Coronado, Tommy

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0644-10

TOMMY CORONADO, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

FROM THE SEVENTH COURT OF APPEALS

DEAF SMITH COUNTY

Cochran, J., delivered the opinion of the Court in which Price, Womack,

Johnson and Alcala, JJ., joined. Hervey, J., filed a concurring opinion in which

Keasler, J., joined. Keller, P.J., filed a dissenting opinion. Meyers, J., dissented.

OPINION

We granted review of this case to determine whether the videotape procedures set out

in Article 38.071, § 2, (1) including the use of written interrogatories in lieu of live testimony

and cross-examination, satisfy the Sixth Amendment rights of confrontation and cross-examination under the Supreme Court's Crawford (2) line of cases. (3) In this aggravated-sexual-

assault-of-a-child prosecution, the court of appeals found "no error in the trial court's

decision to allow cross-examination through written questions only" and to admit the child

complainant's two videotaped interviews with a child-abuse forensic examiner instead of

requiring live testimony. (4)

Although we agree that there must be balance between a defendant's right to

confrontation and a societal need to protect fragile and traumatized child victims, that

balance cannot constitutionally be struck by the method set out in Section 2 of Article

38.071. On federal constitutional matters, we are obliged to follow the dictates of the United

States Supreme Court regardless of our own notions. (5) We therefore reverse the judgment of

the court of appeals because it erroneously held that constitutionally adequate cross-examination can be done through the use of written interrogatories posed by a "neutral"

forensic interviewer more than a year after the initial interview. (6)

I.

Three-year-old R.D. stayed with her great-grandmother for childcare. Appellant is

R.D.'s great-uncle who, with his wife, moved into the great-grandmother's home in the

spring of 2007. In August of that year, R.D. started acting "strange" and "walking around

like a zombie." Her father asked her if anyone had touched her "cookie"-R.D.'s word for

her vagina-and he named off various people that she had been around. When he named

appellant, R.D. said, "Yes." (7) R.D.'s parents called the police.

A week later, R.D.'s family took her to The Bridge Advocacy Center, where a forensic

interviewer videotaped an interview with R.D. Throughout most of the interview, R.D. was

looking down at the pictures that she was vigorously coloring. She correctly answered some

of the interviewer's questions concerning her body parts and the identification of animals and

colors, but she answered others incorrectly. She seemed uninterested in many of the

interviewer's questions and several times said that she wanted to go watch Spiderman on TV.

When she couldn't leave, she folded her arms and, at first, would not cooperate.

Eventually, she said that her aunt saw appellant touch her "cookie" and that her

grandmother saw him do it and "spanked" him for it. In fact, neither the aunt nor the

grandmother had seen appellant touch the victim. R.D. was also examined by a sexual-assault nurse who found that her hymen was irregular and that this healed injury had been

caused by penetration.

Before trial, the State filed a motion to request the trial court to find R.D.-now five

years old-unavailable to testify and to admit the videotaped interview instead. R.D.'s

therapist testified and said that she believed that testifying in front of the appellant or

testifying via closed circuit television would be harmful. (8) She thought that submitting

written interrogatories through a female interviewer was the "best option." Over the

appellant's objection, (9) the trial court ruled that R.D. was unavailable to testify and that

defense counsel could submit written interrogatories to the forensic interviewer, who would

ask those questions and any "follow up" ones in a second recorded interview.

At this second interview-conducted fifteen months after the first one-the forensic

interviewer began by discussing the difference between the truth and a lie, and R.D. appeared

to understand the difference. Nonetheless, she said more than once that truthful statements

were lies. During this interview, R.D. said that appellant put his finger in her "cookie" (as

opposed to touching it as she had said fifteen months earlier). This time she said that neither

her aunt nor her grandmother saw any sexual contact between her and appellant.

R.D. did not testify at trial, but the two videotaped interviews were admitted over

appellant's confrontation objection. The jury convicted appellant of both touching R.D.'s

genitals and penetrating her genitals and sentenced him to life in prison on both counts.

On appeal, appellant argued that the denial of rigorous cross-examination denied him

his right to confront the witness. The court of appeals agreed that R.D.'s out-of-court

statements were testimonial, but concluded that the trial court did not err in allowing "cross-examination through written questions only." (10)

II.

A. Pre- Crawford Law on the Right to Confrontation.

The Confrontation Clause gives a criminal defendant the right "to be confronted with

the witnesses against him." (11) In Coy v. Iowa , (12) Justice Scalia explained that "[w]e have never

doubted, therefore, that the Confrontation Clause guarantees the defendant a face-to-face

meeting with witnesses appearing before the trier of fact." (13) In Maryland v. Craig , (14) decided

just two years later, the Supreme Court pulled back from that absolute position. It held that

in some special cases, when the specific facts showed that there was a "compelling" state

interest, the witness need not actually confront the defendant face-to-face as she testified,

although the defendant must be able to see her as she testified and must be able to

contemporaneously cross-examine her. (15)

Both Coy and Craig involved prosecutions for sexually assaulting a child. Coy was

accused of molesting two thirteen-year-old girls who were having an outdoor sleepover in

a neighboring yard. (16) An Iowa statute allowed prosecutors to use a screen to shield child

witnesses from seeing the defendant as they testified. (17) Most of the elements of the right of

confrontation were preserved through this procedure, but the witnesses could not see the

defendant and the defendant could not see the witnesses as they testified. (18) And, perhaps

most importantly, the jury could not see how the witnesses and the defendant interacted when

each confronted the other. (19) In a 6-2 decision, the Supreme Court held that this procedure

violated the right to confrontation. (20) Justice Scalia noted the compelling state interest of

protecting fragile children and other witnesses:

That face-to-face presence may, unfortunately, upset the truthful rape victim

or abused child; but by the same token it may confound and undo the false

accuser, or reveal the child coached by a malevolent adult. It is a truism that

constitutional protections have costs. (21)

In Craig , however, the Supreme Court, in a 5-4 decision, upheld the use of a one-way

closed-circuit television for questioning a six-year-old child in lieu of face-to-face

confrontation in the courtroom itself. (22) A Maryland statute authorized this procedure if the

trial judge determined 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." (23) Under this procedure, the defendant could see the child as she testified, but

she could not see the defendant.

