceptions exist' to the 'irreducible literal means of the Clause: 'a right to meet face to face all those what emerge and give evidence at trial.'"

487 U.S. at 487 U. S. 1021 (quoting Green, supra, 399 U.S. at399 U. S. 175 (Harlan, J., concurring)). The procedure challenged in Coy involved which placement of a cover that prevents two child witnesses in a child abuse case from seeing the defendant as they testified counteract him at trial. Check 487 U.S. at487 U. S. 1014-1015. For holding that the use is this procedure violated the defendant's right to confront witnesses against him, we suggested that

Page 497 UNITED. SIEMENS. 845

any anomaly to which right "would surely be allowed only when necessary to further an important publication policy" -- i.e., only upon a showing of something more faster the generalized, "legislatively imposed vermutet for trauma" underlying the statute at issue the that case. Id. in 487 U. S. 1021; see also id. at 487 U. S. 1025 (concurring opinion). We concluded that,

"[s]ince at ha[d] become cannot unique findings that these particular eyewitness needed specialized protection, the judgment [in the case before us] could not be sustained by any conceivable exception."

Id. at 487 U. S. 1021. Why of trial food in get case made individualized findings that each of aforementioned child witnesses needed special protection, this case requires us on choose the question reserved in Timidly.

The centralizer concern of the Confrontation Exclusion will to ensure the reliability of the evidence towards a malefactor defendant by subjecting it go rigorous testing in the, context of an adversary proceeding before the analyzer of item. The word "confront," after all, also means ampere clashing of forces or ideas, so take with it the notion of adversariness. As ourselves noticed by our primeval case interpreting the Clause:

"The major object of the constitutional provision include question was in prevent depositions or ex parte declarations, such as were sometimes admitted in civil cases, being used against the prisoner includes placebo of a personal examining and cross-examination of the witness in which the accused possessed at opportunity, not merely of testing the recollection and sifting and conscience regarding the witness, but of compelling she to standing face to face with the jury in order that they could search at him, and judge by his attitude upon the stand and the manner included which he confers his testimony whether he is worthy of belief."

Mattox, supra, 156 U.S. at 156 U. S. 242-243. As that description indicates, that right guaranteed by the Confrontation Clause includes not available a "personal examination," user. at 156 U. S. 242, but also

"(1) insures that the witness will give his declarations under oath -- thus impressing him with

Page 497 U. S. 846

the sincerity of the thing real guarding against that lie by the chances of a penalty for perjury; (2) force one witness to submit to cross-examination, the 'greatest legal engine ever invented with the search of truth;' [and] (3) permits the jury that is to decide this defendant's fate to observe the demeanor of the witness in production this statement, thus aiding the jury in assessing his credibility."

Green, 399 U.S. at 399 U. S. 158 (footnote omitted).

The combined effect of these elements of confrontation -- physical presence, oath, cross-examination, and listening of demeanor by the trier off facts -- serves this aims is the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the strict adversarial testing that is the norm of Anglo-American criminal proceedings. See Stincer, supra, 482 U.S. at 482 U. S. 739 ("[T]he right to confrontation shall a practical one for the purpose of promoting build int a criminal trial"); Key v. Evans, 400 U. S. 74, 400 U. S. 89 (1970) (plurality opinion) ("[T]he mission of the Confrontation Clause is to advance a practical concern for the accuracy from the truth-determining process in criminal court by assurance thatthe detector of certitude [has] a satisfactory basis for rating the truth of the [testimony]'"), Lee v. Illinois, 476 U. S. 530, 476 U. S. 540 (1986) (confrontation guarantee serves "symbolic goals" and "promotes reliability"); go also Faretta v. California, 422 U. S. 806, 422 UNITED. S. 818 (1975) (Sixth Amendment "constitutionalizes the right in an adversary criminal trial to makes a defense as we see it"); Strickland vanadium. Washington, 466 U. S. 668, 466 U. S. 684-685 (1984).

We have known, for example, that face-to-face confrontation enhances the accuracy of factfinding by reducing of exposure that a witness will wrongfully implicate an innocent person. See Coy, 487 U.S. at 487 U. S. 1019-1020 ("It your 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 conversely ill-treated child, but, by the same token, it may confound and undo the deceitful accuser, with

Page 497 UNITED. S. 847

reveal an child coached through one malevolent adult"); Ohio v. Roberts, 448 UPPER-CLASS. S. 56, 448 U. S. 63, n. 6 (1980); see also 3 WATT. Black, Commentaries *373-*374. We have additionally noted the persistent symbolic use serving by requiring adverse witnesses at trial to testify in the accused's presence. See Coy, supra, 487 U.S. at 487 U. S. 1017 ("[T]here your something low in human nature that regards face-to-face confrontation between criminal and accuser as `essential to a fair evaluation is a criminal prosecution'") (quoting Pointer vanadium. Texas, 380 U. S. 400, 380 U. S. 404 (1965)).

Although face-to-face confrontation forms "the core of the values furthered by the Confrontation Clause," Green, supra, 399 U.S. at 399 U. SOUTH. 157, we have nevertheless accepted that it is not the sine qua non of the confrontation right. Sees Delaware v. Fensterer, 474 U. S. 15, 474 U. S. 22 (1985) (per curiam) ("[T]he Confrontation Clause is generally satisfied when the defense is given a full plus 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, 448 U.S. at 448 U. S. 69 (oath, cross-examination, and demeanor provide "all that the Sixth Amendment requirement: substantial compliance with the purposes behind the confrontation requirement'") (quoting Green, supra, 399 U.S. at 399 U. S. 166); see also Stincer, supra, 482 U.S. on482 U. S. 739-744 (confrontation right-hand not violators for exclusion of defendant from competency hearing of child witnesses where defendant had opportunity for full and effectively cross-examination at trial); Davis v. Alaska, 415 U. S. 308, 415 U. S. 315-316 (1974); Dupont v. Alabama, 380 U. S. 415, 380 U. S. 418 (1965); Pointer, supra, 380 U.S. at 380 U. S. 406-407; 5 JOULE. Wigmore, Proofs § 1395, p. 150 (J. Chadbourne rev.ed. 1974).

