approving expert testimony describing behavior commonly observed in sexually abused children
How later courts described this case
- approving expert testimony describing behavior commonly observed in sexually abused children
- use of child’s videotaped testimony falls within confrontation-clause exception because case-specific finding of necessity is required
Written by the judges who cited it.
The opinion
HOFFMAN, Judge,
dissenting.
I respectfully dissent from the majority's disposition of the first appellate contention raised by Brady: whether IND.CODE § 35-37-4-8 (1988 Ed.) and the procedures used to videotape the testimony of the child witness, T.B., violated Brady's right to confront his accusers.
IND.CODE § 35-387-4-8 provides in pertinent part:
"(f) If the court makes an order under subsection (c), only the following persons may be in the same room as the child during the child's videotaped testimony: * %* * * * a
(3) The defendant's attorney (or the defendant, if the defendant is not represented by an attorney). * * * u * *
(7) The defendant, who can observe and hear the testimony of the child without the child being able to observe or hear the defendant. However, if the defendant is not represented by an attorney, the defendant may question the child."
In the instant case, Brady was represented by an attorney who attended the videotaping session during which T.B.'s testimony was elicited. Pursuant to IND.CODE § 35-37-4-8(f)(7), Brady was placed in the garage of T.B.'s home and watched the proceedings on a television monitor.
IND.CODE § 35-37-4-8(f) is unconstitutional, as it violates Article I, § 183 of the Indiana Constitution. Article I, § 18 provides criminal defendants in this State with a right of confrontation independent of the right to confront granted by the Sixth Amendment of the federal constitution. Article I, § 18 states: "In all criminal prosecutions, the accused shall have the right ... to meet the witnesses face to face...."
There is no ambiguity in the constitutional provision. "Face to face" confrontation must surely mean "face to face" confrontation. The right granted by Article I, § 18 is violated when a defendant is placed at a *74 location where he or she cannot be seen or heard by the witness, even though the defendant is permitted to observe the witness and listen to the witness's testimony.
The majority suggests that the right of confrontation is adequately protected so long as there is an opportunity to cross-examine the child witness. Miller v. State (1987), Ind., 517 N.E.2d 64 , is cited in support of that proposition. The Supreme Court in Miller did not hold that cross-examination fully satisfies the constitutional mandate found in Article I, § 18; rather, the Court held that Article I, § 18 includes the right to cross-examine. Id. at 69. The right to meet witnesses face to face is in no way undermined by the Miller decision.
For the foregoing reasons, I dissent.