|Maryland v. Craig
316 Md. 551, 560 A.2d 1120 (1989). Vacated and remanded.
[ O'Connor ]
[ Scalia ]
Maryland v. Craig
CERTIORARI TO THE COURT OF APPEALS OF MARYLAND
Justice O'CONNOR delivered the opinion of the Court.
This case requires us to decide whether the Confrontation Clause of the Sixth Amendment categorically prohibits a child witness in a child abuse case from testifying against a defendant at trial, outside the defendant's physical presence, by one-way closed circuit television.
In October, 1986, a Howard County grand jury charged respondent, Sandra Ann Craig, with child abuse, first and second degree sexual offenses, perverted sexual practice, assault, and battery. The named victim in each count was Brooke Etze, a six-year-old child who, from August, 1984, to June, 1986, had attended a kindergarten and prekindergarten center owned and operated by Craig.
In March, 1987, before the case went to trial, the State sought to invoke a Maryland statutory procedure that permits a judge to receive, by one-way closed circuit television, the testimony of a child witness who is alleged to be a victim of child abuse. [n1] To invoke the procedure, the [p841] trial judge must first
determin[e] that testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate.
Md.Cts. & Jud. Proc.Code Ann. § 9-102(a)(1)(ii) (1989). Once the procedure is invoked, the child witness, prosecutor, and defense counsel withdraw to a separate room; the judge, jury, and defendant remain in the courtroom. The child witness is then examined and cross-examined in the separate room, while a video monitor records and displays the witness' testimony to those in the courtroom. During this time, the witness cannot see the defendant. [p842] The defendant remains in electronic communication with defense counsel, and objections may be made and ruled on as if the witness were testifying in the courtroom.
In support of its motion invoking the one-way closed circuit television procedure, the State presented expert testimony that Brooke, as well as a number of other children who were alleged to have been sexually abused by Craig, would suffer "serious emotional distress such that [they could not] reasonably communicate," § 9-102(a)(1)(ii), if required to testify in the courtroom. App. 7-59. The Maryland Court of Appeals characterized the evidence as follows:
The expert testimony in each case suggested that each child would have some or considerable difficulty in testifying in Craig's presence. For example, as to one child, the expert said that what "would cause him the most anxiety would be to testify in front of Mrs. Craig. . . ." The child "wouldn't be able to communicate effectively." As to another, an expert said she "would probably stop talking and she would withdraw and curl up." With respect to two others, the testimony was that one would "become highly agitated, that he may refuse to talk, or, if he did talk, that he would choose his subject regardless of the questions," while the other would "become extremely timid and unwilling to talk."
316 Md. 551, 568-569, 560 A.2d 1120, 1128-1129 (1989). Craig objected to the use of the procedure on Confrontation Clause grounds, but the trial court rejected that contention, concluding that, although the statute "take[s] away the right of the defendant to be face-to-face with his or her accuser," the defendant retains the "essence of the right of confrontation," including the right to observe, cross-examine, and have the jury view the demeanor of the witness. App. 65-66. The trial court further found that,
based upon the evidence presented . . . the testimony of each of these children in a courtroom will result in each child's suffering serious emotional distress . . . such that each of these children cannot reasonably [p843] communicate.
Id. at 66. The trial court then found Brooke and three other children competent to testify, and accordingly permitted them to testify against Craig via the one-way closed circuit television procedure. The jury convicted Craig on all counts, and the Maryland Court of Special Appeals affirmed the convictions, 76 Md.App. 250, 544 A.2d 784 (1988).
The Court of Appeals of Maryland reversed and remanded for a new trial. 316 Md. 551, 560 A.2d 1120 (1989). The Court of Appeals rejected Craig's argument that the Confrontation Clause requires in all cases a face-to-face courtroom encounter between the accused and his accusers, id. at 556-562, 560 A.2d at 1122-1125, but concluded:
[U]nder § 9-102(a)(1)(ii), the operative "serious emotional distress" which renders a child victim unable to "reasonably communicate" must be determined to arise, at least primarily, from face-to-face confrontation with the defendant. Thus, we construe the phrase "in the courtroom" as meaning, for sixth amendment and [state constitution] confrontation purposes, "in the courtroom in the presence of the defendant." Unless prevention of "eyeball-to-eyeball" confrontation is necessary to obtain the trial testimony of the child, the defendant cannot be denied that right.
