Petition for Writ of Certiorari — Glendening v. Florida
Supreme Court brief1989
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88-1803 | “FILED
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=spr F. SPANIOL, JR.
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\ : CLERK
No.
———————
IN THE ——_
Supreme Court of the United States
October Term, 1989
DAVID EDWARD GLENDENING,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA
Stuart C. Markman FB #32257]
Counsel of Record
Susan H. Freemon FB #344664
WINKLES, TROMBLEY, KYNES ©
& MARKMAN, P.A.
707 N. Franklin Street
Tenth Floor
P.O. Box 3356
Tampa, Florida 33601
813/229-7918
Counsel for Petitioner
II.
III.
QUESTIONS PRESENTED
Does using a two-way mirror to prevent the complain-
ing witness from seeing or hearing the Petitioner, over
objection and without an individualized showing of
necessity, conflict with Coy v. Jowa and thereby violate
the Petitioner’s sixth amendment confrontation right?
Does admitting over objection the repudiated hearsay
statements of a three and one-half year old complain-
ing witness who did not understand the difference be-
tween telling the truth and telling a lie conflict with
Ohio v. Roberts and thereby violate the Petitioner’s
sixth amendment confrontation right?
Does applying Florida’s new statutory child abuse hear-
say exception to an offense occurring before its effec-
tive date to allow otherwise inadmissible hearsay into
evidence on the theory that unconfronted videotaped
testimony is constitutionally equivalent to live, con-
fronted testimony at trial substantially diminish the
constitutional right to confrontation in violation of the
prohibition against ex post facto laws?
il
TABLE OF CONTENTS
CHIESTIONS PRESEN ERG . 663 since ce ieee sees
CPT bak 5 hae Sb iver end rena eee
PU CG ek kn ae See eee eee eee
STATUTES AND CONSTITUTIONAL PROVISIONS
PPE FER si VA RRS e as on ene Oe ee ee
STATEMENT OF Tete CASE ccna ccs einos tives
REASONS FOR GRANTING THE WRIT............
-
USING A TWO-WAY MIRROR TO PREVENT
THE COMPLAINING WITNESS FROM SEE-
ING OR HEARING THE PETITIONER, OVER
OBJECTION AND WITHOUT AN IN-
DIVIDUALIZED SHOWING OF NECESSITY,
CONFLICTED WITH COY V. IOWA AND
THEREBY VIOLATED THE PETITIONER’S
SIXTH AMENDMENT CONFRONTATION
4 | ere ee ee ey ere re ith
A. Inconflict with Coy, the Florida videotap-
ing statute did not require and the trial judge did
not make an individualized finding of necessity
to justify an exception to the right to face-to-face
COMTRONOIOON ss o55 4 Win a aon eee
B. In conflict with Cov, the Florida Supreme
Court erroneously analyzed harmless error by
considering only the tainted, unconfronted
testimony and not the remaining evidence in the
CNOG con ike ee be ene eee
ADMITTING OVER OBJECTION THE
REPUDIATED HEARSAY STATEMENTS OF
A THREE AND ONE-HALF YEAR OLD
COMPLAINING WITNESS WHO DID NOT
UNDERSTAND THE DIFFERENCE BET-
WEEN TELLING THE TRUTH AND TELL-
ING A LIE CONFLICTED WITH OHIO V.
iil
ROBERTS AND THEREBY VIOLATED THE
PETITIONER’S SIXTH AMENDMENT CON-
eg 8 4 et a 18
Ill. APPLYING FLORIDA’S NEW STATUTORY
CHILD ABUSE HEARSAY EXCEPTION TO
AN OFFENSE OCCURRING BEFORE ITS EF-
FECTIVE DATE TO ALLOW OTHERWISE
INADMISSIBLE HEARSAY INTO EVIDENCE
ON THE THEORY THAT UNCONFRONTED
VIDEOTAPED TESTIMONY IS CONSTITU-
TIONALLY EQUIVALENT TO LIVE, CON-
FRONTED TESTIMONY AT TRIAL SUB-
STANTIALLY DIMINISHED THE CON-
STITUTIONAL RIGHT TO CONFRONTA-
TION IN VIOLATION OF THE PROHIBI-
TION AGAINST EX POST FACTO LAWS.. 23
ee 25
EE COECMEWOO ee eee 26
APPENDIX
Opinion and Judgment of District Court of Appeal A-]
Opinion and Judgment of Florida Supreme Court . A-!1
8 A-27
rr PM eSeCSGs),..................04 A-28
Record excerpts of child competency hearing ....... A -30
Comparison and Review of State Videotaping
ke ee eee ee eee A-33
Opinion and Judgment of District Court of Appeal
before modification on hearing ................... A-45
iV
TABLE OF AUTHORITIES
Cases: Page
Beazell v. Ohio, 269 U.S. 167, 46S. Ct. 68,
(2 ee el DL 3.) Re ee eee eat 24
Calder v. Bull,
fo ee SES Sh. eee eee ee 24
Commonwealth v. Haber,
$51 Pa. Super. 79,505 A.20 £73 (098O) . ws kn os ss 14
Commonwealth v. Willis,
A eh Re 7: AR | ee ree eet 14, 17
Cop v. Towa, 2. hk eens 1S SD. GU. IE,
SOS 5. Ce: a MESO kek) cx ev eeeeacso nase passim
Craig v. State, 76 Md. App. 250, 544 A.2d 784
(Ct. Spec. App.), cert. granted, 314 Md. 458,
pee ee Be 8g: RS eee ore re 10
Dutton v. Evans, 400 U.S. 74, 91S. Ct. 210,
Fe he ee ee EE ne allen Uae oes RARER 19
Glendening v. State,
S06 Se, 26 355 ( 20 ELA. PSST). nee cess passim
Glendening v. State,
S56: Gb; 2 Bre CO SEA ce eco cee hakeaue eee passim
Globe Newspaper Co. v. Superior Court, 457 U.S.
596, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982) ....13, 14
Hall v. State,
44 Crim. L. Rep. 2396 (Miss. 1969).............. 10
Hochheiser v. Superior Court, 161 Cal. App. 3d 777,
208 Cel. Retr. 273 (aa Dist. 1964) ........... 10, 14, 17
Huff v. White Motor Corp.,
oe & Fe, Ee Oey. | enero e ree 22
Jaggers v. State,
S36 So. 20 321 (Pia. 20 D-C.A. 1966) joins 17
Ketcham vy. State,
240 Ind. 107, 162 N.E.2d 247 (1959) .>.......... 14, 22
Miller v. Florida, U.S. , 107 S. Ct. 2446,
fe SB. oy eee ont eee 24
Miller v. State,
SOF Te ee re ET ko ncn kN Kee Eh 14
Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531,
A eR | re 16, 19, 20
People v. Johnson, 146 Ill. App. 3d 640, 100 III. Dec. 330,
497 N.E.2d 308 (Sth Dist. 1986), rev’d, 118 Ill. 2d 501,
115 Ill. Dec. 384, 517 N.E.2d 1070 (1987) ........ 10
State v. Cooper,
291 S.C... 351, 208 decd Set CRO ee oka cess 14
State v. Eastham, 39 Ohio St. 3d 307,
530 N.E.2d 409 (1988) (per curiam).............. 14
State v. Eaton,
44 Crim. L. Rep. 2444 (Kan. 1989) .............. 10
State v. J.C.E.,
po ee a 20
State v. Kuone,
243 Kan. 218, 757 P.2d 289 (1988)............... 10
State v. Paster,
Oe ) a 21, 22
State v. Robinson,
153 Ariz. 191, 735 P.2d 801 (1987) (en banc) ..... 14
State v. Sanchez,
752 S.W.2d 319 (Mo. 1988) (en banc) ............ 10
State v. Segerberg,
131 Conn. 546, 41 A.2d 101 (1945) ......0000.... 21
State v. Tafoya, 108 N.M. 1, 765 P.2d 1183 (Ct. App.