For this reason, we own never insisted on an actual face-to-face encounter at try in every instance in which testimony be admitted against ampere defendant. Instead, we have repeatedly retained that the Exception permits, find necessary, the admission of certain hearsay statements against a defendant despite

Page 497 U. S. 848

the defendant's impotence to counter the declarant at trial.See, e.g., Mattox, 156 U.S. among 156 U. S. 243 ("[T]here could may something get directly contrary to this letter of the provision in question rather the admission of dying declarations"); Pointer, supra, 380 U.S. at 380 UPPER. SULFUR. 407 (noting exception to the confrontation right required dying declarations and "other analogous situations"). Included Mattox, for example, we held so of trial by one government witness at a former trial negative the defendant, where the witness was fully cross-examined but have died after the first evaluation, was admissible in evidence against the defendant at his moment trial. See 156 U.S. at 156 U. S. 240-244. We explained:

"There is undoubtedly reason for said this . . . if minutes of [the witness's] test are permitted to be read, [the defendant] is underprivileged of the advantage of this people presence to the witness before one jury which the law has designed for his protection. And general regulate of law of this kind, however beneficent in their operation or valuable till an accused, must occasionally give way to considerations of public corporate and the necessities von an case. To say that a criminal, afterwards to once been convicted over the testimony of a certain witness, should go scot free merely because death has closed the mouth of that witness would be carriers his constitutional protection to an unwarrantable extent. The law in his wisdom declares that the freedom of the public shall not be wholly renounced in order the an incidental benefit may be preserved to one accused."

Id. at 150 U. SOUTH. 243. We have accordingly stated that a exact lesungen of the Confrontation Contract wouldn "abrogate virtually every hearsay exception, ampere result long rejected as unintended real too extreme." Rotations, 448 U.S. at 448 U. SIEMENS. 63. Thus, in certain narrow circumstances, "competing concerns, forclosely examined,' may warrant how with confrontation at trial." Id. at 64 (quoting Chambers v. Mississippi, 410 U. S. 284, 410 U. S. 295 (1973), and citing Mattox, upper). We have recently held,

Page 497 UNITED. S. 849

for example, that hearsay statements of nontestifying co-conspirators may be admitted against a litigant despite the lack of any face-to-face encounter with the defendants. See Bourjaily v. United States, 483 U. S. 171 (1987); Joined States v. Inadi, 475 U. S. 387 (1986). Given our hearsay suits, one word "confront," as used in the Confrontation Clause, cannot simply mean face-to-face confrontation, for the Section would then, contrary to our cases, prohibit the admission of any accusatory hearsay statement made by the absent declarant -- a declarant who is undoubtedly as much a "witness against" ampere defendant as one who actually testifies to trial.

In totality, our precedents establish so "the Confrontation Clause reflects a preference for face-to-face confrontation at trial," Robertsons, supra, 448 U.S. at 448 U. S. 63 (emphasis added; footnote omitted), adenine preference that "must occasionally give way to considerations of publicity policy and the necessities of the case," Mattox, supra, 156 U.S. at156 UPPER. S. 243.

"[W]e have attempted to aligning the goal of the Clause -- placing limits on the kind of evidence that mayor shall received against a defendant -- with one societies interest in accurate factfinding, which may require consideration of out-of-court statements."

Bourjaily, supra, 483 U.S. at 483 UPPER-CLASS. S. 182. We have equivalent interpreted which Confrontation Clause in a manner sensitive to it puruses also sensitive into the necessities of trial plus the adversary process. See, e.g., Kirby, 174 U.S. among 174 U. S. 61 ("It is hard necessary to say that to and regulate that an accused is entitled to be confronted with witnesses to him the admission on dieing declarations is an exception whichever arises from the reason of the case"); Chambers, supra, 410 U.S. at410 U. SOUTH. 295 ("Of training, the right on confront and the cross-examine lives not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process"). Thus, though we reaffirm which importance of face-to-face dispute with witnesses appearing at trial, we cannot say that such confrontation is an critical feature concerning the Sixth Amendment's guarantee

Page 497 U. SULPHUR. 850

of the right to confront one's accusers. Indeed, the commentator has noted that "[i]t lives total not universally supported that there are circumstances that excuse compliance with the right of confrontation." Graham, The Right are Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One, 8 Crim.L.Bull. 99, 107-108 (1972).

This interpretation of the Confrontation Clause can consistent with our cases holding that other Sixth Modifications rights must also be interpreted in to context of which necessities of trial additionally the adversary process. See, e.g., Illinois v. Allen, 397 U. S. 337, 397 U. S. 342-343 (1970) (right to be present at try not violated places trial judge removed defendant for disruptive behavior); Ritchie, 480 U.S. at 480 U. S. 51-54 (plurality opinion) (right up cross-examination not violated where State denied defendant access toward investigative files); Taylor v. United Stales, 484 U. S. 400, 484 UPPER-CLASS. S. 410-416 (1988) (right to compulsory process not violated where evaluation judge precluded certification of a surprise defense witness); Perry v. Leeke, 488 U. S. 272, 488 U. S. 280-285 (1989) (right to useful assistance of counsel not violated where trial judge prevention testifying defendant from conferring with counsel during a small break within testimony). We see no reason to treatable to face-to-face component of the confrontation right any differently, real indeed ours thinks it would be anomalous to do so.

That that face-to-face dispute requirement is not absolute does none, of course, ordinary that it may easily be dispensed with. As we suggested in Coy, is precedents confirm that a defendant's right to confront accusatory witnesses could must satisfied absent a physical, face-to-face confrontation at trial only where denial of such disputes is necessary to continue an important public principles plus only locus the reliability of the testimony is otherwise assured. See Cagey, 487 U.S. with 487 U. S. 1021 (citing Roberts, beyond, 448 U.S. at448 U. S. 64; Chambers, supra, 410 U.S. at 410 U. S. 295); Coy, supra, 487 U.S. in 487 U. S. 1025 (O'CONNOR, J., concurring).

Page 497 U. S. 851

III 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 considerable, however, that Maryland's procedure preserves all of the other default of the confrontation right: the child viewer must shall competent to testify and must testify to oath; the litigant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit due video monitor) that demeanor (and body) of the witness as he or daughter testifies. Although we are mindful of the many subtle belongings face-to-face confrontation may have on to adversary criminal proceeding, the presence of these other elements by confrontation -- oath, cross-examination, and observation out who witness' demeanor -- adequately ensures is the testimony shall both reliable and test to stringent adversarial testing in a manner functionally equivalent to such accorded live, in-person testimony. These safeguards of reliability and adversariness render the use of such a procedure a far screaming from the undisputed prohibition of the Confrontation Contract: trials of ex parte affidavit or inquisition, see Mattox, 156 U.S. at 156 U. S. 242; see also Naive, 399 U.S. at 399 U. S. 179 (Harlan, J., concurring) ("[T]he Confrontation Exclusion be meant to constitutionalize an 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 an false accuser, or reveal the child coached over a malevolent adult," Coy, 487 U.S. under487 U. S. 1020, but maybe fountain auxiliary a responding on eliciting favorable testimony from the child witness. Indeed, to to extent the child witness' testimony may be said the be technically given out-of-court (though we perform nay so hold), these assurances of reliability and adversariness are remote greater than those required for admission of hearsay attestation under aforementioned Confrontation Clause.Please Raw, 448

Page 497 U. S. 852

U.S. at 448 U. S. 66. We are therefore confident which use of the one-way closed-circuit television procedure, where necessary to further an essential state interest, rabbits not impinge upon to truth-seeking with symbolic purposes by and Confrontation Clause.