Id. at 566, 560 A.2d at 1127. Reviewing the trial court's finding and the evidence presented in support of the § 9-102 procedure, the Court of Appeals held that,
as [it] read Coy [v. Iowa, 487 U.S. 1012], the showing made by the State was insufficient to reach the high threshold required by that case before § 9-102 may be invoked.
Id. 316 Md. at 554-555, 560 A.2d at 1121 (footnote omitted).
The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him."
We observed in Coy v. Iowa that "the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact." 487 U.S. at 1016 (citing Kentucky v. Stincer, 482 U.S. 730, 748, 749-750 (1987) (MARSHALL, J., dissenting)); see also Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987) (plurality opinion); California v. Green, 399 U.S. 149, 157 (1970); Snyder v. Massachusetts, 291 U.S. 97, 106 (1934); Dowdell v. United States, 221 U.S. 325, 330 (1911); Kirby v. United States, 174 U.S. 47, 55 (1899); Mattox v. United States, 156 U.S. 237, 244 (1895). This interpretation derives not only from the literal text of the Clause, but also from our understanding of its historical roots. See Coy, supra, 487 U.S. at 1015-1016; Mattox, supra, 156 U.S. at 242 (Confrontation Clause intended to prevent conviction by affidavit); Green, supra, 399 U.S. at 156 (same); cf. 3 J. Story, Commentaries § 1785, p. 662 (1833).
We have never held, however, that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial. Indeed, in Coy v. Iowa, we expressly
le[ft] for another day . . . the question whether any exceptions exist" to the "irreducible literal meaning of the Clause: "a right to meet face to face all those who appear and give evidence at trial."
487 U.S. at 1021 (quoting Green, supra, 399 U.S. at 175 (Harlan, J., concurring)). The procedure challenged in Coy involved the placement of a screen that prevented two child witnesses in a child abuse case from seeing the defendant as they testified against him at trial. See 487 U.S. at 1014-1015. In holding that the use of this procedure violated the defendant's right to confront witnesses against him, we suggested that [p845] any exception to the right "would surely be allowed only when necessary to further an important public policy" -- i.e., only upon a showing of something more than the generalized, "legislatively imposed presumption of trauma" underlying the statute at issue in that case. Id. at 1021; see also id. at 1025 (concurring opinion). We concluded that,
[s]ince there ha[d] been no individualized findings that these particular witnesses needed special protection, the judgment [in the case before us] could not be sustained by any conceivable exception.
Id. at 1021. Because the trial court in this case made individualized findings that each of the child witnesses needed special protection, this case requires us to decide the question reserved in Coy.
The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the, context of an adversary proceeding before the trier of fact. The word "confront," after all, also means a clashing of forces or ideas, thus carrying with it the notion of adversariness. As we noted in our earliest case interpreting the Clause:
The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.
Mattox, supra, 156 U.S. at 242-243. As this description indicates, the right guaranteed by the Confrontation Clause includes not only a "personal examination," id. at 242, but also
(1) insures that the witness will give his statements under oath -- thus impressing him with [p846] the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the "greatest legal engine ever invented for the discovery of truth;" [and] (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.
Green, 399 U.S. at 158 (footnote omitted).
The combined effect of these elements of confrontation -- physical presence, oath, cross-examination, and observation of demeanor by the trier of fact -- serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings. See Stincer, supra, 482 U.S. at 739 ("[T]he right to confrontation is a functional one for the purpose of promoting reliability in a criminal trial"); Dutton v. Evans, 400 U.S. 74, 89 (1970) (plurality opinion) ("[T]he mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that ‘the trier of fact [has] a satisfactory basis for evaluating the truth of the [testimony]'"), Lee v. Illinois, 476 U.S. 530, 540 (1986) (confrontation guarantee serves "symbolic goals" and "promotes reliability"); see also Faretta v. California, 422 U.S. 806, 818 (1975) (Sixth Amendment "constitutionalizes the right in an adversary criminal trial to make a defense as we know it"); Strickland v. Washington, 466 U.S. 668, 684-685 (1984).