1988), cert. denied, 109 S. Ct. 1572 (1989)........ 14
State v. Thomas, 144 Wis. 2d 876, 425 N.W.2d 641,
reconsideration granted, 434 N.W.2d 786 (1988)... 14
State v. Vincent,
768 P.2d 150 (Ariz. 1989) (en banc).............. 10
State v. Wilson,
156 Ohio St. 525, 103 N.E.2d 552 (1952) ......... 22
Strickland v. State,
44 Crim. L. Rep. 2085 (Ala. 1988)............... 17
Weaver v. Graham,
450 U.S. 24, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981) 23
Wildermuth v. State,
310 Md. 496, 530 A.2d 275 (1987) ............... 10
vi
Constitutional Provisions:
U.S. Const., Art. £8 Biles eee eee, 23
U.S. Const., Art. 3, © 30h i ee ee 23
Statutes:
Act of May 31, 1985, ch. 85-53, 1985 Fla. Laws 140 ..10, 11
Ala. Code Ann. § 15-25-1 (Michie Supp. 1988) .......... 14
Ala. Code Ann. § 15-25-2 (Michie Supp. 1988) .......... 12
Colo. Rev. Stat. Ann. § 18-3-413 (Bradford 1986) ....11, 12
Fla. Stat. § 90.GOS(2) CR0GT) cas ok ee eas cee ess 18
Fla. Stat. § 90.005¢03) (ISBT) coe ee passim
Fia. Seat. § 92.53 (IORI). ccs chee eee es passim
Fla. Stat. Ann. § 415.504 (West Supp. 1989) ............ 23
Ind. Code Ann. § 35-37-4-6 (West 1986) ................ 1]
Md. Cts. & Jud. Proc. Code Ann. § 9-102 (Supp. 1986) ....
Mich. Stat. Ann. § 27A.2163 (Cailaghan Supp. 1988)..... 11
Minn. Stat. Ann. § 595.02 (West Supp. 1989) ........ 11, 14
Miss. Code Ann. § 13-1-407 (Harrison/Law. Co-op.
Supp. 1968)... .....s: 0.5545 ene eee kee ss 12
Mo. Stat. Ann. § 491.680 (Vernon Supp. 1989) .......... 12
N.M. Sup. Ct. R Ann. 1986, 5-504 (Cum. Supp. 1988) ...11
Ohio Rev. Code Ann. § 2907.41 (Page 1987) ......... 11, 14
S.D. Code Ann. § 23A-12-9 (Supp. 1987) ............... 11
28 U.S.C.A. § 1257(a) (West Supp. 1989) ................ 2
Vt. R. Evid. § 807 (Saupe. TORR eee heehee ees
Wis. Stat. Ann. § 967.04 (West Supp. 1987) Raa brett eae. 12
Articles:
Abusing the System, Tampa Tribune, Sept. 7 1987 at 10-A,
ce ar eg er
Benesck & Schetsky, Allegations of Sexual Abuse and Child
Custody Cases, Emerging Issues in Child Psychiatry and
MEE OED oo. cc wucaccececsabsscseues
Blodgett, Coping With Child Abuse, 73 A.B.A. J. 26 (May
ee eka shee hae ekeekaubans
Bulkley, /ntroduction: Background and Overview of Child
Sexual Abuse, 40 U. Miami L. Rev. 5 (1985)........
Davis, Confrontation and Hearsay Statements of Child
Victims of Sexual Abuse, Fla. B.J., Oct. 1988 at 33 .
Dunn, Accusation Makes Life a Nightmare, Tampa Tribune,
CN Fe Se Se ge
Frank, Confronting Child Victims of Sex Abuse: The
Unconstitutionality of the Sexual Abuse Hearsay
Exception, 7 U. Puget Sound L. Rev. 387 (1984) ....
Gordon, False Accusations of Abuse in Child Custody
ee,
Mclver, The Case for a Therapeutic Interview in Situations
of Alleged Sexual Molestation, THE CHAMPION,
EG 66h 69'S kK vk Ne ead ee ex seas
Taylor, Lawyers Consider the Alternatives, Nat’! L.J., Mar.
I ew we emeunn
No.
IN THE
Supreme Court of the United States
October Term, 1989
DAVID EDWARD GLENDENING
STATE OF FLORIDA,
+> . .*
Responden.
PETITION FOR A WRIT OF CERTIORARI
lO THE SUPREME COURT OF FLORIDA
Petitioner David Edward Glendening respectfully prays that
writ of certiorari issue to review the judgment and opinion ot
ihe Florida Supreme Court, entered in the above-entitled pro
eeding on December 1, 1988. Rehearing was denied by the
Florida Supreme Court on February 3, 1989.
OPINIONS BELOW
lhe intermediate Florida appellate court, the Second District
Court of Appeal, issued a modified opinion affirming the Peti-
tioner’s conviction in Glendening v. State, 503 So. 2d 335 (Fla.
2d D.C.A. 1987), reprinted in the appendix, p. A-1, infra. The
Supreme Court of Florida also affirmed in Glendening y. State,
$36 So. 2d 212 (Fla. 1988), reprinted in the appendix, p. A-11,
infra. Over a dissent, the Florida Supreme Court denied the Peti-
tioner’s motion for rehearing and clarification.
JURISDICTION
Petitioner seeks review of the Florida Supreme Court's
2
December 1, 1988, affirmance of his conviction and its February
3, 1989, denial of his timely petition for rehearing. On March
16, 1989, Justice Anthony M. Kennedy entered an order extend-
ing the time for filing this petition to and including May 4, 1989.
The jurisdiction of this Court is invoked under 28 U.S.C.A. §
1257(a) (West Supp. 1989).
CONSTITUTIONAL AND STATUTORY PROVISIONS
1. The Sixth Amendment provides in pertinent part:
In all criminal prosecutions, the accused shall enjoy
the right. . .to be confronted with the witnesses against
him.
2. Fla. Stat. § 92.53 (1987), the Florida statute permitting
the replaying of videotaped depositions in lieu of the live
testimony of witnesses under age sixteen in sexual or child abuse
cases, is reprinted in the appendix, p. A-27, infra.
3. Fla. Stat. § 90.803(23) (1987), the Florida hearsay ex-
ception for the statements of children in sexual abuse cases, 1s
reprinted in the appendix, p. A-29, infra.
STATEMENT OF THE CASE
Based on an allegation of anal penetration, Petitioner David
Edward Glendening was charged with a single count of sexual
battery on a child eleven years of age or younger. He was con-
victed and sentenced to life imprisonment with a mandatory
minimum term of twenty-five years. Glendening, 536 So. 2d at
214.
Before trial the State of Florida moved pursuant to a new
Florida statute to videotape the testimony of the alleged victim,
the Petitioner’s three and one-half year old daughter, and to in-
troduce the videotape at trial in lieu of the child’s live testimony.
The statute provided that on a showing-of a ‘‘substantial
likelihood’’ the witness ‘‘would suffer at least moderate emo-
tional or mental harm”’ if required to testify in open court, the
court could require the defendant to view her testimony from
3
outside her presence by a two-way mirror, so that the defendant
could observe and hear her testimony, but the child could not
see or hear the defendant. Fla. Stat. § 92.53(1), (4) (1987).
Petitioner Glendening vigorously opposed the prosecution’s
motion for videotaping. He argued that concealing him from the
child’s sight and hearing by using a two-way mirror and replay-
ing the videotape at trial instead of requiring her to testify live
in his presence violated his sixth amendment right to face-to-face
confrontation. R 199, 200, 290, 294, 554.
The State contended the videotaping procedure did not in-
fringe the Petitioner’s sixth amendment right on the theory that
while the confrontation clause guarantees cross-examination, it
does not afford the accused a literal right to physically confront
his accuser face-to-face at trial. The prosecutor stated:
The defense is arguing David Glendening won’t get to
look his daughter in the eye. Well, | don’t know what
the purpose of that is other than intimidation because
that’s not the purpose of the confrontation clause. The
confrontation [clause] is for the purpose of cross-
examination and the purpose of allowing the witness
and the jury to see each other and evaluate credibility.
It has nothing to do with the defendant’s right of
physical confrontation.
R 209 (emphasis supplied).
The risk of ‘‘moderate emotional or mental harm’’ that the
State had to prove before the videotaping would be permitted
was not defined by the statute, although the statute did require
the trial court to conduct a hearing and make specific findings
of fact as to the basis for its ruling. Fla. Stat. § 92.53(1), (7) (1987).
To resolve the ‘‘moderate emctiona! or mental harm’’ issue, the
trial court received testimony from two lay people, a social
worker, and a pediatrician. Glendening, 536 So. 2d at 218. The
child did not testify.