According to Justice O'Connor, this procedure did not violate the Confrontation

Clause because that provision can be reduced to its "central concern," which 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." (24) Rigorous and

contemporaneous cross-examination could, under some special circumstances, alleviate the

need for face-to-face confrontation. The Court stressed that only the witness's ability to

confront the defendant face-to-face was affected-no other portion of the Sixth Amendment

right of confrontation was compromised:

[The one-way closed-circuit television procedure] " (1) insures that the witness

will give his statements under oath-thus impressing him with 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. " (25)

Thus, 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." (26)

Justice Scalia, the author of Coy just two years earlier, wrote a scathing dissent that

began, "Seldom has this Court failed so conspicuously to sustain a categorical guarantee of

the Constitution against the tide of prevailing current opinion." (27) He stated,

The Sixth Amendment provides, with unmistakable clarity, that " [i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted

with the witnesses against him. " The purpose of enshrining this protection in

the Constitution was to assure that none of the many policy interests from time

to time pursued by statutory law could overcome a defendant's right to face his

or her accusers in court. (28)

This language, that even compelling social policies may not override the Sixth

Amendment right of confrontation, echoed Justice Scalia's language in Coy . The Supreme

Court has never overturned the holding in Craig , but, beginning with Crawford v.

Washington , (29) the Supreme Court has nibbled it into Swiss cheese by repeating the

categorical nature of the right to confrontation in every one of its more recent cases. (30)

B. The Right to Confrontation under Crawford .

Fourteen years after Craig , in Crawford v. Washington , the Supreme Court reiterated

the categorical right of confrontation that it had set out in Coy . Justice Scalia, speaking for

seven members of the Court, (31) concluded that, "[w]here testimonial statements are at issue,

the only indicium of reliability sufficient to satisfy constitutional demands is the one the

Constitution actually prescribes: confrontation." (32) The Court overruled its prior decision in

Roberts v. Ohio , (33) which allowed admission of " ex parte testimony upon a mere finding of

reliability," because that "malleable standard" failed to protect against "paradigmatic

confrontation violations." (34)

In examining the history of the Confrontation Clause, the Crawford Court explained

that it was based on the English common-law tradition of "live testimony in court subject to

adversarial testing." (35) This English system was in contrast to the European civil-law system

that "condone[d] examination in private by judicial officers." (36) That is, the European

inquisitorial system allows for ex parte questioning, the use of written questions and answers,

and ex parte depositions. Justice Scalia noted that even the earliest American decisions held

that depositions or other prior testimony could be admitted against an accused only if he was

present and had an opportunity to cross-examine the witness at the time the live testimony

was given. (37) That "prior opportunity to cross-examine" in person is both a "necessary" and

"dispositive" requirement for the admission of testimonial statements under the

Confrontation Clause. (38) Justice Scalia warned that "under no circumstances" shall the

defendant be deprived of "'seeing the witness face to face, and . . . subjecting him to the

ordeal of cross-examination.'" (39)

In Crawford , the Court explained that "[t]he text of the Sixth Amendment does not

suggest any open-ended exceptions from the confrontation requirement to be developed by

the courts." (40) Social policy, public policy, even grave practical difficulties of obtaining the

witness for trial (41) do not trump the categorical requirement. Rather, under Crawford ,

Admitting statements deemed reliable by a judge is fundamentally at odds with

the right of confrontation. To be sure, the Clause's ultimate goal is to ensure

reliability of evidence, but it is a procedural rather than a substantive

guarantee. It commands, not that evidence be reliable, but that reliability be

assessed in a particular manner: by testing in the crucible of cross-examination. (42)

The Crawford Court stated, "It is not enough to point out that most of the usual safeguards

of the adversary process attend the statement, when the single safeguard missing is the one

the Confrontation Clause demands." (43) Thus, when testimonial statements are at issue, and

the declarant is not making those statements from the witness stand at trial, "the Sixth

Amendment demands what the common law required: unavailability and a prior opportunity

for cross-examination." (44)

That prior opportunity for cross-examination must serve the same function as is

normally accorded to adversarial cross-examination in the courtroom during trial:

Cross-examination is the principal means by which the believability of a

witness and the truth of his testimony are tested. Subject always to the broad

discretion of a trial judge to preclude repetitive and unduly harassing

interrogation, the cross-examiner is not only permitted to delve into the

witness' story to test the witness' perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e. , discredit, the witness.

. . . [T]he exposure of a witness' motivation in testifying is a proper and

important function of the constitutionally protected right of cross-examination. (45)

C. Testimonial Statements under Crawford and its Progeny.

The question then became, "What out-of-court statements are 'testimonial' for

purposes of the right of confrontation?" In Crawford , the Court did not fully resolve that

issue, recognizing that there would be some "interim uncertainty" interpreting and applying

the distinction between testimonial and nontestimonial statements. (46) Two years later, in

Davis v. Washington , (47) the Supreme Court elaborated on that distinction:

Statements are nontestimonial when made in the course of police interrogation

under circumstances objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an ongoing emergency.

They are testimonial when the circumstances objectively indicate that there is

no such ongoing emergency, and that the primary purpose of the interrogation

is to establish or prove past events potentially relevant to later criminal

prosecution. (48)

Under Davis , (as well as the Supreme Court's more recent confrontation decision,

Michigan v. Bryant (49) ) the primary focus in determining whether an out-of-court statement

is "testimonial" is on the objective purpose of the interview or interrogation, not on the

declarant's expectations. (50) If the objective purpose of the interview is to question a person

about past events and that person's statements about those past events would likely be

relevant to a future criminal proceeding, then they are testimonial. (51)

D. Child-Abuse Forensic Interview Statements and Videotapes Are Testimonial and

Are Inadmissible Unless the Child Testifies or the Defendant Had a Prior

Opportunity to Cross-Examine the Child.

Virtually all courts that have reviewed the admissibility of forensic child-interview

statements or videotapes after the Davis decision have found them to be "testimonial" and

inadmissible unless the child testifies at trial or the defendant had a prior opportunity for

cross-examination. (52) Indeed, in this case, the State does not dispute that R.D.'s statements,

made during her two interviews at The Bridge Children's Advocacy Center, were testimonial,

and the court of appeals explicitly held that they were testimonial. (53)

1. A prior opportunity to cross-examine means an opportunity for full personal

adversarial cross-examination, including attacks on credibility.

Therefore, the Confrontation Clause question in this case is whether appellant had "a

prior opportunity to cross-examine" R.D., as is required under Crawford . The court of

appeals quite appropriately cited Davis v. Alaska (54) for the proposition that the right of

confrontation includes "not only the right to face-to-face confrontation, but also the right to

meaningful and effective cross-examination." (55) And the court aptly cited Dean Wigmore,

who had explained that the "'main and essential purpose'" of confrontation is "the

opportunity for cross-examination through the process of putting direct and personal

questions to the witnesses and the obtaining of immediate answers." (56)

Indeed, it is that personal presence of the defendant and the right to ask probing,

adversarial cross-examination questions that lies at the core of an American criminal trial's

truth-seeking function. As the Supreme Court stated in California v. Green , (57) a 1970

Confrontation Clause case, the right of confrontation forces the witness to submit to cross-examination, the " 'greatest legal engine ever invented for the discovery of truth .'" (58)

Over one hundred years ago, Dean Wigmore waxed eloquent over the special sanctity

of cross-examination in the American system of justice: "[C]ross-examination, not trial by

jury, is the great and permanent contribution of the Anglo-American system of law to

improved methods of trial procedure." (59) And that right of personal and open cross-examination had been well established in English common law. According to Sir Matthew

Hale in 1680, "by this course of personal and open examination, there is opportunity for all

persons concerned, viz. the judge, or any of the jury, or parties, or their council or attornies,

to propound occasional questions, which beats and boults out the truth much better than when

the witness only delivers a formal series of his knowledge without being interrogated." (60) One

important objective of cross-examination is to test the veracity of the witness, "[b]ut even

when all suspicion of veracity is supposed to be out of the question, how very unsatisfactory

is the ' ex parte ' account of a witness taken under circumstances in which the adverse party

had not a fair opportunity of cross-examination." (61)

Cross-examination means

[t]he questioning of a witness upon a trial or hearing by the party opposed to

the party who called the witness to testify. The purpose of cross-examination

is to discredit a witness before the factfinder in any of several ways, as by

bringing out contradictions and improbabilities in earlier testimony, by

suggesting doubts to the witness, and by trapping the witness into admissions

that weaken the testimony. (62)

It is an examination by the opposing party, not a "neutral" interviewer. It occurs in the

formal setting-a trial or a hearing. (63) First the witness testifies. Then, cross-examination

follows upon its heels. (64) The cross-examiner may discredit the witness's direct testimony in

several different ways, depending upon the witness, the questioner, and the specific situation

as it unfolds in the hearing. Both the federal and Texas hearsay rules apply to prior out-of-court statements made by a testifying witness. (65) The rationale for this rule is that a deferred

opportunity to cross-examine is thought to be distinctly inferior to contemporaneous cross-examination:

The chief merit of cross examination is not that at some future time it gives the

party opponent the right to dissect adverse testimony. Its principal virtue is in

its immediate application of the testing process. Its strokes fall while the iron

is hot. False testimony is apt to harden and become unyielding to the blows of

truth in proportion as the witness has opportunity for reconsideration and

influence by the suggestions of others, whose interest may be, and often is, to

maintain falsehood rather than truth. (66)

Many of the post- Crawford child-abuse videotape cases that have been reversed

involved statutory or judicial procedures that allowed the admission of testimonial hearsay

statements without any cross-examination or an insufficient opportunity for cross-examination. (67) For example, in State v. Contreras , (68) the Florida Supreme Court held that the

state's statutory procedures regarding discovery depositions provided an inadequate

opportunity for cross-examination because, inter alia , they may be taken without the

defendant's personal presence. These depositions do "not function as the equivalent of the

cross-examination opportunity envisioned by Crawford ." (69) Indeed, even in Wigmore's day,

depositions did not provide a sufficient opportunity for cross-examination unless they were

taken in "a formal proceeding governed by a settled procedure and enforced by vested

authority." (70) Informal interviews, whether transcribed or recorded, do not provide the

appropriate solemnity to qualify as an opportunity for formal cross-examination. (71) And ex

parte depositions are strictly inadmissible; "[t]his is universally conceded as a common-law

principle." (72)

Similarly, in People v. Fry , (73) the Colorado Supreme Court held that testimony taken

at a preliminary hearing-hearings that are usually restricted to an assessment of probable

cause and limit the defendant's right of cross-examination on credibility issues-is not

admissible at trial. The preliminary hearing does "not provide an adequate opportunity to

cross-examine sufficient to satisfy the Confrontation Clause requirements." (74)

2. Ex parte submission of written interrogatories does not qualify as cross-examination.

The State argues that it "has an important public policy interest in protecting the

physical and psychological well-being of children and, in particular, child abuse victims." (75)

Therefore, argues the State, the trial court was "justified in requiring cross-examination by

written interrogatories for the safety and protection of the child." (76) Although the State argues

that there should be more flexibility in child-abuse cases, the Supreme Court has rejected the

notion that there should be more flexibility concerning the Confrontation Clause in certain

types of cases, such as domestic-abuse prosecutions. In Davis , Justice Scalia said:

Respondents in both cases [ Davis and Hammon ], joined by a number of their

amici, contend that the nature of the offenses charged in these two

cases-domestic violence-requires greater flexibility in the use of testimonial

evidence. This particular type of crime is notoriously susceptible to

intimidation or coercion of the victim to ensure that she does not testify at trial.

When this occurs, the Confrontation Clause gives the criminal a windfall. We

may not, however, vitiate constitutional guarantees when they have the effect

of allowing the guilty to go free. (77)

The content of the constitutional rights to confrontation and cross-examination do not depend

upon the type of crime charged or the fragility of the witnesses; all accused citizens are

entitled to the full protection of the constitution.

Furthermore, the Crawford decision made clear that direct and personal cross-examination, with counsel's ability to ask follow-up questions, is essential "to tease out the

truth" at trial. (78) Thus, the Crawford Court stated that depositions or other prior testimony

could be admitted against an accused only if he was present and had an opportunity to cross-examine during that deposition or prior testimony. (79) And, in ringing terms, the Supreme

Court declared that, "'under no circumstances'" shall the defendant be deprived of "'seeing

the witness face to face, and . . . subjecting him to the ordeal of a cross-examination.'" (80) In

the context of battered women, small children, and other fragile witnesses, this is a heavy

price to pay, but it is the price that our constitution and our Supreme Court requires. There

is no "balancing" the defendant's constitutional right of confrontation and cross-examination

against other social policies, even compelling ones.

III.

The court of appeals in this case, without citing to any of the Crawford line of cases,

concluded that written interrogatories, propounded by a forensic child-sexual-abuse examiner

some fifteen months after the child's initial videotaped interview that the State wished to

introduce, were a sufficient substitute for live, adversarial cross-examination to satisfy a

defendant's right to confrontation. (81) But we are "not free to conduct a cost-benefit analysis

of clear and explicit constitutional guarantees, and then to adjust their meaning to comport

with our findings." (82) Cross-examination means personal, live, adversarial questioning in a

formal setting. It cannot have one meaning for some witnesses and another meaning for

others.

We are unable to find any post- Crawford precedent from any jurisdiction that states,

or even suggests, that a list of written interrogatories, posed by a forensic examiner to a child

in an ex parte interview, is a constitutional substitute for live cross-examination and

confrontation. (83) Had he been forced to accept such a pallid substitute for the real thing, Sir

Walter Raleigh would once more rattle his chains and cry out from the Star Chamber, "[L]et

Cobham be here, let him speak it. Call my accuser before my face[.]" (84) A few written

interrogatories sent off to the Tower for the warden to ask Lord Cobham in his cell would

not satisfy Sir Walter or the Confrontation Clause his trial engendered.

The ex parte "written interrogatory" procedure used in this case would not pass muster

under Craig , the very case that the State and the court of appeals relied upon. In Craig, the

majority held that the right of confrontation was not unconstitutionally gouged because every

other aspect of the right to confrontation except face-to-face confrontation in the courtroom

was given full force. (85) Craig did require that the child testify under oath, be subject to full

contemporaneous cross-examination, and be observed by the judge, jury, and defendant

during that testimony. (86) The only reason that the closed-circuit television procedure was

permitted in Craig was because "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." (87)

There was no "rigorous adversarial testing" of R.D.'s testimonial statements by that

greatest legal engine for uncovering the truth: contemporaneous cross-examination. The

written-interrogatories procedure used in this case does not pass muster under our English

common-law adversarial system or our United States Constitution. The constitutional

requirement of confrontation and cross-examination "may not [be] disregard[ed] . . . at our

convenience," regardless of the prediction of dire consequences. (88)

We therefore reverse the judgment of the court of appeals and remand this case to that

court for further proceedings consistent with this opinion.

Delivered: September 14, 2011

Publish

1. Tex. Code Crim. Proc. art. 38.071, §2.

2. Crawford v. Washington , 541 U.S. 36 (2004); Davis v. Washington , 547 U.S. 813

(2006); Giles v. California , 554 U.S. 353 (2008); Melendez-Diaz v. Massachusetts , 129 S.Ct.

2527 (2009); Michigan v. Bryant , 131 S.Ct. 1143 (2011); Bullcoming v. New Mexico , 131 S.Ct.

2705 (2011).

3. Appellant's sole ground for review states,

Does a videotaped interview of the complainant by a neutral questioner, with a list

of questions submitted by the defendant over objection, satisfy the Sixth

Amendment right to cross-examination in the form of " rigorous testing in the

context of an adversary proceeding?"

4. Coronado v. State , 310 S.W.3d 156, 165 (Tex. App.--Amarillo 2010).

5. Casarez v. State ,

913 S.W.2d 468 , 475 n.10 (Tex. Crim. App. 1994) ("As judges on this

honorable Court, we are bound to apply the United States Constitution as interpreted by the

Supreme Court; we do not have the luxury or the liberty to ignore binding precedent." ).

6. Coronado , 310 S.W.3d. at 165.

7. R.D.'s hearsay statement was admitted under Article 38.072, which provides for the

admissibility of a child's initial "outcry" to an adult only when "the child . . . testifies or is

available to testify at the proceeding in court or in any other manner provided by law." Tex.

Code Crim. Proc. art. 38.072, § 2(b)(3).

8. The therapist testified extensively to the trauma that R.D. had initially suffered, the

progress that she had made during therapy, and to a relapse that R.D. had experienced as the trial

date approached. The therapist thought that R.D. would suffer further trauma, not so much from

the act of testifying, but from being made to recall the events, regardless of the setting. She

stated:

At this point, the abuse is almost-I mean she was three. I think that it can be

nearly forgotten. I think it could be non-non-not impactful because she was so

very young, but we're looking at her now at five.