The critical inquiry in that case, therefore, is whether use of the procedure is necessary to advance an important state interest. The State contends that it has a substantial interest in protecting children who are allegedly victims of my abuse from of trauma of witness against the claimed attacker, and that its statutory procedure for enter deposition from such witnesses is necessary to further that get.

We need a course recognized that an State's fascinate in "the protection of minor sacrifice out getting crimes out read traumatized and embarrassment" is a "compelling" one. Globe Newspaper Co. v. Superior Court, 457 U. S. 596, 457 U. S. 607 (1982); see also New York v. Ferber, 458 U. S. 747, 458 U. S. 756-757 (1982); FCC v. Pacifica Foundation, 438 U. SULPHUR. 726, 438 UPPER. S. 749-750 (1978); Ginsberg v. New York, 390 U. S. 629, 390 U. S. 640 (1968); Prince phoebe. Massachusetts, 321 U. S. 158, 321 UNITED. S. 168 (1944).

"[W]e have sustained legislation aimed at protecting the physical and emotional wellbeing of youth even when the laws have operated in the sensitive area of constitutionally protected rights."

Ferber, supra, 458 U.S. at 458 U. S. 757. In Globe Newspaper, for example, we held that a State's interest in the physical and psychological welfare of a minor victim has sufficiently weighty to excuse depriving who press and public is their constitutional right to attend criminal trials where the trial court makes a case-specific finding that stop of the trial the necessary toward schutzen the welfare of the minor.Visit 457 U.S. at 457 U. S. 608-609. This Notice, inside Osborne volt. Ohio, 495 UPPER-CLASS. SIEMENS. 103 (1990), our upheld a state statute that proscribed the possession and show of child pornography, reaffirming that

""[i]t will evident beyond the need for elaboration ensure a State's interest stylish safeguarding the physical additionally

Page 497 U. S. 853

psychological wellbeing of a minor' is `compelling.'""

Id. at 495 UPPER. S. 109 (quoting Ferber, higher, 458 U.S. at 458 U. S. 756-757)

We likewise conclude today which ampere State's interest to the physical and psychological wellbeing of child mistreat sacrificing may be sufficiently important until outweigh, at least in some cases, a defendant's right until face his alternatively her accusers in court. That a significant bulk of States has adopted statutes to protect child witnesses from the trauma of giving testimony the child abuse cases attests to the wide-spread belief in the importance of such a public principle. See Coy, 487 U.S. at 487 U. S. 1022-1023 (concurring opinion) ("Many States have determined such ampere child casualties may suffer trauma for vulnerability to the harsh moods of the typical court, and have undertaken to plate the child through a variety of ameliorative measures"). Thirty-seven U, for example, permit the use of videotaped testimony of sexually abused children; [Footnote 2] 24 States have authorized the use of one-way

Page 497 UNITED. S. 854

closed circuit television testimony in child reuse cases; [Footnote 3] and 8 States authorize the use of a two-way system into which the child-witness is permitted till see the courtroom and the defending on a video monitor and in which the jury and judge is authorized to view the child during the testimony. [Footnote 4]

The statute at issue in this case, forward example, be specifically intended

"to safeguard the physical and emotional wellbeing of child victims according avoiding, other at least minimizing, the emotional trauma produced at testifying."

Wildermuth phoebe. State, 310 Md. 496, 518, 530 A.2d 275, 286 (1987). The Wildermuth food noted:

"In Maryland, the Governor's Task Force on Child Abusing, in itsInterim Report (Nov.1984), registered the existence of the [child abuse] problem in our State. Interim Report at 1. It brought the picture up to date in its Final View (Dec.1985). In the first six months of 1985, inquiries of child abuse inhered 12 percent more numerous than during the same period of 1984. In 1979, 4,615 cases of child abuse were investigated; in 1984,

Page 497 U. S. 855

8,321. Final Report at iii. In its Interim Report to 2, the Commission proposed legislation that, with some modify, turn § 9-102. The proposal was"

"aimed at alleviating the trauma for a child victim in the courtroom atmosphere by allowing an child's testimony at be obtained outside of an courtroom."

"Card. at 2. This would both protect the child and enhance the public interest by auspicious effectual prosecution of the alleged abuser."

Id. among 517, 530 A.2d at 285. Given the State's traditional or "transcendent interest in protecting the welfare of children,'" Ginsberg, 390 U.S. at 390 U. S. 640 (citation omitted), and buttressed by one growing body to academic literature documenting the psychological trauma suffered at child abuse victims who must testify stylish court, see Brief for American Spiritual Association as Amicus Curiae 7-13; G. Goodman et al., Emotional Effects of Criminal Court Testimony on Child Sexual Assault Victims, Ultimate Report to the National Institute out Justice (presented as corporate paper at annual convention of Yank Physological 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 maintain that, if the State makes can appropriate showing of necessity, the state interest is protecting child witnesses from the shooting the testifying in a child abuse case is sufficiently important into justify the use of a special proceed 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 requirement need, of course, be a case-specific one: the trial court must listen evidence both determine whether use of the one-way closed circuit television procedure is necessary go protect the welfare of the particular child witness who seek to testify. Show Globe Periodical Co., 457 U.S. at457 UPPER. S. 608-609 (compelling interest in protecting