There was no testimony at the hearing from a psychologist,
psychiatrist, or other qualified mental health professional that
4
the child would suffer moderate emotional or mental harm if
required to testify in her father’s presence. While the State did
present testimony that the child feared her father, a substantial
amount of evidence and argument was either inconsequential or
went only to show the child would, if required to testify live and
in court, experience the same general fears and anxieties any child
witness would assertedly experience in the same circumstance. '
Before he had even passed on the question of whether the
child’s testimony would be taken by videotape, the trial judge
announced that the Petitioner would be excluded from the child’s
presence. R 245. Finding there was not yet sufficient evidence
of a risk of moderate emotional harm to order the child’s
testimony videotaped, the court stated that irrespective of his
eventual decision on the videotaping motion, Petitioner would
not be permitted to physically confront the child face-to-face at
any stage of the proceedings. Without articulating any test, stan-
dard, rule, or legal basis for his decision, the trial judge stated:
Right now based upon what I’ve heard here, the action
that the court would take would be to have the father
so that the child would not see the father if she had
to testify in court and I would grant your motion, |
mean I would assure you that I would do that, I would
not allow physical confrontation between the child and
the father here in the courtroom or prior to being in
the courtroom. But I would not at this point grant your
motion for the videotape. I believe there would need
to be additional facts.
R 245.
After taking additional testimony, the trial judge granted
1/ For example, the prosecutor contended generally that the child’s age, three
and one-half years, in and of itself made the situation ‘‘intimidating?’ R 244.
The social worker stated ‘‘in general most three and one-half year olds would
be frightened by coming into this strange environment with so many people
around getting asked a lot of questions?’ R 275. The pediatrician, who had
examined the child for only twenty minutes four months earlier, conceded he
did not know the status of the child’s mental condition at the time of the hearing.
R 259, 263-64, 285. The child’s mother had never even explored the question
of testifying with the child. R 224-25.
the State’s motion to replay the child’s videotape in lieu of her
live trial testimony, and confirmed his earlier statement that he
would exclude the Petitioner from the child’s presence. R 286,
556. Ruling summarily without mentioning any specific facts or
evidence, the judge simply recited the statutory boilerplate. R
286. The court’s written order merely stated the motion was
**sranted.’’ R 394.
Before trial, Petitioner Glendening moved to exclude the out-
of-court statements purportedly made by the child that the State
was seeking to introduce through a recently enacted Florida statute
creating a new hearsay exception for statements of children in
sex abuse cases. As he had done previously in challenging the
videotaping statute, Petitioner Glendening urged the new hear-
Say exception was unconstitutional under the sixth amendment
confrontation clause. Because he was charged with an offense
allegedly occurring before the statute’s effective date, he also con-
tended its application to his case violated the prohibition against
ex post facto laws. Glendening, 536 So. 2d at 214.
The trial court and the parties recognized that before the
child would be permitted to testify live or by videotape, it first
had to be determined that she was a competent witness under
Florida law. Glendening, 503 So. 2d at 338; R 311, 423, 708. The
defense argued strenuously and repeatedly that the child lacked
the competency to be a witness. /d. at 219; R 41, 75, 311, 423,
710, 735-80. At the videotaping session before she was permitted
to testify as to the facts of the case, the child was examined by
the court and by the prosecutor to determine her competency.
R 756-68.
Under Florida law, a child is not competent to testify unless
the ‘‘court determines the child understands the duty to tell the
truth or the duty not to lie.’’ Fla. Stat. § 90.605(2) (1987).
2/_ The statute, reprinted in the appendix, p. A-29, infra, provides that otherwise
inadmissible hearsay statements of children in such cases are admissible if the
trial court finds ‘‘sufficient safeguards of reliability?’ and the child either
“testifies,” or is “‘unavailable’’ due to a substantial likelihood that participation
in the trial will result in ‘‘severe emotional or mental harm!’ Fla. Stat. §
90.803(23) (1987).
6
Repeated questioning revealed the child did not know the mean-
ing of telling the truth or telling a lie, and that she could not
distinguish good from bad.* The trial judge specifically found
the child did not know the meaning of telling the truth or telling
a lie and was not able to distinguish between the words ‘‘truth’’
and ‘‘lie.’’ The court also found the child did not understand
the concept of ‘‘good or bad,’’ and that she was ‘‘unable to arti-
culate the difference between right and wrong or telling the truth
or telling a lie.’”’ R 761-62, 764, 767-68, 771-72, 778-79, 787. Even
the prosecutor conceded that the child was incompetent and
unable to distinguish between the truth and a lie. R 913.
Nevertheless, confessing he did not know the correct legal
test to apply, the trial judge ruled the child competent. R 779-80.
Candidly admitting his uncertainty, the court suggested this issue
would be better handled by the appellate courts:
I don’t really think there are any cases that have
specifically decided if that in that context, | mean
they’ve written these wonderful statutes about young
children coming in and testifying, but I don’t think in
any of them have clearly decided, and clearly she was
unable to articulate the difference between right and
wrong and telling the truth or telling a lie. So I think
this is a good case for [the appellate courts] to decide.
R 787 (emphasis supplied).
The child’s videotaped testimony, which was eventually
presented to the jury, totally exculpated and exonerated the Peti-
tioner. Glendening, 536 So. 2d at 218. Responding to at least
18 questions from the State and the court, many of which were
repetitive, leading and suggested incriminatory responses, the child
steadfastly denied the Petitioner had ever committed the sexual
3/ Pertinent portions of the transcript of the competency hearing are
reproduced in the appendix, p. A-30, infra.
battery alleged.* R 792-98; 835, 837-39. In contradiction to all
of the child’s incriminating hearsay statements the prosecution
had given notice it intended to introduce, the child ‘‘not only
did not implicate the defendant in any wrongdoing, but specifical-
.y Stated that he had not hurt her.’’ Glendening, 536 So. 2d at
218.5
On appeal, the Supreme Court of Florida approved the deci-
sion of the District Court of Appeal and affirmed the Petitioner’s
conviction. Glendening, 536 So. 2d 212. Although using the two-
way mirror during the videotaping had completely prevented the
child from having ever seen or heard the Petitioner at any phase
of the prosecution, the Florida Supreme Court declined to reverse
under this Court’s recent decision in Coy v. Iowa, US. ,
108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988), concluding instead
that the instant case was distinguishable and that any errors were
harmless.® Glendening, 536 So. 2d at 217-18. The court also held
the trial judge did not abuse his discretion in determining the child
was competent to testify, and that in any event, it was not
necessary for the child to be testimonially competent for her hear-
say statements to be admitted.’ Jd. at 219. Further, the Florida
Supreme Court held the application of the new hearsay excep-
tion to Petitioner’s case did not violate the prohibition against
ex post facto laws.
4/ When repeated questioning failed to elicit even a single incriminating
remark, the court adjourned the proceeding, suggesting the child was fatigued
and unable to give ‘‘meaningful’’ testimony. R 800, 802-03, 814. When asked
by the court and the prosecutor, however, the child stated that she was not tired.
R 795, 802. Questioning resumed the next day, and the child’s testimony remained
totally exculpatory. R 835, 837-39. When it was again suggested her responses
were the result of fatigue, the child replied, as before, that she was not tired.
R 838.
5/ Apparently prompted by the child’s exoneration of the Petitioner and
refutation of her own hearsay statements, the trial court inquired of the State
if it intended to go forward with the prosecution. R 823.
6/ Coy was not decided until after the close of the briefing and oral argument
in this case, so that its application to the instant facts was not argued by the
Petitioner until he filed his motion for rehearing, after the Florida Supreme
Court had already issued its opinion affirming the conviction.
7/ The intermediate appellate court declined to affirm the trial judge’s
competency ruling, instead holding only that her competency was not a
precondition to admitting her hearsay statements. Glendening, 503 So. 2d at 340.
REASONS FOR GRANTING THE WRIT
I. USING A TWO-WAY MIRROR TO PREVENT
THE COMPLAINING WITNESS FROM SEEING
OR HEARING THE PETITIONER, OVER OBJEC-
TION AND WITHOUT AN INDIVIDUALIZED
SHOWING OF NECESSITY, CONFLICTED WITH
COY V. IOWA AND THEREBY VIOLATED THE
PETITIONER’S SIXTH AMENDMENT CON-
FRONTATION RIGHT.
In Coy v. lowa, Je. , 108 S. Ct. 2798, 101 L.
Ed. 2d 857 (1988), the United States Supreme Court held the sixth
amendment right to face-to-face confrontation was violated by
an Iowa statute permitting use of a large screen at trial that en-
abled the defendant to perceive his child accusers but complete-
ly prevented the witnesses from seeing him. Exactly like the screen
in Coy, the two-way mirror used in this case completely prevented
the witness from hearing or seeing the Petitioner. Nevertheless,
the Florida Supreme Court upheld the constitutionality of the
Florida videotaping statute, holding Coy was distinguishable and
any error was harmless. Glendening, 536 So. 2d at 212, 217-18.
