holding that article 38.071, § 2, provision allowing for use of videotaped ex parte interrogatories submitted by defendant and posed by "neutral” forensic interviewer was not "constitutional substitute for live cross-examination and confrontation” of victim
How later courts described this case
- holding that article 38.071, § 2, provision allowing for use of videotaped ex parte interrogatories submitted by defendant and posed by "neutral” forensic interviewer was not "constitutional substitute for live cross-examination and confrontation” of victim
- explaining that under Davis, “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”
- repeating suggestion by commentator that some videotapes could be redacted to eliminate testimonial statement to avoid a confrontation problem
- holding admission of child’s written interrogatories in lieu of live,testimony, under Tex. Code Crim. Proc. Ann. art. 38.071 § 2, was unconstitutional
Written by the judges who cited it.
The opinion
HERVEY, J.,
concurring in which KEASLER, J., joined.
I respectfully concur. While I do agree that the written interrogatories propounded by the neutral interviewer in this case did not constitute a sufficient method of cross-examination to satisfy a defendant’s constitutional right to confront witnesses, I also believe there must be a balance between a defendant’s right to confrontation and a societal need to protect child victims.
Surely we cannot overlook the plausible option of presenting child victim testimony via closed circuit television in the manner proscribed by this Court in Gonzales v. State, 818 S.W.2d 756 (Tex.Crim.App.1991). There we held that use of a two-way closed circuit television system to obtain the testimony of a child witness did not violate the defendant’s state and federal confrontation rights. Use of this particular system was employed after a determination that the system was necessary to protect the child’s well-being and that she would suffer severe trauma if forced to testify in the courtroom. The system provided a live two-way presentation of the child’s sworn testimony, and allowed for rigorous and contemporaneous objection and cross-examination. The witness and defendant could view one another and could be observed by the judge and jury. The witness was merely in another room.
To me, this option is clearly constitutional and satisfies the concerns of both Crawford v. Washington 1 and Maryland v. Craig 2 because the evidence presented is being. subjected to rigorous (contemporaneous), adversarial testing 3 while safeguarding a compelling state interest 4 to protect a child witness from the severe trauma of testifying in the courtroom.
I respectfully concur.
. Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004).
. Maryland v. Craig, 497 U.S. 836 , 110 S.Ct. 3157 , 111 L.Ed.2d 666 (1990).
. Crawford, 541 U.S. at 74 , 124 S.Ct. 1354 ; Craig, 497 U.S. at 845, 857 , 110 S.Ct. 3157 .
. Craig, 497 U.S. at 852 , 110 S.Ct. 3157 .