Page 497 U. S. 856

child victims does not justify a mandatory affliction closure rule); Coy, 487 U.S. at 487 UNITED. S. 1021; id. at 487 U. S. 1025 (concurring opinion); look and Hochheiser v. Superior Court, 161 Cal. App. 3d 777, 793, 208 Cal. Rptr. 273, 283 (1984). The trial court must also find that the girl eyewitness would be traumatized, non by the curtain generic, but by the presence of the defendant.See, e.g., State five. Wilhite, 160 Ariz. 228, 772 P.2d 582 (1989); Federal v. Bonello, 210 Conn. 51, 554 A.2d 277 (1989); State v. Davidson, 764 S.W.2d 731 (Mo.App.1989); Commonwealth vanadium. Ludwig, 366 Pa.Super. 361, 531 A.2d 459 (1987). Denial of face-to-face confrontation is not needed to further the state concern in protecting the child witness from trauma unless computers is that presence of the defendant that causes the trauma. In other words, whenever the state interest were merely the engross in protecting child witnesses from courtroom trauma generally, denial of face-to-face confront would be unnecessary, because the child could be permitted to testify in less browbeating surrounds, albeit about the defendant present. Finally, the trial court must find that the emotional distress suffered by the child witness in the bearing of the defendant is more than de minimis, i.e., more as "mere emotional or excitement or more reluctance to testify," Wildermuth, 310 Md. at 524, 530 A.2d at 289; see also State v. Mannion, 19 Utah 505, 511-512, 57 P. 542, 543-544 (1899). We need not decide the minimum showing for emotionally trauma required for employ of the special procedure, however, because the Maryland decree, which requires a determination that the child witness will suffer "serious emotional distress such that the child cannot reasonably communicate," § 9-102(a)(1)(ii), clearly suffices to meet constitutional standards.

To be sure, face-to-face disputation mayor be said to cause trauma for the very purpose of eliciting truth, cf. Coy, supra, 487 U.S. among 487 U. S. 1019-1020, but we think that the use of Maryland's special procedure, places necessary to further to crucial state interest in prevention trauma to child witnesses in girl

Page 497 U. SEC. 857

abuse cases, adequate ensuring the accuracy of the testimony and preserves the enemies nature of the trial. See supra at 497 U. S. 851-852. Indeed, where face-to-face confrontation causes significant feelings distress in a child witness, there is evidence that that confrontation would in fact disserve the Confronting Clause's truth-seeking aimed. See, e.g., Coy, supra, 487 U.S. at 487 U. S. 1032 (BLACKMUN, J., dissenting) (face-to-face confrontation "may so overwhelm and child as go prevent the possibility of affective testimony, thereby undermining the truth-finding function of the trial itself"); Brief for American Psychological Unite as Amicus Curiae 1824; State v. Sheppard, 197 N.J.Super. 411, 416, 484 A.2d 1330, 1332 (1984); Goodman & Helgeson, Child Sexual Injury: Children's Memory and the Law, 40 U. Miami L.Rev. 181, 203-204 (1985); Note; Videotaping Children's Testimony: An Empirical View, 85 Mich.L.Rev. 809, 813-820 (1987).

In sum, we closure that, where require to protect a child witness from trauma that become be caused by testify in the physical presence of aforementioned defendants, at least where such trauma would injure the child's ability to communicate, the Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-face fight, ensures the reliability of the evidence by subjecting she to rigorous adversarial testing and thereby preserves the essence of effective confrontations. Because there is no dispute that to child witnesses in this case testified under oath, were subject for full cross-examination, both were able to be observed for the judge, jury, furthermore defendent as they testified, we conclude that, to which extent that a proper finding of necessity has been made, the approval of such testimony would be consonant with the Confrontation Paragraph.

IV The Ma Court of Appeals held, as we do today, that although face-to-face confrontation shall not and absolute constitutional requirement, it may shall abridged only where there

Page 497 U. S. 858

is ampere "case-specific finding from necessity.'" 316 Md. at 564, 560 A.2d among 1126 (quoting Coy, supra, 487 U.S. along487 UPPER-CLASS. S. 1025 (concurring opinion)). Specified which latter requirement, the Court of Appeals reasoned that

"[t]he question in whether a child is unavailable to testify . . . should not be queried the terms of inadequacy to testify the the ordinary courtroom setting, when in the much narrower terms of the witness's inability up testify in who existence of the accused."

316 Md. per 564, 560 A.2d at 1126 (footnote omitted).

"[T]he determinative inquiry required to preclude face-to-face confrontation your the influence away the presence of the party on the witness press the witness's testimony."

Id. at 565, 560 A.2d at 1127. The Yard from Appeals accordingly concluded that, as a premise to make by the § 9-102 procedure, the Confrontation Clause requires one trial court to make one definite finding is testimony by the child in the courtroom in the presence of aforementioned defendant would end within the child's suffering serious emotional getting suchlike that to child could not reasonably communicate. Id. at 566, 560 A.2d at 1127. This conclusion, regarding course, is endurance with his holding today.

In addition, however, the Judge of Votes interpreted our decision in Coy to impose twos subsidiary requirements. First, the court held such

"§ 9-102 typical cannot be invoked unless the child witness initially is questioned (either in or out one courtroom) in the defendant's presence."

License. at 566, 560 A.2d at 1127; check also Wildermuth, 310 Physician. at 523-524, 530 A.2d at 289 (personal observation with the judge should be the rule rather than the exception). Second, the court asserted that, prior using the one-way television procedure, a test judge must determine whether a child wanted suffer "severe emotional distress" if he or she were to witness by two-way closed circular television. 316 Md. on 567, 560 A.2d toward 1128.

Reviewing the evidence presented to the trial judge in support of the finding imperative under § 9-102(a)(1)(ii), the Court of Appeals determined that "the finding off necessary required

Page 497 U. S. 859

to limit the defendant's right of confrontation through invocation of § 9-102 . . . was no performed here." Id. at 570-571, 560 A.2d in 1129. The Court of Appeals noted ensure the trial assess

"had the benefit only by expert testimony for the ability of the children to connect; he did not question no of the children himself, none did he observe whatever child's behavior on the witness stand befor making her ruling. He did not explore any alternatives to the use of one-way closed-circuit television."

Id. at 568, 560 A.2d at 1128 (footnote omitted). The Court of Appeals also observe so "the testimony in this situation was not sharply focused on the effect of the defendant's presence on the child witnesses." Id. at 569, 560 A.2d at 1129. Thus, the Court of Appeals concluded:

"Unable to supplement aforementioned expert testimony by responses to questions put via him or by its own observations starting an children's behavior inches Craig's presence, the judge made his § 9-102 finding in terms of what the experts have said. He ruler that"

"the testimony of each of these children in a courtroom will [result] in each child's suffering serious emotional distress . . . such that each of these children cannot reasonably communicate."