Because the Supreme Court of Florida’s analysis directly con-
flicts with Coy, certiorari should be granted.
A. Inconflict with Coy, the Florida videotaping statute did not
require and the trial judge did not make an individualized
finding of necessity to justify an exception to the right to
face-to-face confrontation.
In Coy, this Court held that a legislatively imposed presump-
tion that child witnesses in sex abuse cases will experience trauma
in testifying is mot a ‘‘necessity’’ in furtherance of an ‘‘impor-
tant public policy’’ that would justify an exception to the literal
right to ‘‘meet face-to-face all those who appear and give evidence
at trial.’’ 108 S. Ct. at 2803 (emphasis in original). Leaving open
the question of whether any exceptions to this right exist, the
Supreme Court specifically held that such a presumption, without
individualized findings that particular witnesses needed special
protection, ‘‘could not be sustained by any conceivable excep-
tion.’’ Jd.
9
The Florida Supreme Court’s decision in Glendening con-
flicts with Coy because it upheld a statute authorizing denial of
a defendant’s right to face-to-face confrontation based on the
same legislative presumption of trauma expressly disapproved in
Coy. In distinguishing Coy, the Supreme Court of Florida deemed
the trial court’s quotation of the statutory language with the
child’s name inserted to be a ‘‘case-specific finding of necessity”’
in furtherance of an important public policy to protect child
witnesses. 536 So. 2d at 218. Such a finding based on a risk of
“*moderate’’ emotional harm goes only to the same ‘‘legislative-
ly imposed presumption of trauma’’ that Coy rejects as justify-
ing an exception to rights under the confrontation clause.
As this Court noted in Coy, trauma is a necessary compo-
nent of our adversary system of justice and an important feature
of the right to face-to-face confrontation. It is the aim of the
confrontation clause to secure for a criminal defendant ‘‘the pro-
found effect upon a witness of standing in the presence of the
person the witness accuses,’’ even if ‘‘[t]hat face-to-face presence
may, unfortunately, upset the truthful rape victim or abused
child?’ 108 S. Ct. at 2802. Confrontation may also ‘‘confound
and undo the false accuser, or reveal the child coached by a
malevolent adult?’ /d.
A finding of ‘‘moderate emotional harm’’ under the Florida
statute cannot be distinguished from the normal effect of con-
frontation on any witness the confrontation clause requires the
10
State to produce.’ In contrast to Florida’s insufficient standard,
the courts of other states have required that the child witness be
rendered unable to communicate in the defendant’s presence. See
State v. Vincent, 768 P.2d 150, 164 (Ariz. 1989); People v.
Johnson, 118 Ill. 2d 501, 115 Ill. Dec. 384, 517 N.E.2d 1070
(1987); State v. Eaton, 44 Crim. L. Rep. 2444 (Kan. 1989);
Wildermuth v. State, 310 Md. 496, 530 A.2d 275, 286 (1987);
State v. Sanchez, 752 S.W.2d 319, 322-23 (Mo. 1988) (en banc).
A number of other states’ statutes also hinge videotaped testimony
on standards much more demanding than Florida’s ‘‘moderate
8/ The situation would be different if the Florida statute protected against
a properly defined risk of ‘‘severe’’ or ‘‘permanent’’ harm. Ironically, before
its amendment in 1985, the Florida videotaping statute required proof of ‘‘severe’’
rather than mere ‘‘moderate’’ harm. Act of May 31, 1985, ch. 85-53, § 5, 1985
Fla. Laws 140, 142 (codified at Fla. Stat. § 92.53). Likewise, the new Florida
statutory hearsay exception for statements of child witnesses in child sex abuse
cases allows introduction of hearsay of children who are otherwise ‘‘unavailable”’
due to a substantial likelihood of ‘severe emotional or mental harm?” Fla. Stat.
§ 90.803(23)(a)(2)(b) (1987) (emphasis supplied).
Relatedly, to avoid face-to-face confrontation, other states demand the child
must evince more than nervousness, excitement, or reluctance. Craig v. State,
76 Md. App. 250, 544 A.2d 784, 801 (Ct. Spec. App.), cert. granted, 314 Md.
458, 550 A.2d 1168 (Md. 1988); see also Hochheiser v. Superior Court, 161 Cal.
App. 3d 777, 792, 208 Cal. Rptr. 273, 283 (2d Dist. 1984); State v. Kuone, 243
Kan. 218, 757 P.2d 289, 297 (1988). It has been recognized that mere reluctance
in contrast to actual inability may stem from fabrication as well as fear,
embarrassment, and guilt. People v. Johnson, 146 Ill. App. 3d 640, 100 III. Dec.
330, 497 N.E.2d 308, 318 (Sth Dist. 1986) (Harrison, J., dissenting), rev‘d, 118
Ill. 2d 501, 115 Ill. Dec. 384, 512 N.E. 2d 1070 (1987). In fact, whether testimony
in court is really even traumatic for children is hotly disputed. See Hail v. State,
44 Crim. L. Rep. 2396 (Miss. 1989). It may be less traumatic for children than
it is for adults, see Bulkley, /ntroduction: Background and Overview of Child
Sexual Abuse, 40 U. Miami L. Rev. 5, 11 (1985), or even therapeutic. /d. at 10;
Taylor, Lawyers Consider the Alternatives, Nat'l L. J., Mar. 20, 1989, at 26,
col. 3.
emotional harm.’’?
Telling evidence that the Florida statute is founded on the
same “‘legislatively imposed presumption of trauma’’ Coy disap-
proved is, ironically, presented in the Florida Supreme Court’s
own decision. Acknowledging the State legislature’s general in-
tention in enacting the videotaping statute was to spare children
- all children - the trauma of testifying in open court,’® the Florida
Supreme Court quoted the prefatory language of the statute where
the legislature declared: ‘‘WHEREAS, it is necessary that safe-
guards be instituted for the children of the State of Florida who
are victimized to assure that their right to be free from emotional
harm and trauma occasioned by judicial proceedings is protected
by the court....’’ Glendening, 536 So. 2d at 216 n.1."
Furthermore, the standard of necessity in the Florida statute
9/ Colo. Rev. Stat. Ann. § 18-3-413(4) (Bradford 1986) (emotional trauma so
that victim is medically or otherwise unavailable); Ind. Code Ann. §
35-37-4-6(c)(2)(B) (West 1986) (unavailable if psychiatrist certifies that testifying
would be traumatic or physician certifies medical reasons for child not to testify);
Mich. Stat. Ann. § 27A.2163(13) (Callaghan Supp. 1988) (incapable of testifying);
Minn. Stat. Ann. § 595.02(4) (West Supp. 1989)(psychologically traumatize so
as to render witness unavailable); N.M. Sup. Ct. R. Ann. 1986, 5-504(B)(1) (Cum.
Supp. 1988) (unreasonable or unnecessary harm); Ohio Rev. Code Ann. §
2907.41(B)(1)(b) (Page 1987) (serious emotional trauma); S.D. Code Ann. §
23A-12-9 (Supp. 1987) (substantially detrimental).
10/_ The Florida statute is in this respect even broader and less defensible than
the unconstitutional statute in Coy. The lowa statute applied only to the children
most at risk of experiencing serious emotional harm, the complaining witnesses.
108 S. Ct. at 2799. The Florida Statute, on the other hand, applies to any ‘‘victim
or witness who is under the age of sixteen?’ Fla. Stat. § 92.53(1) (1987) (emphasis
supplied).
11/_ Not quoted by the Florida Supreme Court but also showing the statute
was based on the same presumption impermissible in Coy and is focused solely
on the general characteristics of age and status rather than individualized
considerations of specific harm, the Florida legislature also stated: ‘‘ WHEREAS,
children are in need of special protection as victims or witnesses in the judicial
system as a result of their age and vulnerability . . . ?’ Act of May 31, 1985,
ch. 85-53, 1985 Fla. Laws 140 (emphasis supplied).
12
is too vague to provide adequate guidance to the court hearing
the motion. The ‘‘moderate emotional or mental harm’’ the State
must show for excluding a defendant is left undefined, and there
is no indication of what is necessary to show a ‘‘substantial
likelihood”’ of a child experiencing it. Unlike other statutes, the
Florida statute does not include any factors to be considered, any
standard of proof, or any indication of what evidence is a proper
ground for the determination. It does not even require the trial
court to personally examine the child. The statutes of other states
direct trial judges to consider specific behavioral indicators'* or
various factual circumstances of the child, the offense, and the
defendant.'?
