Buckley v. State

BLEIL, Justice,

dissenting.

On June 29, 1988, the United States Supreme Court decided the case of Coy v. Iowa, — U.S. —, 108 S.Ct. 2798 , 101 L.Ed.2d 857 (1988). Because it directly bears on issues now before us, it merits discussion.

The Iowa statute before the Court in that case was different from the one before us now, nonetheless the Court was required— as are we — to determine whether the statute, designed to protect child witnesses, violated the defendant’s rights guaranteed by the Confrontation Clause of the Sixth Amendment.

The Court noted that the Confrontation Clause provides two protections for a criminal defendant: the right to physically face those who testify against the defendant, and the right to conduct cross-examination, citing Pennsylvania v. Ritchie, 480 U.S. 39 , 107 S.Ct. 989 , 94 L.Ed.2d 40 (1987). In holding that the Iowa statute, which allowed a screen to be placed between a child witness and the defendant during trial, was an obvious violation of the right to confront witnesses at trial, the Court squarely addressed issues now before our Court.

Justice Scalia, writing for the majority, conceded that, “It is a truism that constitutional protections have costs.” — U.S. at —, 108 S.Ct. at 2802 . After declaring the Iowa statute unconstitutional, Justice Scalia said, “We leave for another day, however, the question whether any exceptions exist [to the right of confrontation]. Whatever they may be, they would surely be allowed only when necessary to further an important public policy.”

Justice Scalia further said that when the exceptions from the normal implications were not firmly rooted in our jurisprudence there had to be individualized findings at the trial level that the particular witness needed special protection. He noted that the Iowa statutory exception, passed in 1985, “could hardly be viewed as firmly rooted.”

In our case, despite what Chief Justice Cornelius indicates in his concurring opinion, the child victim hearsay statement is not arguably an exception firmly rooted in our jurisprudence. Our statute was enacted in 1985. The first of its kind in the country was enacted in 1982. An argument that the Article 38.072 child victim hearsay statement exception merely codifies existing law seems novel. See, e.g., Skoler, New Hearsay Exceptions for a Child’s Statement of Sexual Abuse, 18 J.Mar.L.Rev. 1, 8 (1984); Datesman, State v. Smith: Facilitating the Admissibility of Hearsay Statements in Child Sexual Abuse Cases, 64 N.C.L.Rev. 1352, 1362 (1986); and Peterson, Sexual Abuse of Children — Washington’s New Hearsay Exception, 58 Wash.L.Rev. 813, 819-20 (1983).

Furthermore, in the present case there is no finding by the trial court that there was a compelling state interest which overrides Buckley’s confrontation rights. Indeed, it is difficult to imagine any important public policy or state interest to be served in putting on hearsay statements to prove the case-in-chief when the witness is available and testifies. Even Justice O’Connor, who concurred in the majority’s decision, would allow the “strictures of the Confrontation Clause” to give way to the “compelling state interest of protecting child witnesses,” only when “a court makes a case-specific finding of necessity.” — U.S. at -, 108 S.Ct. 2805 (O’Conner, J., concurring). The absence of any case — specific finding of necessity in the trial court precludes our concluding that any public policy or finding of state interests outweighs Buckley’s Sixth Amendment rights.

For these additional reasons I cpnclude that the statute in question as it applies to *351 Buckley in this case and on its face, is constitutionally infirm.