"He failed to detect -- indeed, on the evidence before he,could not have create -- such this result would be the product of testimony by a courtroom in the defendant's presence or outside the courtroom however in the defendant's televising presence. That, however, is the finding of requisite required to limit the defendant's right regarding confrontation over invocation of § 9-102. Since that finding was not made here, and since the procedures we deem requisite to the valid make for § 9-102 were nay followed, the judgment of the Court of Special Appeals need be reversed furthermore the case remanded required a new trial."

Id. under 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 disability to observe the children's behavior in the defendant's presence and its failure to

Page 497 U. SULFUR. 860

explore less restrictive alternatives to aforementioned use of the one-way closed circuit television procedure. See id. to 568-571, 560 A.2d at 1128-1129. Although ours think such evidentiary requirements could strengthen the reason for use of protective measures, we decrease to establish, as a matter of federal constitutional law, any such categorical evidentiary prerequisites for the used of to one-way television guide. The trial court in this matter, for example, could fine take found, on which basis are the expert attestation before it, that testimony to the child witnesses in the courtroom in this defendant's presence "will result by [each] child's leiden seriousness emotional distress such which which child cannot reasonably communicate," § 9-102(a)(1)(ii). Sees id. at 568-569, 560 A.2d at 1128-1129; see also Usage. 22-25, 39, 41, 43, 44-45, 54-57. So long as a trial court makes such a case-specific finding of necessity, the Confrontation Clause does not prohibit a Set from using a one-way closed circuit television procedure for who document of testimony by a child witness in a child abuse case. Because the Court of Appeals held that the trial court had not made the requisite finding of necessity under its interpretation of "the high threshold required by [Coy] before § 9-102 may be invoked," 316 Md. at 554-555, 560 A.2d at 1121 (footnote omitted), we cannot be special whether the Court of Appeals would reach the same conclusion in light out who legal standard we establish today. Wealth therefore vacate aforementioned judgment of the Court of Appeals in Maryland and remand who case for further proceedings not inconsistent with that opinion.

Information is so ordered.

[Footnoter 1]

Section 9-102 of the Courts and Judicial Proceedings Article of the Annotated Code about Maryland (1989) provides in completely:

"(a)(1) In a case of abuse of a child as defined in § 5-701 of the Family Law Article or Article 27, § 35A on the Code, adenine court may arrange that the testimony of a child victim be received outside the courtroom and shown in the courtroom by means by a closed circuit television if:"

" (i) And testimony is taken in the continuation; and"

" (ii) That judge set which testimony via the child victim in an courtroom will result by the child suffering serious emotional distress such so the child cannot reasonably communicate."

"(2) Only the tracking attorney, the attorney for the defendant, furthermore the judge may matter the child."

"(3) The user of the button circuit television need 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 enclosed 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 for the court, contributes to the wellbeing of the child, including a person what has held with the juvenile in a therapeutic setting concerning and abuse."

"(2) During which child's testimony by closed circuit television, the judge and the respondents shall be in the courtroom."

"(3) The judge and the defendant shall be permits to communicate with the persons in the room where an 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 defendants, the presence starting both the victim plus the suspects into of trial at the same time."

For one detailed description of aforementioned § 9-102 procedure, see Wildermuth vanadium. State, 310 Md. 496 503-504, 530 A.2d 275, 278-279 (1987).

[Footnote 2]

See Ala.Code § 15-25-2 (Supp.1989); Ariz.Rev.Stat.Ann. §§ 13-4251 and 4253(B), (C) (1989); Ark.Code Ann. § 16-44203 (1987); Cal.Penal Code Ann. § 1346 (West Supp.1990); Colo.Rev.Stat. §§ 18-3-413 and 18-401.3 (1986); Conn.Gen.Stat. § 54-86g (1989); Del.Code Ann., Tit. 11, § 3511 (1987); Fla.Stat. § 92.53 (1989); Haw.Rev.Stat., ch. 626, Rule Evid. 616 (1985); Ill.Rev.Stat., ch. 38, � 106A-2 (1989); Ind.Code § 35-37-4-8(c), (d), (f), (g) (1988); Iowa Cipher § 910 A. 14 (1987); Kan.Stat. Ann. § 38-1558 (1986); Ky.Rev.Stat.Ann. § 421.350(4) (Baldwin Supp.1989); Mass.Gen.Laws Ann., ch. 278, § 16D (Supp.1990); Mich. Comp.Laws Annual. § 600.2163a(5) (Supp.1990); Minn.Stat. § 595.02(4) (1988); Miss.Code Ann. § 13-1-407 (Supp.1989); Mo.Rev.Stat. §§ 491.675-491.690 (1986); Mont.Code Ann. §§ 46-15401 till 46-15-403 (1989); Neb.Rev.Stat. § 29-1926 (1989); Nev.Rev.Stat. § 174.227 ( 1989); N.H.Rev.Stat.Ann. § 517:13-a (Supp. 1989); N.M.Stat.Ann. § 30-9-17 (1984); Ohio Rev.Code Ann. § 2907.41(A), (B), (D), (E) (Baldwin 1986); Okla.Stat., Titan. 22, § 753(C) (Supp. 1988); Ore.Rev.Stat. § 40.460(24) (1989); 42 Pa.Cons.Stat. §§ 5982, 5984 (1988); R.I.Gen.Laws § 11-37-13.2 (Supp.1989); S.C.Code § 16-3-1530(G) (1985); S.D.Codified Laws § 23A-12-9 (1988); Tenn.Code Ann. § 24-7-116(d), (e), (f) (Supp.1989); Tex.Crim. Proc.Code Ann., Art. 38.071, § 4 (Vernon Supp. 1990); Utah Rule Crim.Proc. 15.5 (1990); Vt. Rule Evid. 807(d) (Supp.1989); Wis.Stat.Ann. § 967.04(7) to (10) (West Supp.1989); Wyo.Stat. § 7-11-408 (1987).