Contrary to the Florida Supreme Court’s attempt to
distinguish Coy, the Florida statute is not salvaged by the addi-
tional requirement that the trial court must make specific find-
ings showing the basis for ‘‘moderate harm.”’ Such findings, even
if detailed and specific, can have no significance since they are
made in furtherance of the invalid ‘‘moderate harm”’ standard.
Moreover, even if the required findings could cure the statute’s
facial unconstitutionality, certiorari should still be granted because
the trial court in this case made no such findings at all.'*
Although the trial judge’s decision to forbid the Petitioner
the opportunity to confront the child face-to-face was apparently
based on the trial judge’s conclusion that the child feared the
Petitioner, since no specific findings were made, its precise basis
cannot be known. The trial court’s ruling excluding the Petitioner
12/ Colo. Rev. Stat. Ann. § 18-3-413(3) (Bradford 1986); Miss. Code Ann.
§ 13-1-407(4) (Harrison/Law. Co-op. Supp. 1988).
13/. Ala. Code Ann. § 15-25-2(a) (Michie Supp. 1988) (age and maturity o1
child, nature of offense, nature of testimony expected, possible effect of
testimony at trial along with any other relevant matters required by Supreme
Court rule); Mo. Stat. Ann. § 491.680(a) (Vernon Supp. 1989) (elements of
offense charged, emotional and psychological trauma if required to testify in
open court or to be brought into the personal presence of the defendant); Wis.
Stat. Ann. § 967.04(7)(b) (West Supp. 1987) (10 factors listed).
14/. The court ruled summarily and cited no evidence in support of his deci-
sion. At the hearing, he simply recited the statutory boilerplate that there was
‘*a substantial likelihood’’ that the child would, if required to testify, ‘‘suffer
at least moderate emotional or mental harm.”’ R 286. His written order stated
only that the motion was ‘“‘granted.’’ R 394.
EES a, ie
13
came at the same time he declared the State had not yet proved
even a likelihood of the moderate emotional or mental harm
required for videotaping. R 245. For this reason, the generalized
‘‘fear’’ on which the judge’s ruling was based could not have
risen even to the low level of the constitutionally deficient
moderate harm the statute required for videotaping.
The trial court’s eventual ruling to permit videotaping based
on a risk of moderate emotional or mental harm does not cure
the constitutional error. Since in violation of the Florida statute
the court made no individualized findings of fact on the record
showing the basis for his rulings, it cannot be known whether
the trial judge relied at least in part on testimony and argument
going to show that the child in this case would suffer the same
generalized, non-specific trauma, harm, and anxiety that any
similarly situated three and one-half year old would experience.
Such generalized, presumed trauma is insufficient under Coy.
At this writing, thirty-seven states have statutes authoriz-
ing the videotaping of children’s testimony. Predictably, these
statutory responses differ dramatically.'® If any exception to the
right to face-to-face confrontation is recognized, it must be
necessary to further an important public policy, Coy, 108 S. Ct.
at 2803, and must be narrowly drawn. Globe Newspaper Co. v.
Superior Court, 457 U.S. 596, 607, 102 S. Ct. 2613, 2620, 73
L. Ed. 2d 248 (1982). Any intrusion on the right must be tailored
precisely to fit the particular child witness. Coy, 108 S. Ct. at
2803. To protect the right to face-to-face confrontation, in
evaluating the child, the court must first determine whether the
source of potential trauma to the child is testimony in court or
testimony in the defendant’s presence.'® Then the court can select
the manner of testimony that best fits the individual child. There
15/_ The variations in the state statutes are reviewed in the appendix, p. A-33.
16/ The trial court in the case at hand did just the reverse. Based on testimony
by the mother and guardian ad litem and without ever examining the child,
he determined that the child would not be deposed in her father’s presence.
The court then required the prosecution to present testimony in support of its
motion to videotape the deposition. R 245.
14
are a number of alternatives less intrusive’’ than total exclusion
of the defendant.'®
‘‘Society’s need to prosecute accused abusers is no greater
than its need to preserve the Constitution.’’ State v. Robinson,
153 Ariz. 191, 735 P.2d 801, 814 (1987) (en banc). Petitioner’s
case presents an important opportunity for this Court to guide
state courts and legislatures in their efforts to preserve the con-
stitutional rights guaranteed to the accused while accommodating
child witnesses!$
B. Inconflict with Coy, the Florida Supreme Court erroneously
analyzed harmiess error by considering only the tainted, un-
confronted testimony and not the remaining evidence in the
case.
17/ The court may exclude spectators, Globe Newspaper Co. v. Superior
Court, 457 U.S. 596, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982); State v. Cooper,
291 S.C. 351, 353 S.E.2d 451, 455 n.1 (1987) (collecting statutes); or the child
may be less traumatized in open court as opposed to the close quarters of
chambers. Commonwealth v. Willis, 716 S.W.2d 224, 233 (Ky. 1986). Other
less restrictive alternatives include allowing the presence of a supportive adult,
see Hochheiser v. Superior Court, 161 Cal. App. 3d at 788, 208 Cal Rptr. at
279: State v. Thomas, 144 Wis. 2d 876, 425 N.W.2d 641, 643 (child testified
from mother’s lap); State v. Cooper, 291 S.C. 351, 353 S.E.2d at 453; statutes
collected in the appendix, p. A-41, or the use of leading questions. Ala. Code
Ann. § 15-25=1 (Michie Supp. 1988). Courts may deny continuances, limit ques-
tioning and voir dire, Hochheiser, 161 Cal. App. 3d at 791 n.9, 208 Cal. Rptr.
at 282 n.9, or reduce the number of court appearances. See Miller v. State,
517 N.E.2d 64, 73 (Ind. 1987).
18/ At least two states allow the child to view the defendant on a television
monitor during his or her testimony. Minn. Stat. Ann. § 595.02(4)(c)(2) (West
Supp. 1989); Ohio Rev. Code Ann. § 2907.41(A)(2) (Page 1987). The Supreme
Court of Ohio observed that such a provision is ‘‘somewhat less intrusive on
a defendant’s nght of confrontation’’ than totally precluding the witness’
awareness of the defendant’s presence as was done in this case. State v. Eastham,
39 Ohio St. 3d 307, 530 N.E. 2d 409, 412 n.5 (1988) (per curiam). See also
State v. Tafoya, 108 N.M. 1, 765 P.2d 1183, 1184 (Ct. App. 1988), cert. denied,
109 S. Ct. 1572 (1989) (witnesses aware that defendant could see them);
Hochheiser v. Superior Court, 161 Cal. App. 3d at 788, 208 Cal. Rptr. at 280
(1984) (monitors in room with child showed defendant, judge, and examining
attorney). The witnesses in Coy must have known that although the screen
erected in the courtroom prevented them from seeing the defendant, he could
see them, and the Iowa statute requires the court to inform them of this fact.
Coy, 108 S. Ct. at 2806 n.2 (Blackmun, J., dissenting).
19/ As one court noted, legislators are politically motivated to vote in favor
of statutes designed to make it easier to convict persons accused of child abuse
and leave it to the courts to deal with the ramifications. Commonwealth vy.
Haber, 351 Pa. Super. 79, 505 A.2d 273, 275 n.1 (1986).
15
In holding that any error in denying Petitioner his right to
face-to-face confrontation of the videotape was harmless, the
Florida Supreme Court did not review the record evidence to
determine whether the errors were harmless beyond a reasonable
doubt. Instead, focusing solely and exclusively on the specific
unconfronted evidence in issue - the child’s videotaped testimony
- the court held:
Because the videotaped testimony was totally ex-
culpatory, the admission of the testimony unques-
tionably did not contribute to the conviction and was
harmless beyond a reasonable doubt.
Glendening, 536 So. 2d at 218. The Supreme Court of Florida’s
harmless error analysis directly conflicts with Coy’s command
that in assessing harmless error, the reviewing court can consider
only ‘‘the remaining evidence,’’ and not the testimony the ac-
cused was precluded from confronting face-to-face.
Although the Florida Supreme Court recited the correct rule
in a footnote, Glendening, 536 So. 2d at 218 n.4, it failed to apply
it. In direct conflict with Coy, the Florida Supreme Court
analyzed the harmless error issue in this case by engaging in the
‘“*pure speculation’’ Coy prohibits. Its conclusion of harmlessness
came after it impermissibly hypothesized that confrontation would
have made no difference since the videotaped testimony was ex-
culpatory. /d. at 218.
