not facially unconstitutional but application of statute may, in some cases, unconstitutionally violate confrontation rights
How later courts described this case
- not facially unconstitutional but application of statute may, in some cases, unconstitutionally violate confrontation rights
- statute requiring defendant to call child-hearsay declarant as defense witness does not offend defendant's due process rights since negative jury reaction to vigorous examination of child witness is inherent in confrontation of child witness irrespective of which party calls child to testify
- “Evidence that another person had an opportunity or motive for committing the crime for which the defendant is being tried is not admissible without proof that such other person committed some act directly connecting him with the crime.”
Written by the judges who cited it.
The opinion
BLACKMAR, Chief Justice,
concurring.
I concur, but not without reservations. The case is closer to Coy v. Iowa, 487 U.S. 1012 , 108 S.Ct. 2798 , 101 L.Ed.2d 857 (1988), than to Craig v. Maryland, — U.S. -, 110 S.Ct. 3157 , 111 L.Ed.2d 666 (1990). Yet those two cases might not be wholly harmonious. Justice Scalia, who wrote for the Court in Coy , dissented in Craig . Justice O’Connor, who wrote for the Court in Craig , indicated her concerns in a separate opinion in Coy .
In the normal course of a criminal trial witnesses give their evidence from the stand in the presence of judge, defendant and jury, in response to questions which do not suggest the answer. Recent cases sanction departure from this strict procedure, but only for a reason. In California v. Green, 399 U.S. 149 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970), the prosecution was allowed to introduce a witness’s out-of-court statement when he claimed that he was “on drugs” and had no present memory of the material events. In State v. Bowman, 741 S.W.2d 10 (Mo. banc 1987), the witness did not profess lack of memory, but his testimony was inconsistent with his prior statement, and the statement was received as substantive evidence. Just as in Green , the jury was allowed to weigh the witness’s recorded statements against his present testimony. Defense counsel had the right of cross-examination, although it must be difficult to cross-examine a witness who says repeatedly, “I don’t remember.”
In Craig there was an express finding, pursuant to statute, that the child witness would be traumatized by being required to testify. The Court then reviewed classic hearsay doctrine, and found that the child’s statements could be introduced under a statutory exception to the hearsay rule. The Court pointed to the requirement of express findings of unavailability. It is implicit in the trial court’s findings that the witness could not be cross examined, for cross-examination would presumably be as traumatic as direct examination.
The Court construes our statute as giving the prosecution an election as between the child witness’s recorded statement and her trial testimony. There is nothing in the statute to limit or to guide the prosecutor’s election. (Under State v. Seever, 733 *670 S.W.2d 438 (Mo. banc 1987), the prosecutor could not bolster trial testimony by a congruent extrajudicial statement.) I cannot agree that the procedure here sanctioned is so satisfactory as the traditional method of direct and cross examination. Cross-examination, in particular, would be a risky venture when the witness has not spoken a single word in court. The most predictable outcome would be a flood of tears which would be fatal to the defendant’s case.
But statutes are presumed constitutional, and I believe that Craig has so qualified Coy that I cannot say that the present statute is fatally tainted. Perhaps a definitive answer will be available from upstairs.
In all other respects I concur in the principal opinion.