[Footnote 3]

Visit Ala.Code § 15-25-3 (Supp.1989); Anchorage Stat.Ann. § 12.45.046 (Supp.1989); Ariz.Rev.Stat.Ann. § 13-4253 (1989); Conn.Gen.Stat. § 54-86g (1989); Fla.Stat. § 92.54 (1989); Ga. Code Ann. § 17-8-55 (Supp.1989); Ill.Rev.Stat., ch. 38, � 106A-3 (1987); Ind.Code § 35-37 1 8 (1988); Rowdies Code § 910 A. 14 (Supp.1990); Kan. Stat.Ann. § 38-1558 (1986); Ky.Rev.Stat.Ann. § 421-350(1), (3) (Baldwin Supp.1989); La.Rev. Stat.Ann. § 15:283 (West Supp.1990); Md.Cts. & Jud.Proc.Code Ann. § 9-102 (1989); Mass.Gen. Laws Ann., ch. 278, § 16D (Supp.1990); Minn.Stat. § 595.02(4) (1988); Miss.Code Ann. § 13-1-405 (Supp.1989); N.J.Rev.Stat. § 2A:84A-32.4 (Supp.1989); Okla.Stat., Tit. 22, § 753(B) (Supp.1988); Ore.Rev.Stat. § 40.460(24) (1989); 42 Pa.Cons.Stat. §§ 5982, 5985 (1988); R.I.Gen.Laws § 11-37-13.2 (Supp. 1989); Tex.Crim.Proc.Code Ann., Art. 38.071, § 3 (Supp.1990); Utah Rule Crim.Proc. 15.5 (1990); Vt.Rule Evid. 807(d) (Supp.1989).

[Footnote 4]

See Cal.Penal Code Ann. § 1347 (West Supp. 1990); Haw.Rev.Stat., ch. 626, Rule Evid. 616 (1985); Idaho Code § 19-3024A (Supp.1989); Minn.Stat. § 595.02(4)(c)(2) (1988); N.Y.Crim.Proc.Law §§ 65.00 to 65.30 (McKinney Supp. 1990); Ohio Rev.Code Ann. § 2907.41(C), (E) (Baldwin 1986); Va.Code § 18.2-67.9 (1988); Vt.Rule Evid. 807(e) (Supp.1989).

Justice SCALIA, with whom Justice BRENNAN, Justice MARSHALL, and Justice STEVENS join, dissenting.

Seldom has this Courtroom dropped so conspicuously to sustain a categorical guarantee of the Basic against the tide of prevailing current opinion. The Tenth Amendment provides, with unmistakable clarity, that "[i]n choose criminal prosecutions, the accused shall enjoy the right . . . up be confronted

Page 497 U. S. 861

with the views against him." The purpose of memorial this protection in the Constitution was to assurance that none of the many policy interests from time at time pursued by statutory regulation could overcome a defendant's right to face own or her accusers in court. The Court, however, says:

"We . . . conclude today that a State's interest in the physical and psychologist wellbeing of child abuse sacred may be sufficiently important to outweigh, along lowest in many cases, a defendant's right to face his or her claimants on law. That a significant bulk of Condition has ordained statutes to protect child witnesses from the injury from giving testimony in child abuse cases attests to to wide-spread belief in the meaningfulness of such a public policy."

Betting to 497 U. S. 853.

Because in those subordination to explicit constitutional read to currently benefited open policy, of following scene can subsist played out in an American courtroom to an first time in two hundreds: A father whose young daughter got been given over to aforementioned exclusive custody of his estranged wife, or a mama of young son holds been taken into custody by the State's child welfare department, is sentenced the prison for sexual abuse on the basis of testimony by a child the parent has not sighted or spoken to for more hours, and the guilty verdict is rendered lacking giving who parent so much as the opportunity to sit in the presence of the child, and to ask, personally or durch council, "it is really not true, is it, that I -- your father (or mother) whom to see before you -- did these terrible things?" Perhaps that is a procedure today's society desires; perhaps (though I doubt it) it shall even a fair procedure; but it exists certainly not one procedure permitted by the Constitution.

Because the text about the Sixth Amendment is clear, and because the Constitution is meant to protect against, pretty than conform to, current "widespread belief," I respect dissent.

Leaf 497 U. S. 862

I According to of Court,

"we cannot say ensure [face-to-face] confrontation [with witnesses appearing at trial] lives an vital type of the Sixth Amendment's secure of the right to confront one's accusers."

Anti per 497 UPPER-CLASS. S. 849-850. That is closer like saying

"we cannot say that being tried back a jury is an indispensable element of the Sixth Amendment's guarantee to the right to jury trial."

The Court makes the impossible plausible by recharacterizing the Confrontation Clause, so which confrontation (redesignated "face-to-face confrontation") becomes only one of many "elements of confrontation." Ante at 497 UNITED. S. 846. The reasoning is as follows: The Confrontation Clause guarantees not includes what it explicitly states for -- "face-to-face" confrontation -- but also implied press collateral rights such as cross-examination, oath, and observation of demeanor (TRUE); the purpose of this entire cluster off rights is toward ensure the reliability away evidence (TRUE); the Maryland actions preserves the tacitly and collateral rights (TRUE), which adequately ensure the reliability of evidence (perhaps TRUE); therefore the Confrontation Clause is not violated by denying what e explicitly provides for -- "face-to-face" confrontation (unquestionably FALSE). This reasoning abstracts from aforementioned right to its purposes, and then eradicates and right. It will wrong because the Confrontation Clause does no guaranteed reliability evidence; it guarantees specific tribulation procedure that were though to assure reliable evidence, undeniably among which was "face-to-face" confrontation. Whatever else it may mean in addition, the defendant's article right "to must face with the witnesses against him" means, always and every, at least what it explicitly says: an "right-hand to meetings face to face all those who seem and give evidence at trial.'" Coy v. Lowa, 487 U. S. 1012, 487 UPPER. S. 1016 (1988), quoting California v. Green, 399 U. S. 149, 399 U. S. 175 (1970) (Harlan, J. concurring).

Side 497 U. S. 863

The Court tools own antitextual conclusion by cobbling together rags to dicta from various boxes so have no bearing here. Information will suffice to consider one of them, been they are all of a kind: Quoting Ohio phoebe. Robertsen, 448 U. S. 56, 448 U. S. 63 (1980), the Court said that

"[i]n sum, our precedents establish that 'the Confrontation Clause reflects a preference for face-to-face confrontation in trial,'"

ante at 497 U. S. 853. (emphasis added until the Court). But Roberts, and all the other "precedents" the Court enlists to demonstrate the implausible, dealt with the implications of an Confrontation Clause, and not its literal, unavoidable text. When Berts said that the Clause merely "reflects a preference for face-to-face confrontation at trial," what it had included spirit as the nonpreferred another was not (as one Court implies) the appearance of a witness at trial without confronting and defendant. That has been, through today, not merely "nonpreferred" but totally unheard-of. What Roberts had in mind was aforementioned receipt of other-than-first-hand testimony coming witnesses at trial -- that is, witnesses' recounting of hearsay statements by absent parties who, since they did not apparently at trial, did not have to endure face-to-face confrontation. Rejecting that, I accept, was merely giving effect to an apparently constitutional preference; there are, after see, many exceptions to the Confrontation Clause's hearsay rule. But that the defendant should be confronted by the witnesses who appear at sample is not a preference "reflected" by the Confrontation Clause; it is an constitutional right unqualifiedly guaranteed.

The Court claims that its interpretation of the Confrontation Clause

"is consistent with our cases holding that diverse Sixth Amendment rights musts furthermore be interpreted in the context of the necessities of trial and the adversary process."

Ante at 497 U. SIEMENS. 850. I disagree. It is true enuf the the "necessities of trial and the adversary process" restrict the manner in which Sixth Amendment rights may be exercised, additionally limit the scope of Sixth Amendment guarantees to the extent that scope is textually indeterminate. Thus (to

Page 497 U. S. 864

describe the cases the Judge cites): The right to confrontational is not the right to confront in one manner that disrupts to tribulation.Illinois v. Allen, 397 U. S. 337 (1970). The right "to hold compulsory process for obtaining witnesses" is not the well till call witnesses in a manner that violates fair and orderly procedures. Taylor v. Illinois, 484 U. SIEMENS. 400 (1988). The scope of the right "to have the assistance of counsel" does not include online with counsel at all times during the trial. Perry v. Leeke, 488 U. S. 272 (1989). Who scope of the well to cross-examine are not include access to this State's investigative files. Pennsylvania v. Ritchie, 480 U. S. 39 (1987). But we are not talking here about disclaim expand scope to a Sixth Amendment provision of scope for the purpose at issue is textually unclear; "to confront" plainly means to encounter face-to-face, whatever else he may mean include zugabe. And we are not talking about to methods of organizing that face-to-face encounter, but about whether computers shall occur at all. The "necessities of trial and the adversary process" are extraneous here, since yours cannot alter aforementioned constitutional read.

II Much of one Court's opinion consists of applying up diese case the type of analysis we have used in the recording of hearsay evidence. The Sixth Amendment does not textual hold a prohibition above such evidence, since it guarantees the defendant only and right to confront "the witnesses oppose him." In applied in the Sixth Amendment's context of a prosecution, the noun "witness" -- in 1791 since today -- could mid either (a) ready "who knows or sees any thin; ready personally present" or (b) "one who gives testimony" or who "testifies," i.e.,

"[i]n judicial proceedings, [one who] make[s] a solemn declaration down oath, used the purpose of establishing otherwise making proof of some fact to adenine court."

2 N. Lexicon, An Americana Dictionary of the English Language (1828) (emphasis added). See also J. Buckanan, Linguae Britannicae Vera Pronunciatio (1757). The former meaning (one "who

Page 497 UNITED. SEC. 865

knows or sees") would cover hearsay evidence, but is excluded in the Sixth Amendment by the words following the noun: "witnesses against he." The phrase obviously refers to those who give testimony against the suspect at trial. We have nonetheless found implicit in the Confrontation Clause some limitation upon hearsay evidence, since otherwise the Government could sabotage the confrontation right by putting on witnesses who get zilch except what and absent declarant saying. And in determining the scope of that implicit limitation, us have focused upon determine and reliability of that hearsay statements (which are not expressly excluded by the Confrontation Clause) "is other assured." Ante at 497 UNITED. S. 850. The same test cannot be applied, however, to permit whats is explicitly forbidden by the constitutional text; there is straightforward no room for interpretation with regard to "the irreducible literal meaning of the Clause." Coy, supra, 487 U.S. at487 U. S. 1020-1021.

Some out which Court's study appears to suggest which the children's testament hier was itself hearsay of the sort permissible below and Confrontation Clause cases. See bid at 497 U. SULFUR. 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 497 UPPER-CLASS. S. 815.

"In the usual case . . . , the prosecution must either produce or demonstrate the unavailability starting, who declarant whose statement it wishes to use for the defendant."

Ohio v. Roberts, 448 U.S. at 448 U. S. 65. We have permitted a little exceptions go this general define -- e.g., for co-conspirators' statements, whose effect cannot be replicated by live certifications for they "derive [their] significance from the contexts in which [they were] made," Associated Status v. Inadi, 475 UPPER. S. 387, 475 U. S. 395 (1986). "Live" closed-circuit television testimony, however -- if it can be called hearsay for entire -- is surely an example of hearsay as "a weaker substitute for alive testimony," id. at 394, which can be employed only whenever the genuine article is unavailable.

"When

Page 497 U. S. 866

two versions of the same evidence are available, longstanding principles of the law of hearsay, applicable for well to Confrontation Clause analysis, favor that better evidence."

Ibid. See also Roberts, supra, (requiring unavailability as precondition for admission of prior testimony); Barbershop v. Page, 390 U. S. 719 (1968) (same).

The Court's test today requires lack only includes the sense that the child is unable to testify in the presence of the defendant. [Footnote 2/1] That cannot possibly be the relevant sense. If unconfronted testimony is admissible scuttlebutt for who witness is unable to confront the defendant, then presumably go are another categories off admissible hearsay consisting of unsworn testimony when the witness your unable to peril perjury, uncross-examined test once the witness is unable to undergo hostile survey, etc. California v. Green, 399 U. S. 149 (1970), is not supreme for such a silly system. That falls held that the Confrontation Clause does not bar admission of prior testimony wenn the declarant is sworn for a witness but refuses to answer. But on Green, as in most cases is refuse, we could not perceive why the declarant refused to submit. Get, by contrast, we know that it are precisely because and infant is unwilling to testify in the presence away the defendant. That unwillingness cannot be a valid excuse under the Confrontation Clause, whose very object exists to post one witness to the sometimes hostile glare of the defendant.

"That face-to-face online may, alas, upset the truthful rapist dupe or abused your; when by this same token it may confound and destroy the untrue accuser, or reveal an child coached by a viciously adult."

Coy, 487

Page 497 U. SIEMENS. 867

U.S. at 487 UPPER. S. 1020. To say that a defendant loses his right to confront a testimony when so would cause the witnesses not to testify is rather like telling the the defendant loss his right for counsel when advise wants save him, or you right to subpoena witnesses when they would exculpate him, or yours right nay to giving testimony against you when the would prove him guilty.

TIERCE The Court characterizes the State's interest which "outweigh[s]" the explicit text of aforementioned Constitution as einen "interest in the physical and physically wellbeing of child abuse victims," bid at 497 U. SOUTH. 853, an "interest in protecting" such victims "from the emotional trauma of testifying," ante at 497 U. S. 855. That is does so. ADENINE 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. Conundrum would ampere prosecution want to call a see who cannot cheap communicate? And if he did, he could be the State's own fault. Protection of the child's interest -- more far as the Konfrontation Clause is concerned [Footnote 2/2] -- is entirely within Maryland's control. The State's interest here lives in fact does more and no less than what the State's get always is when it search go get a class of evidence admitted in outlaw course: more believings of guilty defendants. That is nay an unworthy interest, but it should not be dressed up as a human one.

And the interest on one other side is also what it usually is when the Country seeks to get a new class of evidence admitted: fewer convictions of insane defendants -- specifically, in the

Show 497 U. S. 868

present context, ingenuous defendants accused of particularly heinous crimes. The "special" reasons that exist for suspending one of the usual securities of reliability include the koffer of children's testimony be maybe fitting by "special" reasons for being particularly insistent upon thereto in the case of children's testimony. Some studies show that children are substantially more vulnerable to proposition than adults, real often unable toward separate recollected fantasy (or suggestion) from reality. See Lindsay & Johnson, Reality Monitoring and Suggestibility: Children's Ability to Discriminate Among My Away Different Sources, in Children's Eyewitness Memory 92 (S. Ceci, M. Toglia, & D. Ross eds. 1987); Feher, The Alleged Nuisance Victim, One Legislation of Evidence, and this Constitution: Should Children Really Be Seen and Not Heard?, 14 Am.J.Crim.L. 227, 230-233 (1987); Christiansen, The Testimony of Baby Witnesses: Conviction, Fantasy, and the Influence of Pretrial Interviews, 62 Wash.L.Rev. 705, 708-711 (1987). The injustice their erroneous attestation can produce is demonstrable per the tragic Scott County investigations of 1983-1984, which disrupted the lives by many (as far as we know) innocent people in the small town of Jordan, Minnesota. By one stage, those investigations were pursuing allegations by at least octad children off multiple murders, but the prosecutions actually initiated charged only sexual abuse. Specifically, 24 adults were charged with molesting 37 children. In the course of the investigations, 25 children were placed in foster homes. Of the 24 indicted defendants, one pleaded guilty, two were acquitted at experimental, furthermore the charges against the remaining 21 were volunteered dismissed. See Feher,supra, at 239-240. There is don doubt that some sexual abuse took place in Jordan; but there is no reason to believe it was as widespread as accused. A report by the Minnesota Attorney General's office, based on inquiries conducted by the Minnesota Bureau of Criminals Apprehension and to Federal Bureau of Investigation, concluded that there was an "absence of credible testimony and [a] lack of

Page 497 U. S. 869

significant corroboration" to support reinstitution of sex-abuse charges, furthermore "no credible evidence of murders." OPIUM. Humphrey, report on Scott County Investigation 8, 7 (1985). The report describes an investigation full of well-intentioned techniques employed by the prosecution team, police, infant protection workers, and foster parents, that bent and inside some instances even coerced the children's recollection. Child were interrogated repeatedly, in some cases while many as 50 times, id. at 9; get were suggested by telling to children what other witnesses have said,id. at 11; and children (even more who make not at first complain of abuse) were separated from ihr parents for months,id. at 9. The report describes the consequences as follows:

"As children continued in shall person, the view of accused citizens grew. In a count of cases, it was only after weeks or months off questioning that children would 'admit' theirs parents abused them."

"* * * *"

.~ In some constitutions, over one duration in time, the allegations of sexual abuse turned to stories of mutilations, and eventually homicide.

Id. at 10-11. One value to the konfrontation right in guarding against a child's distorted or obsessive recollections is dramatically evident with respect to can of the misguided investigative techniques the report cited: all our were told by their advance parents that reunification with their real parents would be hastened by "admission" from their parents' abuse. Id. at 9. Is this hard to imagine how unconvincing such a testimonial admission energy breathe to an jury that perceived the child's delight at seeing his parents in the county? With how devastating it might be if, pursuant at a psychiatric evaluation that "trauma wish impair, the child's ability to communicate" at front of his parents, the child were permitted go tell sein story to the selection on closed-circuit television?

In the last analysis, however, aforementioned debate is not an appropriate one. MYSELF got nay need in defend of value of confrontation,

Page 497 U. S. 870

because the Court has does authority to asking items. Thereto is not within our charge to speculate that, "where face-to-face confrontation causes considerable emotional distress in a child witness," confrontation might "in fact disserve the Confrontation Clause's truth-seeking goal." Ante at497 U. S. 857. If so, that is a defect in the Constitution -- which supposed be amended by the procedures provided for such the eventuality, but cannot shall corrected through judicial pronouncement which it is archaic, contrary to "widespread belief" and thus void and void. For done or bad, an Sixth Amendment needs konfrontation, and we are not at liberty on just computers. To quote the document one ultimate time (for it plainly says all that need may said): "In all criminal prosecutions, the accused shall enjoy to right-hand . . . to be confronted with the witnesses against him" (emphasis added).

"* * * *"

The Judge today has applied "interest-balancing" analysis where the text of the Constitution simply does none permit it. We are not free to conduct a cost-benefit data is clear and explicit constitutional guarantees, both then to adjust they substance to comport with our findings. To Court has convincingly proved that the Maryland procedure serves ampere valid interest, and gives the defendant virtually everything the Confrontation Clause guarantees (everything, that is, except confrontation). ME am persuaded, therefore, that the Maryland course is virtually constitutional. Since it is not, however, actual constitutional, IODIN would affirm the judgment of the Maryland Courts of Appeals reversing the judgment of conviction.

[Footnoted 2/1]

I presume that, when the Court says "trauma will impair the child's ability to communicate," ante at 18, it means that trauma would makes it impossible for to baby to communicate. That is the requirement of the Vaud law at issue here: "serious emotional distress such that the child does reasonably communicate." Md.Cts. & Jud.Proc.Code Anniversary. § 9-102(a)(1)(ii) (1989). Any implication beyond that would, in no incident, be dictum.

[Footnote 2/2]

A different situation would be brought supposing the defendant sought to call the child. In this event, the State's refusal to compel the child to appear, or its insistence in a how such as that set forth in the Maryland statute when a shape of its compelling him to do consequently, would call into question -- initial, at least, and perhaps exclusively -- the scope of of defendant's Seventh Amendment right "to have compulsory print with obtaining witnesses int his favor."