The total lack of literal confrontation in this case cannot
be dismissed as harmless beyond a reasonable doubt. Although
the child’s videotaped testimony was excu!patory, the videotape
procedure was prejudicial because it served as the only basis for
admitting the child’s inculpatory and devastating hearsay state-
16
ments.?° Thus, the hearsay statements were admitted only because
the statute allowed a procedure that deprived Petitioner of his
literal right to face-to-face confrontation.
For this reason, it is impossible to separate the impact of
the videotaping procedure from Petitioner’s conviction. Without
the child’s videotaped testimony, her hearsay statements would
not be admissible. The ‘‘remaining evidence”’ is not so overwhelm-
ing that Petitioner’s guilt can be determined beyond a reasonable
doubt. Indeed, in both the intermediate appellate court and the
Florida Supreme Court, the State argued the Petitioner’s con-
viction should be affirmed based on the remaining nonhearsay
evidence in the record. Significantly, both Florida courts declined
to affirm on this ground.?'
The videotaping procedure also prejudiced Petitioner by
diluting the effect of the child’s testimony exonerating him.
20/ Although the prosecution never advanced the position at trial, the Florida
Supreme Court held the hearsay was admissible on the theory that replaying
the child’s unconfronted videotaped testimony was constitutionally equivalent
to her live, in court testimony at trial. Glendening, 536 So. 2d at 216. Absent
this holding, there was no basis for admitting the incriminating hearsay. The
only other possible constitutional basis for admitting the statements without
violating Ohio v. Roberts, 448 U.S. 56 (1980), addressed infra, or the new
Florida hearsay exception, § 90.803 (23)(a)(2)(b), was that the child was
‘‘unavailable’’ due to a risk of severe emotional harm. It is uncontested that
unavailability was never shown.
21/. The ‘‘other evidence’ on which the State relied, the medical testimony
and the Petitioner’s supposed admissions to two prison inmates, is seriously
flawed. The medical evidence as to whether the offense even occurred was sharp-
ly in dispute and inconclusive at best. The State’s medical expert, who had never
before examined a child under anesthesia for rectal abuse, admitted that she
could not say the child was injured as a result of penile penetration. R 1523.
The defense’s medical expert was experienced in rectal examinations and con-
cluded there had been no abuse. R 1907-44. The child’s regular pediatrician
and her day care teacher did not observe anything unusual or any bowel or
rectal problems in the child. R 1880-83. Also unreliable was the testimony of
a prisoner, corroborated by his fellow prisoner, that Petitioner admitted the
offense while incarcerated prior to trial. Although the prisoner was an eight-
time convicted felon, the Petitioner was precluded at trial from fully cross-
examining him regarding a possible improper sentencing deal that might have
revealed bias and motive for his false testimony. R 2446-54. Moreover, the
prisoners’ testimony, even if believed, related to a period outside the time frame
of the charges in this case. R 82, 1335, 1819-20. Finally, because the trust-
worthiness of a confession is suspect, it is not allowed into evidence without
establishment of the corpus delicti of the crime by other evidence.
17
Substituting a videotape for live testimony affects the ability of
the jury to assess the witness’ testimony in an undefined and un-
predictable manner. The camera may distort or exclude evidence
that would be before the jury if the witness had appeared. See
Hochheiser, 161 Cal. App. 3d at 786-87, 208 Cal. Rptr. at 278-79.
Certainly, testimony videotaped outside the defendant’s presence
deprives the jury of the opportunity to see ‘‘the reaction of the
witness to the physical presence of the accused,’” Commonwealth
v. Willis, 716 S.W.2d 224, 234 (Ky. 1986) (Stephens, C.J., dis-
senting), and to see the defendant’s reaction to the testimony.
The jury is simply left to assume it would indicate guilt. Videotap-
ing also provides the potential for abuse through ‘‘camera
theatrics.”’ Strickland v. State, 44 Crim. L. Rep. 2085 (Ala. 1988).
A final harmful effect of the videotaping procedure in this
case is that it supported an inference of guilt. The juxtaposition
of the child’s unconfronted exculpatory videotaped testimony with
the live presentation of her damaging hearsay statements through
articulate adults created for the jury the improper impression that
the child feared the Petitioner, making it impossible for him to
get a fair trial. The procedure is especially damaging in cases such
as this where the defendant is a relative of the child witness.
Ironically, in a post-Coy decision by the same intermediate
Florida appellate court that affirmed Petitioner’s conviction
before Coy was issued, this precise conclusion was reached on
identical facts. In Jaggers v. State, 536 So. 2d 321, 330 (Fla. 2d
D.C.A. 1988), the defendant was convicted of the same sexual
batiery offense involved here. Exactly as in this case, the video-
taped testimony of the complaining witnesses, the defendant’s
daughter and step-daughter, was favorable to the defense. Revers-
ing the conviction in words that apply with equa! force here,
Jaggers stated:
After all, these witnesses were appellant’s daughter and
step-daughter. By their protected videotaped testimony,
they denied an essential element of the charges against
appellant. Why then shield these witnesses from sight
of appellant and thereby create a possible improper in-
fluence by inference on the jury that these children were
18
afraid of their father? Doesthat inference of fear create
in the jury a thought that the children may be falsely
testifying under oath when they exonerated their father,
but on the other hand, told the truth in their unsworn
out of court statements?...By their verdict, that ap-
pears to be what the jury believed.
536 So. 2d at 330.
Properly analyzed under Coy’s ‘‘remaining evidence’’ rule,
the constitutional error in this case cannot be deemed harmless.
Because the Florida Supreme Court’s harmless error analysis
directly conflicts with Coy’s, certiorari should be granted.
Il. ADMITTING OVER OBJECTION THE
REPUDIATED HEARSAY STATEMENTS OF A
THREE AND ONE-HALF YEAR OLD COM-
PLAINING WITNESS WHO DID NOT UNDER-
STAND THE DIFFERENCE BETWEEN TELLING
THE TRUTH AND TELLING A LIE CONFLICTED
WITH OHIO V. ROBERTS AND THEREBY
VIOLATED THE PETITIONER’S SIXTH AMEND-
MENT CONFRONTATION RIGHT.
It was uncontested and the trial judge specifically found in
this case that the three and one-half year old complaining witness
did not comprehend and was not able to distinguish between the
‘truth’ and a “‘lie,’’ did not understand the concept of ‘‘good
or bad,’’ and was ‘‘unable to articulate the difference between
right and wrong or telling the truth or telling a lie.’’ R 771-72,
778-79, 787. Nevertheless, and in spite of the agreement of the
defense and the prosecution at trial that the child was not ‘‘com-
petent to testify’’ under Florida law, the Florida Supreme Court
affirmed the trial court’s holding to the contrary.”* Glendening,
536 So. 2d at 219. Because admitting the hearsay statements of
a child who cannot comprehend and distinguish between telling
22/ Under Florida law, a child witness is not competent to testify unless she
‘‘understands the duty to tell the truth or the duty not to lie.’’ Fla. Stat. §
90.605(2) (1987). Although the Florida Supreme Court stated portions of the
record supported a finding of competency, no such portions are presented in
its opinion. 536 So. 2d at 219. The intermediate appellate court declined even
to decide the issue. 503 So. 2d at 340.
19
the truth and telling a lie unavoidably conflicts with the reliability
and trustworthiness requirements of this Court’s decision in Ohio
v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980),
certiorari should be granted.
In Roberts, this Court held that when a hearsay declarant
is not present for confrontation and cross-examination at trial,
the sixth amendment requires a showing that (1) the declarant
is unavailable for trial and (2) the declarant’s out-of-court
statements bear sufficient ‘‘indicia of reliability’ to provide the
jury with an adequate basis for evaluating the truth. 448 U.S.
at 62-66, 100 S. Ct. at 2536-39. The primary and critical con-
sideration under the confrontation clause for determining the ad-
missibility of hearsay is the reliability of the out-of-court state-
ment. To that end, the focus of the Supreme Court has been to
ensure that there ‘‘are indicia of reliability which have been widely
viewed as determinative of whether a statement may be placed
before the jury though there is no confrontation of the declarant.”’
Dutton v. Evans, 400 U.S. 74, 89, 91S. Ct. 210, 220, 27 L. Ed.