We have recognized, for example, that face-to-face confrontation enhances the accuracy of factfinding by reducing the risk that a witness will wrongfully implicate an innocent person. See Coy, 487 U.S. at 1019-1020 ("It is always more difficult to tell a lie about a person ‘to his face' than ‘behind his back.' . . . That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child, but, by the same token, it may confound and undo the false accuser, or [p847] reveal the child coached by a malevolent adult"); Ohio v. Roberts, 448 U.S. 56, 63, n. 6 (1980); see also 3 W. Blackstone, Commentaries *373-*374. We have also noted the strong symbolic purpose served by requiring adverse witnesses at trial to testify in the accused's presence. See Coy, supra, 487 U.S. at 1017 ("[T]here is something deep in human nature that regards face-to-face confrontation between accused and accuser as ‘essential to a fair trial in a criminal prosecution'") (quoting Pointer v. Texas, 380 U.S. 400, 404 (1965)).
Although face-to-face confrontation forms "the core of the values furthered by the Confrontation Clause," Green, supra, 399 U.S. at 157, we have nevertheless recognized that it is not the sine qua non of the confrontation right. See Delaware v. Fensterer, 474 U.S. 15, 22 (1985) (per curiam) ("[T]he Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose [testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony"); Roberts, supra, 448 U.S. at 69 (oath, cross-examination, and demeanor provide "all that the Sixth Amendment demands: ‘substantial compliance with the purposes behind the confrontation requirement'") (quoting Green, supra, 399 U.S. at 166); see also Stincer, supra, 482 U.S. at 739-744 (confrontation right not violated by exclusion of defendant from competency hearing of child witnesses where defendant had opportunity for full and effective cross-examination at trial); Davis v. Alaska, 415 U.S. 308, 315-316 (1974); Douglas v. Alabama, 380 U.S. 415, 418 (1965); Pointer, supra, 380 U.S. at 406-407; 5 J. Wigmore, Evidence § 1395, p. 150 (J. Chadbourne rev.ed. 1974).
For this reason, we have never insisted on an actual face-to-face encounter at trial in every instance in which testimony is admitted against a defendant. Instead, we have repeatedly held that the Clause permits, where necessary, the admission of certain hearsay statements against a defendant despite [p848] the defendant's inability to confront the declarant at trial. See, e.g., Mattox, 156 U.S. at 243 ("[T]here could be nothing more directly contrary to the letter of the provision in question than the admission of dying declarations"); Pointer, supra, 380 U.S. at 407 (noting exceptions to the confrontation right for dying declarations and "other analogous situations"). In Mattox, for example, we held that the testimony of a government witness at a former trial against the defendant, where the witness was fully cross-examined but had died after the first trial, was admissible in evidence against the defendant at his second trial. See 156 U.S. at 240-244. We explained:
There is doubtless reason for saying that . . . if notes of [the witness's] testimony are permitted to be read, [the defendant] is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness would be carrying his constitutional protection to an unwarrantable extent. The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused.
Id. at 243. We have accordingly stated that a literal reading of the Confrontation Clause would "abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme." Roberts, 448 U.S. at 63. Thus, in certain narrow circumstances, "competing interests, if ‘closely examined,' may warrant dispensing with confrontation at trial." Id. at 64 (quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973), and citing Mattox, supra). We have recently held, [p849] for example, that hearsay statements of nontestifying co-conspirators may be admitted against a defendant despite the lack of any face-to-face encounter with the accused. See Bourjaily v. United States, 483 U.S. 171 (1987); United States v. Inadi, 475 U.S. 387 (1986). Given our hearsay cases, the word "confront," as used in the Confrontation Clause, cannot simply mean face-to-face confrontation, for the Clause would then, contrary to our cases, prohibit the admission of any accusatory hearsay statement made by an absent declarant -- a declarant who is undoubtedly as much a "witness against" a defendant as one who actually testifies at trial.
In sum, our precedents establish that "the Confrontation Clause reflects a preference for face-to-face confrontation at trial," Roberts, supra, 448 U.S. at 63 (emphasis added; footnote omitted), a preference that "must occasionally give way to considerations of public policy and the necessities of the case," Mattox, supra, 156 U.S. at 243.