She's so much more socially aware. She's much more aware of privacy

and modesty. And to-to relive this and, also, to try to put into words an

experience that she had at three, I believe, is-is impossible and is very-is very

damaging.

The therapist testified that any further questioning would be damaging because it would cause

R.D. to remember the event, "something that needs to be put to rest."

9. Appellant's counsel specifically objected to the use of written interrogatories, as well as

the general procedures set out in Article 38.071, § 2:

And I think Mr. Coronado just has a right-the issue I questioned one of the

witnesses about is, with live testimony, things come up that you need to ask about,

that you didn't anticipate. . . . With the written interrogatories I'll never have that

opportunity. So we are certainly requesting at least the option to [have] live

testimony with the closed-circuit setup.

After the trial judge ruled that he would require the Section 2 methodology, defense counsel

again stated, "Just for purposes of the record, though, the Defense is objecting to the Court's

decision"- [Judge: "I understand"] "about testimony by interrogatories only."

After the trial judge ruled, he asked if counsel had his written questions ready. He did.

The trial judge then asked defense counsel if he agreed that the forensic interviewer "would try to

follow up on certain questions if it were appropriate." Defense counsel did agree: "[S]he has my

permission to adjust her questions as the situation may call for." But at that point the prosecutor

objected, saying that the interviewer might ask a "follow up" question that the defense did not

want to be asked. Defense counsel then stated that he would at least "like to go to The

Bridge-the interview is at 2:00 p.m. today-and be in an adjacent room. And in the event

something did come up that I felt another question would be appropriate, I'd like to be there."

But the prosecutor said that only law-enforcement personnel are allowed in the adjacent room

unless a court files a written order allowing that. The trial judge intervened and told the attorneys

that either the interviewer could ask follow-up questions or defense counsel would be permitted

to be there. The prosecutor agreed that the interviewer could ask follow-up questions and

defense counsel stated that he didn't have a problem with the interviewer "using her professional

judgement in questioning a five-year-old child. She's better at it than I am, I'm sure."

10. Coronado , 310 S.W.3d at 165 .

11. U.S. Const., amend. VI.

12. 487 U.S. 1012 (1988).

13. Id. at 1016 .

14. 497 U.S. 836 (1990).

15. Id. at 851-52 .

16. Coy , 487 U.S. at 1014 .

17. Id . (citing Iowa Code § 910A.14 (1987)).

18. Id. at 1014-15.

19. Id. at 1019-20.

20. Id. at 1021-22. The case was remanded to the Iowa Supreme Court to assess whether

the error was harmful. It was harmful, and the defendant was entitled to a new trial. State v.

Coy , 433 N.W.2d 714, 715 (Iowa 1988).

21. Coy , 487 U.S. at 1020 .

22. Craig , 497 U.S. at 840 . The female defendant was charged with sexually molesting the

little girl who attended a kindergarten that the defendant owned and operated. Id. at 840-41 .

23. Id. at 841 (quoting Md. Cts. & Jud. Proc. Code Ann. §

9-102 (a)(1)(ii) (1989)).

24. Id. at 845.

25. Id. at 845-46, 851 (quoting California v. Green , 399 U.S. 149, 158 (1970)).

26. Id. at 846. The provisions of Article 38.071, § 3, presenting a child's testimony via

closed-circuit television, are similar to those discussed in Craig . That methodology was upheld

by this Court in Gonzales v. State , 818 S.W.2d 756 (Tex. Crim. App. 1991), in which we held

that the use of a two-way closed-circuit television system to obtain the testimony of a child

witness did not violate the defendant's confrontation rights under Craig . In that case, the trial

judge had determined that use of such a system was necessary to protect the child's well-being

and that she would suffer severe trauma if forced to testify in the courtroom. Id . at 759-60. The

system provided a live, two-way presentation of the child's testimony and allowed for rigorous,

contemporaneous cross-examination, as well as any necessary objections to the questions or

answers given. Id. at 764 . The witness and defendant could view one another and could be

observed by the judge and jury. The witness was merely in another room. Id. See also Marx v.

State , 987 S.W.2d 577, 582-83 (Tex. Crim. App. 1999) (upholding use of the methodology set

out in art. 38.071, § 3, over a Confrontation Clause objection, even when one child was over the

age of twelve and the other child was not the victim of the offense).

27. 497 U.S. at 860 (Scalia, J., dissenting).

28. Id. at 860-61 (Scalia, J., dissenting).

29. 541 U.S. 36 (2004).

30. Academics have noted the enormous impact that the Crawford line of cases has had

upon both domestic-violence and child-abuse cases. Such prosecutions have become much more

difficult because the victim must almost always testify at trial to satisfy the Confrontation Clause.

See, e.g., David M. Wagner, The End of the "Virtually Constitutional"? The Confrontation

Right and Crawford v. Washington as a Prelude to Reversal of Maryland v. Craig, 19 Regent

U.L. Rev. 469, 469 (2006) (noting that-after Crawford -a "forthright holding that the government

may deny a criminal defendant a confrontation with his accuser because a 'compelling state

interest' is present, in, say, combating child abuse, would invite obvious and well-founded

objections of the 'slippery slope' variety" in arguing that the Supreme Court will overturn its

prior decision in Craig based upon the constitutional analysis of Crawford ); Myrna S. Raeder,

Comments on Child Abuse Litigation in a "

Testimonial" World: The Intersection of

Competency, Hearsay, and Confrontation, 82 Ind. L.J. 1009 , 1023 (2007) (discussing the use of

forensic interviews in child-abuse cases; stating that " Crawford appears to doom the use of

multidisciplinary teams in child abuse as a way of introducing statements of children who do not

testify " and lamenting that " C rawford has turned these best practices into a textbook for creating

testimonial statements when the child does not testify." ); Kimberly Y. Chin, "Minute and

Separate": Considering the Admissibility of Videotaped Forensic Interviews in Child Sexual

Abuse Cases After Crawford and Davis, 30 B.C. Third World L.J. 67 (2010) (noting that, under

Crawford , child-abuse forensic videotapes are generally inadmissible when the child is

unavailable to testify at trial, and suggesting that some videotapes could be redacted to eliminate

all testimonial statements); Prudence Beidler Carr, Comment: Playing By All the Rules: How to

Define and Provide a "Prior Opportunity for Cross-Examination" in Child Sexual Abuses Cases

After Crawford v. Washington , 97 J. Crim. L. & Criminology 631 (2007) (noting the enormous

impact that the Crawford decision has had upon child-sexual-abuse cases, but arguing that

pretrial videotapes may still be admissible under both Crawford and Craig if the defendant is

given an appropriate opportunity for prior confrontation and cross-examination). Cf. State v.

Stock , 256 P.3d 899, 905 (Mont. 2011) (defendant's confrontation rights under Crawford were

not violated when six-year-old child testified via two-way closed-circuit television); People v.

Buie , 775 N.W.2d 817, 825-27 (Mich. Ct. App. 2009) (applying Craig to the issue of whether

expert testimony given via two-way interactive technology violated the defendant's confrontation

rights); State v. Henriod, 131 P.3d 232 (Utah 2006) (rejecting the argument that Crawford

implicitly abrogated Craig ); State v. Blanchette , 134 P.3d 19, 29 (Kan. Ct. App. 2006) (same).

31. Chief Justice Rehnquist wrote a concurring opinion, in which Justice O'Connor, the

author of Craig , joined. Chief Justice Rehnquist found the "testimonial" vs. "nontestimonial"

distinction historically unfounded and stated that he was "not convinced that the Confrontation

Clause categorically requires the exclusion of testimonial statements" that had not been

previously tested by the opportunity for cross-examination. Crawford , 541 U.S. at 69-72

(Rehnquist, C.J., concurring).

32. Crawford , 541 U.S. at 68-69 . Justice Scalia, now speaking for the majority in

Crawford , echoed his dissent in Craig : "[T]he Confrontation Clause does not guarantee reliable

evidence; it guarantees specific trial procedures that were thought to assure reliable evidence,

undeniably among which was 'face-to-face' confrontation." Craig , 497 U.S. at 862 (Scalia, J.,

dissenting).

33. 448 U.S. 56 (1980).

34. Crawford , 541 U.S. at 60 .

35. Id. at 43 .

36. Id.

37. Id. at 49 .

38. Id. at 55 .

39. Id. at 57 (quoting Mattox v. United States , 156 U.S. 237, 244 (1895)).

40. Id . at 54.

41. See Bullcoming v. New Mexico , 131 S.Ct. 2705, 2713, 2717-18 (2011) (holding that

Crawford requires the lab technician who actually ran the lab tests to appear and submit to

adversarial cross-examination in lieu of a more easily available surrogate witness; rejecting

suggestion that an "unbending application of the Confrontation Clause" would impose an undue

burden on the prosecution and concluding that the constitutional requirement "'may not [be]

disregard[ed] . . . at our convenience'") (quoting Melendez-Diaz v. Massachusetts , 129 S.Ct.

2527, 2540 (2009)).

42. Crawford , 541 U.S. at 61 .

43. Id. at 65 .

44. Id. at 68 .

45. Davis v. Alaska , 415 U.S. 308, 316 (1974).

46. Crawford, 541 U.S. at 68 n.10.

47. 547 U.S. 813 (2006).

48. Id. at 822.

49. 131 S.Ct. 1143 (2011).

50. Davis , 547 U.S. at 822 . In Bryant , the Supreme Court stressed that courts, in

determining the "primary purpose" of the interrogation or interview, must view the

circumstances from an objective point of view:

An objective analysis of the circumstances of an encounter and the statements and

actions of the parties to it provides the most accurate assessment of the "primary

purpose of the interrogation." The circumstances in which an encounter occurs--

e.g., at or near the scene of the crime versus at a police station, during an ongoing

emergency or afterwards-- are clearly matters of objective fact. The statements

and actions of the parties must also be objectively evaluated. That is, the relevant

inquiry is not the subjective or actual purpose of the individuals involved in a

particular encounter, but rather the purpose that reasonable participants would

have had, as ascertained from the individuals' statements and actions and the

circumstances in which the encounter occurred.

131 S.Ct. at 1156.

51. Davis , 547 U.S. at 822 ; see State v. Arnold , 933 N.E.2d 775 , 784 (Ohio 2010) (child-rape victim's videotaped statements to interviewers at child-advocacy center that served

primarily a forensic or investigative purpose were testimonial, and their admission at trial

violated defendant's confrontation rights when child did not testify at trial).

52. See, e.g. , Bobadilla v. Carlson , 575 F.3d 785, 791-93 (8th Cir. 2009) (holding, on

defendant's federal writ of habeas corpus, that state supreme court made an "unreasonable

application of federal law" under Crawford in concluding that child's videotaped statement to

social worker in sex-abuse case was admissible when child did not testify at trial and defendant

had no opportunity to cross-examine child; affirming district court's ruling granting habeas

relief); State v. Contreras , 979 So.2d 896, 905-12 (Fla. 2008) (harmful error to admit child-victim's videotaped statement to child-abuse coordinator when child was declared unavailable

for trial and defense counsel's discovery deposition of child did not afford defendant sufficient

opportunity for cross-examination); State v. Hooper , 176 P.3d 911, 917-18 (Idaho 2007) (holding

that videotaped statements the child victim made to nurse during interview at a sexual-trauma

abuse-response center were testimonial because the circumstances surrounding the interview

indicated that the primary purpose of the interview was to establish past events potentially

relevant to later criminal prosecution as opposed to meeting the child's medical needs; reversible

error to admit them when child did not testify at trial and defendant had no prior opportunity for

cross-examination); State v. Henderson , 160 P.3d 776, 785-93 (Kan. 2007) (reversible error to

admit three-year-old child's videotaped statement to social worker taken at government facility to

gather evidence against alleged perpetrator when child did not testify at trial and defendant did

not have prior opportunity to cross-examine);

State v. Justus, 205 S.W.3d 872, 880-81 (Mo.