2d 213 (1970), quoted in Ohio v. Roberts, 448 U.S. at 65, 100
S. Ct. at 2539.
The only basis for admitting the child’s hearsay statements
in this case was Florida’s new statutory child abuse hearsay excep-
23/ Although the Florida Supreme Court held that for confrontation clause
purposes the replaying of the child’s unconfronted videotaped testimony was
equivalent to her presence at trial under Roberts and the new Florida hearsay
exception, Glendening, 536 So. 2d at 216-17, this conclusion cannot withstand
scrutiny under Coy. The Florida Supreme Court’s equivalency holding rests
entirely on the misperception that the Petitioner’s confrontation rights were
fully protected so long as he had the opportunity to cross-examine the child
when she was videotaped, even though he was at the time behind a two-way
mirror and unable to confront her face-to-face. Jd. at 217. This exact reason-
ing - that the right to face-to-face physical confrontation is not violated so long
as there is an opportunity for cross-examination - was completely rejected by
Coy. Coy underscores that the literal right to face-to-face physical confronta-
tion at the time of trial, unlike other implicit rights for which exceptions have
been created, such as cross-examination, is at the core of the values furthered
by the confrontation clause. 108 S. Ct. at 2802-03. This is consistent with the
principle implicit in Ohio v. Roberts that presence for cross-examination a/
trial means the witness has appeared live and in court, or, at a bare minimum,
the defendant was able to physically confront the witness face-to-face when
the previous statements were made. 100 S. Ct. at 2537-39.
20
tion. Glendening, 503 So. 2d at 336. Because no presumptively
reliable ‘‘firmly rooted’”’ hearsay exception applied, under Roberts
the State was required to show reliability and particularized
guarantees of trustworthiness before the statements could be
allowed into evidence. 448 U.S. at 66, 100 S. Ct. at 2539.
The incriminating hearsay statements in issue in this case
were made by a three and one-half year oid child who, the trial
court found, lacked any understanding of the concepts of truth
and falsity, good and bad, and right and wrong. She also lacked
the ability to distinguish between those concepts. Whether such
a child is labeled ‘‘competent’’ or ‘‘incompetent’’ under state law,
or indeed whether an individual state even requires its witnesses
to be competent, the hearsay statements of such a child logically
cannot possess the reliability and trustworthiness the confronta-
tion clause demands. The Florida Supreme Court’s holding to
the contrary conflicts with the principle of Ohio v. Roberts.**
The trial judge’s finding that the three and one-half year old
lacked any understanding of truth or falsity was made on the
eve of trial. Her incriminating hearsay statements had been uttered
months earlier, when the child was younger and even less likely
to have understood the difference between telling the truth and
telling a lie. Additionally, when the hearsay statements were made,
the child was in an environment where she was susceptible to *
leading and suggestive questioning. In contrast to the more neutral
court-like setting of the competency hearing, where the child pro-
claimed the Petitioner’s innocence in the presence of the judge
and representatives for both sides, the damaging hearsay was
elicited in closed interview sessions with social workers, police,
and others. Under these circumstances, that the child possessed
at least some understanding of truth and falsity was an absolute
24/ See Frank, Confronting Child Victims of Sex Abuse: The Unconstitu-
tionality of the Sexual Abuse Hearsay Exception, 7 U. Puget Sound L. Rev.
387, 397-98 (1984), which stated ‘‘The confrontation clause cf the United States
Constitution bars the admission of hearsay by testimonially incompetent
children,’’ and noted that corroboration of such hearsay will not insure trust-
worthiness. Relatedly, in considering the admissibility of hearsay statements
by an incompetent child, the Montana Supreme Court recently identified the
child’s ability to differentiate truth and falsity as one of several factors to weigh.
State v. J.C.E., 767 P.2d 309, 315 (Mont. 1988).
; 21
necessity to assure her hearsay statements were trustworthy and
reliable under Roberts.?°
In a similar situation, the Supreme Court of Rhode Island
reversed a child sex abuse conviction because the trial court ad-
mitted hearsay statements of a four year old who could not ap-
preciate the concept of truthfulness and was testimonially in-
competent under that state’s law. State v. Paster, $24 A.2d 587
(R.1. 1987). Although the child in Paster was ruled incompetent,
the reasoning of the case applies with equal force here. If a child
witness cannot distinguish between truth and falsity, her trust-
worthiness and reliability cannot possibly be enhanced by hav-
ing her tainted testimony presented second-handed to the jury
by another person:
If an infant is ruled incompetent at the time of trial
because she is only four years old, assertions made by
that infant a year earlier cannot be considered inherent-
ly more reliable. Logic dictates that, if anything, they
are less reliable.
Id. at 590. The principle has been recognized in other states. See
State v. Segerberg, 131 Conn. 546, 547-48, 41 A.2d 101, i03
(1945) (reversing child sex abuse conviction because tria! court
admitted hearsay statements of testimonially incompetent child);
25/_ It has been recognized with increasing frequency that in the closed inter-
views between children and social workers or others, where much of the in-
criminating hearsay is elicited, the child is pressured and her responses are often
the product of leading and suggestive questioning. The questioning is often
biased and premised on the assumption that the abuse did in fact occur. See
Mclver, The Case for a Therapeutic Interview in Situations of Alleged Sexual
Molestation, THE CHAMPION, Jan./Feb. 1986 at 11, 11-13. The interviewers
have no motive to develop facts favorable to the accused, which calls into ques-
tion the completeness of out-of-court statements they convey. Davis, Confronta-
tion and Hearsay Statements of Child Victims of Sexual Abuse, Fla. B.J., Oct.
1988 at 33. The instant record indicates a significant likelihood that such flaws
infected the interview and investigative process here. A social worker who pro-
vided critical incriminating hearsay testimony acknowledged that she was ask-
ed to ‘‘confirm’’ the allegations against the Petitioner. R 2037-38. Even the
trial court observed that the incriminating hearsay responses to which the social
worker testified lacked spontaneity and were mostly ‘‘yes’’ answers to ques-
tions posed by the social worker. The trial judge remarked that he could not
interpret the child’s incriminating answers as ‘‘yes’’ responses ‘‘other than [the
social worker] saying that’s a yes.”’ R 1756.
22
Ketcham v. State, 240 Ind. 107, 162 N.E.2d 247 (Ind. 1959); State
v. Wilson, 156 Ohio St. 526, 103 N.E.2d 552 (1952) (reversing
conviction in child sex abuse case where deposition of child in-
troduced without prior determination of child’s competency).”®
That the instant case involves the emotion-charged allega-
tion of child sexual abuse heightens the necessity for scrupulous
enforcement of Roberts’ reliability and trustworthiness re-
quirements. Merely because such charges are made ‘‘does not
warrant admitting statements by an incompetent witness untested
by cross-examination into evidence where the liberty of one
charged with a serious crime hangs in the balance.’’ Paster, 524
A.2d at 591 (citing Ketcham v. State, 240 Ind. at 113-14, 162
N.E.2d at 250).
The practical realities and frequent manipulation and misuse
of child abuse prosecutions also compel strict enforcement of
Roberts’ criteria.?’ As this case vividly illustrates, notwithstand-
ing the states’ varying definitions of competency, before admit-
ting a child declarant’s hearsay statements, Roberts’ reliability
and trustworthiness requirement demands that she have at least
some understanding of and appreciation for the concept of
truthfulness and the difference between telling the truth and telling
a lie. With an accusation so fraught with potential for abuse,
26/ The necessity for a competent declarant has even been acknowledged in
the civil setting. For example, in Huff v. White Motor Corp., 609 F.2d 286,
293-94 (7th Cir. 1979), the Seventh Circuit held that where a declarant lacks
the mental capacity to make a responsible statement, the declarant’s hearsay
statements lose all circumstantial guarantees of trustworthiness.
27/ A high percentage of reports of abuse are unfounded (65% according
to Congressional testimony by the former director of the National Center on
Child Abuse and Neglect), and a percentage of these (25% in an area near the
Petitioner’s home, see Abusing the System, Tampa Tribune, Sept. 7, 1987, at
10-A, col. 2) are knowingly false. Moreover, statistics indicate a large percent-
age of false child abuse accusations are brought by a parent in acrimonious
marital circumstances, and that false charges are often a result of ulterior motives
or the accusing parent’s own personality disturbance. See Benesck & Schetsky,
Allegations of Sexual Abuse and Child Custody Cases, Emerging Issues in Child
Psychiatry and the Law, Spring 1985; Gordon, False Accusations of Abuse
in Child Custody Disputes, New L.J., July 1985; Blodgett, Coping With Child
Abuse, 73 A.B.A. J. 26 (May 1987). Significantly, in this case, the originai
suggestion of abuse came from the Petitioner’s estranged wife, an admitted
abuser of cocaine and marijuana. R 1335, 1371-75.
23
this much is a constitutional necessity.?8
Ill. APPLYING FLORIDA’S NEW STATUTORY
CHILD ABUSE HEARSAY EXCEPTION TO AN
OFFENSE OCCURRING BEFORE ITS EFFECTIVE
DATE TO ALLOW OTHERWISE INADMISSIBLE
HEARSAY INTO EVIDENCE ON THE THEORY
THAT UNCONFRONTED VIDEOTAPED
TESTIMONY IS CONSTITUTIONALLY
EQUIVALENT TO LIVE, CONFRONTED
TESTIMONY AT TRIAL SUBSTANTIALLY
DIMINISHED THE CONSTITUTIONAL RIGHT
rO CONFRONTATION IN VIOLATION OF THE
PROHIBITION AGAINST EX POST FACTO
LAWS.
Based on its conclusion that the statute is merely procedural
and does not affect substantial personal rights, the Supreme Court
of Florida held that application of the new child abuse hearsay
exception to Petitioner did not violate the constitutional prohibi-
tion against ex post facto laws.”® Glendening, 536 So. 2d at 215.
The Florida Supreme Court’s classification of a statute that
significantly diminishes an accused’s constitutional right to con-
front the witnesses against him at trial as purely procedural con-
flicts in principle with this Court’s ex post facto decisions.
A “‘seemingly procedural form,’’ Weaver v. Graham, 450
U.S. 24, 29.12, 101 S. Ct. 960, 964 n.12, 67 L. Ed. 2d 17 (1981),
will not save a statute from application of the ex post facto
clauses.*° Substance rather than form is determinative. As this
Court noted long ago, ‘‘[e]very law that alters the legal rules of
evidence, and receives less, or different testimony, than the law
28/ Unfortunately, even when a defendant is vindicated, the effects of hav-
ing been accused of child abuse linger on. Dunn, Accusation Makes Life a
Nightmare, Tampa Tribune, Mar. 19, 1989, at 12-1, col. 4 (charges dismissed
but house mortgaged and angry neighbors); Fla. Stat. Ann. § 415.504(4)(c) (West
Supp. 1989) (unfounded reports maintained for one year, where abuse is in-
dicated or confirmed report maintained for seven years).
29/ The sexual battery was alleged to have occurred between September 1,
1984, and June 24, 1985. R 82. The new statutory exception to Florida’s hear-
say rule became effective on July 1, 1985.
30/_ U.S. Const., Art. I, § 9, cl. 3; Art. I, § 10, cl. 1.
24
required at the time of commission of the offense, in order to
convict the offender,’’ Calder v. Bull, 3 Dall. 386, 390, 1 L. Ed.
648 (1798), quoted in Miller v. Florida, io. , 107S.
Ct. 2446, 2450, 96 L. Ed. 2d 351 (1987), violates the ex post facto
prohibition. Such laws alter ‘‘substantial personal rights.’’ Beazell
v. Ohio, 269 U.S. 167, 171, 46S. Ct. 68, 69, 70 L. Ed. 216 (1925).
This Court’s decision in Coy makes clear that a defendant’s
right to literal face-to-face confrontation is a substantial personal
right. It cannot be infringed unless necessary to further an im-
portant public policy. Coy, 108 S. Ct. at 2803. Although this
Court has never recognized an exception to the confrontation
right, by allowing into evidence the complaining witness’ hear-
say statements on the theory that her unconfronted videotaped
testimony was equivalent to live, confronted testimony at trial,
Glendening, 536 So. 2d at 216-17, the Supreme Court of Florida
has now created one.
As a result, Florida’s new statutory hearsay exception
significantly diminished the Petitioner’s constitutional right to
confrontation, thereby operating to his serious detriment. Its
retrospective application to the Petitioner, as candidly
acknowledged by the intermediate appellate court’s decision,
made the offense ‘‘easier to prove.’’ p. A-48, infra. When on
rehearing the court was reminded that making an offense ‘easier
to prove”’ was a prohibited ex post facto effect, it merely replaced
the language in question with ‘‘simply authorized the introduc-
tion of additional evidence to demonstrate his guilt.’? 503 So.
2d at 337-38. This facile substitution, made by the state appellate
court before this Court’s Coy decision was announced, overlook-
ed the serious detrimental impact of allowing the admission of
hearsay evidence based on the declarant’s testimony in the absence
of face-to-face confrontation.
This Court should grant certiorari to correct this serious
shortening of the reach of the ex post facto prohibition and to
rectify the undermining of the right to face-to-face confronta-
tion that unavoidably resulted.
25
CONCLUSION
Petitioner Glendening is now serving a life sentence because
the Supreme Court of Fldrida resolved critical issues of national
importance in ways that conflict with the right to face-to-face
confrontation as recently articulated in Coy v. Jowa, the reliability
and trustworthiness requirements of Ohio v. Roberts, and the
line of cases prohibiting ex post facto application of the laws.
Left uncorrected, the Florida Supreme Court’s opinion will
dramatically undermine those rights, not only in Florida but in
all the jurisdictions now grappling with these difficult but crucial
issues in the context of child abuse prosecutions.
Certiorari should be granted so that all jurisdictions will
know that an exception to the core right to face-to-face confron-
tation cannot rest on the legislatively imposed presumption of
trauma disapproved in Coy, even if a statute requires findings
in support of that insufficient presumption. Certiorari should also
be granted so that all jurisdictions will know that the hearsay
statements of a three and one-half year old chiid who does not
understand the difference between truth and falsity or good and
bad cannot possess the trustworthiness and reliability required
by Ohio v. Roberts. Finally, certiorari should be granted so that
all jurisdictions will know that a statute that makes it easier to
convict by creating the first known exception to the sixth amend-
ment’s literal right to face-to-face confrontation cannot be ap-
plied retroactively.
Respectfully submitted,
S frat Marlom ae
Stuart C. Markman FB #322571
Counsel of Record
Susan H. Freemon FB #344664
WINKLES, TROMBLEY, KYNES
& MARKMAN, P.A.
707 N. Franklin Street
Tenth Floor
P.O. Box 3356
Tampa, Florida 33601
813/229-7918
Counsel for Petitioner
26
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that a true copy of the foregoing has
been furnished by U.S. Mail to the Office of the Attorney
General, Suite 804, Park Trammel Building, 1313 Tampa Street,
Tampa, Florida 33602 this 4th day of May, 1989.
Stuart C. Markman
APPENDIX
A-]
David Edward
GLENDENING, Appellant,
STATE of Florida, Appellee.
No. 86-88.
District Court of Appeal of Florida,
Second District.
Jan. 14, 1987.
As Modified on Denial of Rehearing
March 6, 1987.
Defendant was convicted of sexual battery of child 11 years
of age or younger, by the Circuit Court, Sarasota County,
Andrew Owens, Jr., J., and defendant appealed. The District
Court of Appeal, Grimes, J., held that: (1) statute which allow-
ed admission of hearsay statements made by child sexual abuse
victim did not violate defendant’s state or federal right to con-
front adverse witnesses; (2) admission of out-of-court statements
pursuant to statute which was enacted after alleged offense was
committed did not constitute ex post facto application of law;
(3) court substantially complied with statutory requirement that
it make finding outside presence of jury that time, content, and
circumstances of statement made by child sexual assault victim
provided sufficient safeguards of reliability; (4) for purposes of
statute, introduction of child’s videotaped testimony was
equivalent to her having personally testified; and (5) fact that
child was unable to articulate difference between truth and lie
did not render out-of-court statement concerning sexual abuse
unreliable for admission under statute.
Affirmed.
1. Criminal Law 662.8
Statute which permitted admission of hearsay statements
made by child victim of sexual abuse to third party in trial of
alleged offender did not violate either state or federal constitu-
tional guarantee to right to confront adverse witnesses, as statute
only permitted admission of hearsay testimony if declarant was
available for cross-examination at trial, or if found to be
unavailable, statement had adequate indicia of reliability. West’s
F.S.A. § 90.803(23); West’s F.S.A. Const. Art. 1, § 16; U.S.C.A.
Const.Amend. 6.
2. Constitutional Law 199
Ex post facto law is one which either punishes an act which
was innocently committed, makes punishment for offense more
burdensome, or deprives accused of defense which was available
when offense was committed.
3. