explaining that plain error is limited to "exceptional circumstances where a failure to recognize error would result in a miscarriage of justice, or where there is glaring error so grave and serious that it strikes at the very heart of the defendant's constitutional rights" (quotation omitted)
How later courts described this case
- explaining that plain error is limited to "exceptional circumstances where a failure to recognize error would result in a miscarriage of justice, or where there is glaring error so grave and serious that it strikes at the very heart of the defendant's constitutional rights" (quotation omitted)
- stating that for erroneous admission of evidence at trial to be harmless, appellate court “must find beyond a reasonable doubt that the jury would have returned a guilty verdict regardless of the error”
- holding error not harmless because Court could not “say beyond a reasonable doubt that the erroneously admitted evidence did not contribute to the jury’s verdict” (quotation and alteration omitted)
- stating that reversal for plain error requires “not only that the error seriously affected substantial rights, but also that it had an unfair prejudicial impact”
Written by the judges who cited it.
The opinion
*201 Amestoy, CJ.,
¶ 69. concurring. I concur but write separately to emphasize what I trust can be learned by prosecutors, defense attorneys, and judges from the consequences of this extraordinarily difficult and tragic case.
¶ 70. While I do not dispute the majority’s representation that the record below supports defendant’s claim that she maintainedher right to confront her children throughout the pretrial process, that representation does not fully capture the confusion that led to a result I am fully persuaded the State, defense, and court sought to avoid: the eve-of-trial demand that the children be available to testify. The trial court’s characterization of the pretrial proceedings as an “administrative nightmare” is apt, but it pales in comparison to the nightmares of sexually abused children subjected to the trauma of court testimony. “It has also been widely recognized that, as traumatic as sexual abuse incidents themselves are, children’s experiences with the criminal justice system during the pre-trial and trial stages constitute a second victimization, in many respects as devastating to them as the original abuse.” G. Goodhue, Maryland v. Craig: Balancing Sixth Amendment Confrontation Rights with the Rights of Child Witnesses in Sexual Abuse Trials, 26 New Eng. L. Rev. 497 , 517 (1991) (footnotes omitted).
¶ 71. The legal dilemma posed by this case appears to have been created by the good faith efforts of the State and defense counsel to avoid requiring the children to testify. The State’s reliance upon the family court’s 1996 determination that the children’s hearsay statements were admissible under V.R.E. 804a(a) and 807, and defendant’s subsequent 1998 representation to the district court that the same hearsay statements were admissible “as the law of the case,” led to the reasonable belief that the availability requirement would be satisfied by making the children available for videotaping pursuant to Rule 807. The majority accurately observes that both parties were unclear as to whether such taping was to take place during trial or beforehand. The confusion of the parties was secondary to the uncertainty of the trial judges, two of whom opined that videotaping had to occur “contemporaneous with trial.” The majority correctly notes, however, that the 807(d)(4) taping need not always be contemporaneous with trial to satisfy the availability requirements of 804a(a)(3), since the salient inquiry is whether the recorded testimony — before trial or contemporaneous with trial — is sufficient to satisfy a defendant’s confrontation rights. As the majority points out, we have held that where children testified at trial through previously videotaped testimony taken pursuant to V.R.E. 807, the children’s videotaped testimony, including cross-examination, satisfied the availabil *202 ity requirement contained in V.R.E. 804a. State v. Cameron, 168 Vt. 421, 426-28 , 721 A.2d 493, 497-99 (1998).
¶ 72. Although I concede I am drawing an inference from the record below, the eve-of-trial decision to compel the children’s testimony appears to have been made by the defendant herself — a decision unlikely to have been recommended by experienced defense counsel. A client’s eve-of-trial insistence that the children be compelled to testify, the State’s mistaken assumption that they would not be, and the trial court’s reliance on a pretrial record that is confusing to an appellate court even after months of careful scrutiny, led to a result that should not be repeated, particularly in light of the guidance that the majority opinion today provides.
¶ 73.1 take the liberty of summarizing three significant points made by the majority. First, 804a(a)(3) preserves a defendant’s right to confront the child-hearsay declarant. Absent a defendant’s stipulation or waiver, the child must be available for cross-examination either in court or pursuant to Rule 807. Second, to trigger that right, a defendant must move to compel the child to testify pursuant to Rule 804a(b). Third, as proponent of the hearsay statements, the State has the obligation to ensure that the child is available to testify in court or pursuant to Rule 807. ,
¶ 74. Because lack of timely notice may have profound emotional consequences for the child witness, the court and the parties have a particular responsibility to determine — as early as is possible consistent with defendant’s right of confrontation — whether defendant seeks to have the child-hearsay declarant available to testify. When the State intends to offer the hearsay statement of a victim who is a child ten years of age or under, V.R.Cr.P. 26(d) requires the State, subj ect to the exception within the rule, to furnish to defendant a written statement of the evidence it intends to offer, including the name of each witness who will.testify to the statement of the victim, at least 30 days before trial. V.R.Cr.P. 26(d). Assuming State compliance with the rule, the trial court should be able to determine well in advance of trial whether either party will move to compel the child to testify pursuant to Rule 804a(b).
¶ 75. Rule 804a, properly construed and utilized, is intended to simultaneously serve two compelling interests: preserving an effective opportunity to cross-examine the person whose statement is being used against the defendant, and minimizing the trauma of a sexually abused child’s experience with the criminal justice system. See Goodhue, supra, at 517 (“Given the turmoil and trauma experienced by most children who have been victims of sexual abuse, it is clear that protecting them from further unnecessary trauma is a compelling interest.”). The “availability” issue in *203 this ease was distorted by the confluence of misjudgments by the State, defense, and the trial court. These errors led, in turn, to a result that no orderly system of justice should tolerate: the compelled testimony of child victims of sexual abuse without adequate notice to the children and those with a legal responsibility to care for them.
¶ 76.1 am authorized to state that Chief Justice Allen (Ret.) joins in this concurrence.