2006) (while social worker's job was to protect child, "primary purpose" of videotaped

statements was to establish past events; reversible error to admit four-year-old child's videotaped

interview when defendant did not have opportunity to cross-examine her); State v. Blue, 717

N.W.2d 558, 564-67 (N.D. 2006) (videotaped statement to forensic interviewer at child advocacy

center inadmissible because defendant did not have opportunity to cross-examine; irrelevant that

trial judge found the child's statement reliable and trustworthy because Confrontation Clause

requires cross-examination); State v. Pitt , 147 P.3d 940, 943-46 (Or. Ct. App. 2006) (reversible

error to admit "testimonial" videotaped statements made by two children to social worker at

child-abuse assessment center when children did not testify at trial); In re S.R., 920 A.2d 1262,

1266-69 (Pa. Super. Ct. 2007) (reversible error to admit videotape of four-year-old child's

statement to forensic DHS interviewer for the purpose of investigation and possible prosecution

when child did not testify at juvenile's adjudication hearing).

53. Coronado , 310 S.W.3d at 163 . The court explained:

Here, the primary purpose of the August 8th interview was to preserve a record of

past facts or events for purposes of a later criminal prosecution and the purpose of

the follow up interview was to comply with the requirements of article 38.071 for

the admissibility of that original recording during that prosecution. The accuracy

and truthfulness of R.D.'s statements were crucial to the State's case against

Appellant. In both situations, R.D.'s statements clearly constitute testimonial

hearsay for Confrontation Clause purposes.

Id.

54. 415 U.S. 308 (1974).

55. Coronado , 310 S.W.3d at 162 .

56. Id. (citing 5 John Wigmore, Evidence § 1395, at 123 (3d ed. 1940)).

57. 399 U.S. 149 (1970).

58. Id. at 158 (quoting 5 John Wigmore, Evidence § 1367 (3d ed. 1940)).

59. 2 John Wigmore, Wigmore on Evidence § 1367 at 1698 (1904).

60. Id. (quoting Sir Matthew Hale, History of the Common Law ch. 12 (1680)).

61. Id. (quoting 2 W.D. Evans, Notes to Pothier, 198 (1806)).

62. Black's Law Dictionary 433 (9 th ed. 2009).

63. See Mattox v. United States , 156 U.S. 237, 244 (1895) (holding that it did not violate

the Sixth Amendment right of confrontation when a deceased witness's prior testimony from an

earlier trial was read in a second trial of the same matter because the defendant had the

opportunity to conduct a full cross-examination in the first trial; "The substance of the

constitutional protection is preserved to the prisoner in the advantage he has once had of seeing

the witness face to face, and of subjecting him to the ordeal of a cross-examination. This, the law

says, he shall under no circumstances be deprived of[.]").

64. Wigmore, supra note 59, § 1369, at 1709; see also Hughes v. State , 385 So.2d 1010,

1014 (Ala. Crim. App. 1980).

65. Fed. R. Evid. 801(d)(1) advisory committee's note (noting that "[t]he position taken by

the Advisory Committee in formulating this part of the rule is founded upon an unwillingness to

countenance the general use of prior prepared statements as substantive evidence"); 1 Roy R.

Ray, Texas Practice: Texas Law of Evidence Civil and Criminal § 785, at 12 (3d ed.

1980) (stating that "[t]he hearsay rule applies even to evidence of previous statements made by

the witness himself.").

66. State v. Saporen , 285 N.W. 898, 901 (Minn. 1939). Dean Wigmore, on the other hand,

once advocated this position but "on further reflection rejected it when the witness appeared and

personally testified at the trial":

[T]he theory of the Hearsay rule is that an extrajudicial statement is rejected

because it was made out of Court by an absent person not subject to cross-examination. . . . Here, however, by hypothesis the witness is present and subject

to cross-examination. There is ample opportunity to test him as to the basis for

his former statement. The whole purpose of the Hearsay rule has already been

satisfied. Hence there is nothing to prevent the tribunal from giving such

testimonial credit to the extrajudicial statement as it may seem to deserve.

2 John Wigmore, A Treatise on the System of Evidence in Trials at Common Law §

1018 (2d ed. 1923). And that is the position of the Supreme Court concerning the Confrontation

Clause: As long as the witness takes the stand at trial and is subject to in-court adversarial cross-examination, the Confrontation Clause is satisfied. Crawford , 541 U.S. at 59 ("Finally, we

reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause

places no constraints at all on the use of his prior testimonial statements.").

67. See note 52 supra.

68. 979 So.2d 896 (Fla. 2008).

69. Id. at 910 .

70. Wigmore, supra note 59, § 1376, at 1715.

71. Id.

72. Id. , § 1377, at 1716.

73. 92 P.3d 970 (Colo. 2004).

74. Id. at 978 . The Colorado Supreme Court explained,

This case exemplifies the dangers of admitting preliminary hearing testimony as

evidence at trial when the witness is unavailable. [The deceased victim] made

several statements incriminating Fry at the preliminary hearing. Although [the

victim's] credibility was factually subject to attack, credibility determinations are

not allowed at preliminary hearings. Thus, [the victim's] testimony could not be

subjected to the procedural rigors required by the Confrontation Clause at the

preliminary hearing. Moreover, the trial court further allowed the testimony to

skirt the procedural safeguards of the Confrontation Clause by allowing the

testimony to be read aloud at trial, by a police officer, without the opportunity for

immediate rebuttal. The testimony was therefore never subject to direct attack.

The process employed in this case illustrates how dispensing with an adequate

opportunity for cross-examination impedes a defendant from having a proper

chance to rebut the evidence against him.

Id. at 979 (citation omitted). Cf. State v. Mantz , 222 P.3d 471, 478 (Idaho Ct. App. 2009)

(holding that prior testimony from a preliminary hearing may be admissible under Crawford if it

is "'given under circumstances closely approximating those that surround the typical trial'";

noting that "[c]ircumstances approximating trial include witness testimony under oath,

representation by counsel, an opportunity to cross-examine the witness, and the proceedings

conducted before a judicial tribunal capable of providing a judicial record of the proceedings.")

(quoting California v. Green , 399 U.S. 149, 165 (1970)).

75. State's Brief at 9.

76. Id.

77. Davis , 547 U.S. at 832-33 .

78. Crawford , 541 U.S. at 67 .

79. Id. at 49 .

80. Id. at 57 (quoting Mattox v. United States , 156 U.S. 237, 244 (1895)).

81. Coronado, 310 S.W.3d at 164-65 ("In an attempt to find a suitable solution to this

Hobson's choice, while at the same time providing a meaningful compromise between the

defendant's right of confrontation and society's interest in protecting young child victims from

additional trauma occasioned by placing them within the crucible of confrontation and cross-examination in a courtroom setting, we find that the procedures governed by section 2(b) of

article 38.071 can be an appropriate constitutional accommodation.").

82. Maryland v. Craig , 497 U.S. 836, 870 (1990) (Scalia, J., dissenting); see also Giles v.

California , 554 U.S. 353, 375-76 (2008) ("[T]he guarantee of confrontation is no guarantee at all

if it is subject to whatever exceptions courts from time to time consider 'fair.'

It is not the role of

courts to extrapolate from the words of the Sixth Amendment to the values behind it, and then to

enforce its guarantees only to the extent they serve (in the courts' views) those underlying values.

The Sixth Amendment seeks fairness indeed-but seeks it through very specific means (one of

which is confrontation) that were the trial rights of Englishmen. It 'does not suggest any open-ended exceptions from the confrontation requirement to be developed by the courts. '") (quoting

Crawford , 541 U.S. at 54 ).

83. There has been at least one post- Crawford case in which a pro se defendant's right to

personally cross-examine a victim-witness has been curtailed by requiring stand-by co-counsel to

ask the defendant's cross-examination questions when it appeared likely that he would intimidate

or terrorize the witness on the witness stand. At issue was the constitutional right of self-representation, not the right of confrontation. See, e.g., Partin v. Commonwealth , 168 S.W.3d

23, 27-29 (Ky. 2005) (noting that "[c]ross-examination can be used to attack the human

components of the prosecution's case-in-chief through intimidation. In certain cases, the

intimidation of the witness during cross-examination and the tactical advantage gained by it may

exceed what the Constitution and fundamental fairness in the adversarial process require"; the

trial court's decision to require standby counsel to actually pose the questions to the victims was

not an abuse of discretion and did not violate defendant's right of self-representation). That is a

very different situation from one in which the defendant's counsel cannot personally cross-examine the witness.

84. Crawford , 541 U.S. at 44 (quoting Raleigh's Case , 2 How. St. Tr. 1, 15-16 (1603)).

85. 497 U.S. at 851 . Indeed, in Romero v. State , 173 S.W.3d 502, 505 (Tex. Crim. App.

2005), a case in which we held that the defendant's confrontation rights were violated, the

witness wore a disguise while he was testifying live in the courtroom. In that case, two

confrontation rights were gouged: face-to-face confrontation plus an inability to fully assess the

witness's demeanor because of his baseball cap, dark glasses, and turned-up collar. We

concluded that this procedure did not comport with Craig 's mandate that, even if face-to-face

confrontation is denied, the reliability of the testimony is otherwise assured. We explained the

importance of the remaining confrontation rights that were not gouged in Craig :

Whether the reliability of the testimony is otherwise assured turns upon the extent

to which the proceedings respect the four elements of confrontation: physical

presence, oath, cross-examination, and observation of demeanor by the trier of

fact. In Maryland v. Craig , the Supreme Court found sufficient assurance of

reliability in a procedure that denied one of these elements--physical

presence-- where the remaining three elements were unimpaired. In that case, a

child witness testified in front of a one-way closed-circuit monitor that prevented

her from seeing the defendant but permitted the judge, jury, and defendant to see

the witness. Because the witness was under oath, subject to contemporaneous

cross-examination, and her demeanor was on display before the trier of fact, the

Supreme Court found that the procedure adequately ensured that the testimony

was "both reliable and subject to rigorous adversarial testing in a manner

functionally equivalent to that accorded live, in person testimony. "

Id. at 505. It seems perverse to conclude that live, in-court testimony that is subject to full

adversarial cross-examination violates the constitution if the witness's face is covered up, but a

videotaped interview in which the defendant has had no cross-examination, no right to confront

the witness face-to-face, no ability to see or have the jury see her facial demeanor as she talked to

the forensic interviewer as she colored on her paper passes constitutional muster. These two

contradictory results cannot coexist.

86. Craig , 497 U.S. at 857 .

87. Id.

88. Melendez-Diaz, v. Massachusetts , 129 S.Ct. 2527, 2540-41 (2009). Indeed, in its most

recent Crawford case, the Supreme Court reiterated its categorical requirement: "As a rule, if an

out-of-court statement is testimonial in nature, it may not be introduced against the accused at

trial unless the witness who made the statement is unavailable and the accused has had a prior

opportunity to confront that witness." Bullcoming, v. New Mexico , 131 S.Ct. 2705, 2713 (2011)

(emphasis added).