[W]e have attempted to harmonize the goal of the Clause -- placing limits on the kind of evidence that may be received against a defendant -- with a societal interest in accurate factfinding, which may require consideration of out-of-court statements.
Bourjaily, supra, 483 U.S. at 182. We have accordingly interpreted the Confrontation Clause in a manner sensitive to its purposes and sensitive to the necessities of trial and the adversary process. See, e.g., Kirby, 174 U.S. at 61 ("It is scarcely necessary to say that to the rule that an accused is entitled to be confronted with witnesses against him the admission of dying declarations is an exception which arises from the necessity of the case"); Chambers, supra, 410 U.S. at 295 ("Of course, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process"). Thus, though we reaffirm the importance of face-to-face confrontation with witnesses appearing at trial, we cannot say that such confrontation is an indispensable element of the Sixth Amendment's guarantee [p850] of the right to confront one's accusers. Indeed, one commentator has noted that "[i]t is all but universally assumed that there are circumstances that excuse compliance with the right of confrontation." Graham, The Right of 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 is consistent with our cases holding that other Sixth Amendment rights must also be interpreted in the context of the necessities of trial and the adversary process. See, e.g., Illinois v. Allen, 397 U.S. 337, 342-343 (1970) (right to be present at trial not violated where trial judge removed defendant for disruptive behavior); Ritchie, 480 U.S. at 51-54 (plurality opinion) (right to cross-examination not violated where State denied defendant access to investigative files); Taylor v. United Stales, 484 U.S. 400, 410-416 (1988) (right to compulsory process not violated where trial judge precluded testimony of a surprise defense witness); Perry v. Leeke, 488 U.S. 272, 280-285 (1989) (right to effective assistance of counsel not violated where trial judge prevented testifying defendant from conferring with counsel during a short break in testimony). We see no reason to treat the face-to-face component of the confrontation right any differently, and indeed we think it would be anomalous to do so.
That the face-to-face confrontation requirement is not absolute does not, of course, mean that it may easily be dispensed with. As we suggested in Coy, our precedents confirm that a defendant's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured. See Coy, 487 U.S. at 1021 (citing Roberts, supra, 448 U.S. at 64; Chambers, supra, 410 U.S. at 295); Coy, supra, 487 U.S. at 1025 (O'CONNOR, J., concurring). [p851]
Maryland's statutory procedure, when invoked, prevents a child witness from seeing the defendant as he or she testifies against the defendant at trial. We find it significant, however, that Maryland's procedure preserves all of the other elements of the confrontation right: the child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies. Although we are mindful of the many subtle effects face-to-face confrontation may have on an adversary criminal proceeding, the presence of these other elements of confrontation -- oath, cross-examination, and observation of the witness' demeanor -- adequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony. These safeguards of reliability and adversariness render the use of such a procedure a far cry from the undisputed prohibition of the Confrontation Clause: trial by ex parte affidavit or inquisition, see Mattox, 156 U.S. at 242; see also Green, 399 U.S. at 179 (Harlan, J., concurring) ("[T]he Confrontation Clause was meant to constitutionalize a barrier against flagrant abuses, trials by anonymous accusers, and absentee witnesses"). Rather, we think these elements of effective confrontation not only permit a defendant to "confound and undo the false accuser, or reveal the child coached by a malevolent adult," Coy, 487 U.S. at 1020, but may well aid a defendant in eliciting favorable testimony from the child witness. Indeed, to the extent the child witness' testimony may be said to be technically given out-of-court (though we do not so hold), these assurances of reliability and adversariness are far greater than those required for admission of hearsay testimony under the Confrontation Clause. See Roberts, 448 [p852] U.S. at 66. We are therefore confident that use of the one-way closed-circuit television procedure, where necessary to further an important state interest, does not impinge upon the truth-seeking or symbolic purposes of the Confrontation Clause.
The critical inquiry in this case, therefore, is whether use of the procedure is necessary to further an important state interest. The State contends that it has a substantial interest in protecting children who are allegedly victims of child abuse from the trauma of testifying against the alleged perpetrator, and that its statutory procedure for receiving testimony from such witnesses is necessary to further that interest.
We have of course recognized that a State's interest in "the protection of minor victims of sex crimes from further trauma and embarrassment" is a "compelling" one. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982); see also New York v. Ferber, 458 U.S. 747, 756-757 (1982); FCC v. Pacifica Foundation, 438 U.S. 726, 749-750 (1978); Ginsberg v. New York, 390 U.S. 629, 640 (1968); Prince v. Massachusetts, 321 U.S. 158, 168 (1944).
[W]e have sustained legislation aimed at protecting the physical and emotional wellbeing of youth even when the laws have operated in the sensitive area of constitutionally protected rights.
Ferber, supra, 458 U.S. at 757. In Globe Newspaper, for example, we held that a State's interest in the physical and psychological wellbeing of a minor victim was sufficiently weighty to justify depriving the press and public of their constitutional right to attend criminal trials where the trial court makes a case-specific finding that closure of the trial is necessary to protect the welfare of the minor. See 457 U.S. at 608-609. This Term, in Osborne v. Ohio, 495 U.S. 103 (1990), we upheld a state statute that proscribed the possession and viewing of child pornography, reaffirming that
"[i]t is evident beyond the need for elaboration that a State's interest in ‘safeguarding the physical and [p853] psychological wellbeing of a minor' is ‘compelling.'"
Id. at 109 (quoting Ferber, supra, 458 U.S. at 756-757)
We likewise conclude today that a State's interest in the physical and psychological wellbeing of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court. That a significant majority of States has enacted statutes to protect child witnesses from the trauma of giving testimony in child abuse cases attests to the wide-spread belief in the importance of such a public policy. See Coy, 487 U.S. at 1022-1023 (concurring opinion) ("Many States have determined that a child victim may suffer trauma from exposure to the harsh atmosphere of the typical courtroom, and have undertaken to shield the child through a variety of ameliorative measures"). Thirty-seven States, for example, permit the use of videotaped testimony of sexually abused children; [n2] 24 States have authorized the use of one-way [p854] closed circuit television testimony in child abuse cases; [n3] and 8 States authorize the use of a two-way system in which the child-witness is permitted to see the courtroom and the defendant on a video monitor and in which the jury and judge is permitted to view the child during the testimony. [n4]
The statute at issue in this case, for example, was specifically intended
to safeguard the physical and psychological wellbeing of child victims by avoiding, or at least minimizing, the emotional trauma produced by testifying.
Wildermuth v. State, 310 Md. 496, 518, 530 A.2d 275, 286 (1987). The Wildermuth court noted:
In Maryland, the Governor's Task Force on Child Abuse, in its Interim Report (Nov.1984), documented the existence of the [child abuse] problem in our State. Interim Report at 1. It brought the picture up to date in its Final Report (Dec.1985). In the first six months of 1985, investigations of child abuse were 12 percent more numerous than during the same period of 1984. In 1979, 4,615 cases of child abuse were investigated; in 1984, [p855] 8,321. Final Report at iii. In its Interim Report at 2, the Commission proposed legislation that, with some changes, became § 9-102. The proposal was
aimed at alleviating the trauma to a child victim in the courtroom atmosphere by allowing the child's testimony to be obtained outside of the courtroom.
Id. at 2. This would both protect the child and enhance the public interest by encouraging effective prosecution of the alleged abuser.
Id. at 517, 530 A.2d at 285. Given the State's traditional and "‘transcendent interest in protecting the welfare of children,'" Ginsberg, 390 U.S. at 640 (citation omitted), and buttressed by the growing body of academic literature documenting the psychological trauma suffered by child abuse victims who must testify in court, see Brief for American Psychological Association as Amicus Curiae 7-13; G. Goodman et al., Emotional Effects of Criminal Court Testimony on Child Sexual Assault Victims, Final Report to the National Institute of Justice (presented as conference paper at annual convention of American Psychological Assn., Aug. 1989), we will not second-guess the considered judgment of the Maryland Legislature regarding the importance of its interest in protecting child abuse victims from the emotional trauma of testifying. Accordingly, we hold that, if the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant.
The requisite finding of necessity must, of course, be a case-specific one: the trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify. See Globe Newspaper Co., 457 U.S. at 608-609 (compelling interest in protecting [p856] child victims does not justify a mandatory trial closure rule); Coy, 487 U.S. at 1021; id. at 1025 (concurring opinion); see also Hochheiser v. Superior Court, 161 Cal.App.3d 777, 793, 208 Cal. Rptr. 273, 283 (1984). The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. See, e.g., State v. Wilhite, 160 Ariz. 228, 772 P.2d 582 (1989); State v. Bonello, 210 Conn. 51, 554 A.2d 277 (1989); State v. Davidson, 764 S.W.2d 731 (Mo.App.1989); Commonwealth v. Ludwig, 366 Pa.Super. 361, 531 A.2d 459 (1987). Denial of face-to-face confrontation is not needed to further the state interest in protecting the child witness from trauma unless it is the presence of the defendant that causes the trauma. In other words, if the state interest were merely the interest in protecting child witnesses from courtroom trauma generally, denial of face-to-face confrontation would be unnecessary, because the child could be permitted to testify in less intimidating surroundings, albeit with the defendant present. Finally, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i.e., more than "mere nervousness or excitement or some 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 of emotional trauma required for use of the special procedure, however, because the Maryland statute, 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 confrontation may be said to cause trauma for the very purpose of eliciting truth, cf. Coy, supra, 487 U.S. at 1019-1020, but we think that the use of Maryland's special procedure, where necessary to further the important state interest in preventing trauma to child witnesses in child [p857] abuse cases, adequately ensures the accuracy of the testimony and preserves the adversary nature of the trial. See supra at 851-852. Indeed, where face-to-face confrontation causes significant emotional distress in a child witness, there is evidence that such confrontation would in fact disserve the Confrontation Clause's truth-seeking goal. See, e.g., Coy, supra, 487 U.S. at 1032 (BLACKMUN, J., dissenting) (face-to-face confrontation "may so overwhelm the child as to prevent the possibility of effective testimony, thereby undermining the truth-finding function of the trial itself"); Brief for American Psychological Association as Amicus Curiae 1824; State v. Sheppard, 197 N.J.Super. 411, 416, 484 A.2d 1330, 1332 (1984); Goodman & Helgeson, Child Sexual Assault: 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 conclude that, where necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child's ability to communicate, the Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation. Because there is no dispute that the child witnesses in this case testified under oath, were subject to full cross-examination, and were able to be observed by the judge, jury, and defendant as they testified, we conclude that, to the extent that a proper finding of necessity has been made, the admission of such testimony would be consonant with the Confrontation Clause.
The Maryland Court of Appeals held, as we do today, that although face-to-face confrontation is not an absolute constitutional requirement, it may be abridged only where there [p858] is a "‘case-specific finding of necessity.'" 316 Md. at 564, 560 A.2d at 1126 (quoting Coy, supra, 487 U.S. at 1025 (concurring opinion)). Given this latter requirement, the Court of Appeals reasoned that
[t]he question of whether a child is unavailable to testify . . . should not be asked in terms of inability to testify in the ordinary courtroom setting, but in the much narrower terms of the witness's inability to testify in the presence of the accused.
316 Md. at 564, 560 A.2d at 1126 (footnote omitted).
[T]he determinative inquiry required to preclude face-to-face confrontation is the effect of the presence of the defendant on the witness or the witness's testimony.
Id. at 565, 560 A.2d at 1127. The Court of Appeals accordingly concluded that, as a prerequisite to use of the § 9-102 procedure, the Confrontation Clause requires the trial court to make a specific finding that testimony by the child in the courtroom in the presence of the defendant would result in the child's suffering serious emotional distress such that the child could not reasonably communicate. Id. at 566, 560 A.2d at 1127. This conclusion, of course, is consistent with our holding today.
In addition, however, the Court of Appeals interpreted our decision in Coy to impose two subsidiary requirements. First, the court held that
§ 9-102 ordinarily cannot be invoked unless the child witness initially is questioned (either in or outside the courtroom) in the defendant's presence.
Id. at 566, 560 A.2d at 1127; see also Wildermuth, 310 Md. at 523-524, 530 A.2d at 289 (personal observation by the judge should be the rule rather than the exception). Second, the court asserted that, before using the one-way television procedure, a trial judge must determine whether a child would suffer "severe emotional distress" if he or she were to testify by two-way closed circuit television. 316 Md. at 567, 560 A.2d at 1128.
Reviewing the evidence presented to the trial court in support of the finding required under § 9-102(a)(1)(ii), the Court of Appeals determined that "the finding of necessity required [p859] to limit the defendant's right of confrontation through invocation of § 9-102 . . . was not made here." Id. at 570-571, 560 A.2d at 1129. The Court of Appeals noted that the trial judge
had the benefit only of expert testimony on the ability of the children to communicate; he did not question any of the children himself, nor did he observe any child's behavior on the witness stand before making his 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 observed that "the testimony in this case 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 the expert testimony by responses to questions put by him or by his own observations of the children's behavior in Craig's presence, the judge made his § 9-102 finding in terms of what the experts had said. He ruled that
the testimony of each of these children in a courtroom will [result] in each child's suffering serious emotional distress . . . such that each of these children cannot reasonably communicate.
He failed to find -- indeed, on the evidence before him, could not have found -- that this result would be the product of testimony in a courtroom in the defendant's presence or outside the courtroom but in the defendant's televised presence. That, however, is the finding of necessity required to limit the defendant's right of confrontation through invocation of § 9-102. Since that finding was not made here, and since the procedures we deem requisite to the valid use of § 9-102 were not followed, the judgment of the Court of Special Appeals must be reversed and the case remanded for a new trial.
Id. at 570-571, 560 A.2d at 1129 (emphasis added).
The Court of Appeals appears to have rested its conclusion at least in part on the trial court's failure to observe the children's behavior in the defendant's presence and its failure to [p860] explore less restrictive alternatives to the use of the one-way closed circuit television procedure. See id. at 568-571, 560 A.2d at 1128-1129. Although we think such evidentiary requirements could strengthen the grounds for use of protective measures, we decline to establish, as a matter of federal constitutional law, any such categorical evidentiary prerequisites for the use of the one-way television procedure. The trial court in this case, for example, could well have found, on the basis of the expert testimony before it, that testimony by the child witnesses in the courtroom in the defendant's presence "will result in [each] child's suffering serious emotional distress such that the child cannot reasonably communicate," § 9-102(a)(1)(ii). See id. at 568-569, 560 A.2d at 1128-1129; see also App. 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 State from using a one-way closed circuit television procedure for the receipt 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 certain whether the Court of Appeals would reach the same conclusion in light of the legal standard we establish today. We therefore vacate the judgment of the Court of Appeals of Maryland and remand the case for further proceedings not inconsistent with this opinion.
It is so ordered.
1. Section 9-102 of the Courts and Judicial Proceedings Article of the Annotated Code of Maryland (1989) provides in full:
(a)(1) In a case of abuse of a child as defined in § 5-701 of the Family Law Article or Article 27, § 35A of the Code, a court may order that the testimony of a child victim be taken outside the courtroom and shown in the courtroom by means of a closed circuit television if:
(i) The testimony is taken during the proceeding; and
(ii) The judge determines that testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate.
(2) Only the prosecuting attorney, the attorney for the defendant, and the judge may question the child.
(3) The operators of the closed circuit television shall make every effort to be unobtrusive.
(b)(1) Only the following persons may be in the room with the child when the child testifies by closed circuit television:
(i) The prosecuting attorney;
(ii) The attorney for the defendant;
(iii) The operators of the closed circuit television equipment; and
(iv) Unless the defendant objects, any person whose presence, in the opinion of the court, contributes to the wellbeing of the child, including a person who has dealt with the child in a therapeutic setting concerning the abuse.
(2) During the child's testimony by closed circuit television, the judge and the defendant shall be in the courtroom.
(3) The judge and the defendant shall be allowed to communicate with the persons in the room where the child is testifying by any appropriate electronic method.
(c) The provisions of this section do not apply if the defendant is an attorney pro se.
(d) This section may not be interpreted to preclude, for purposes of identification of a defendant, the presence of both the victim and the defendant in the courtroom at the same time.
For a detailed description of the § 9-102 procedure, see Wildermuth v. State, 310 Md. 496 503-504, 530 A.2d 275, 278-279 (1987).
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 Code § 910A.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 Ann. § 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 to 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., Tit. 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).
3. See Ala.Code § 15-25-3 (Supp.1989); Alaska 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); Iowa Code § 910A.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).
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).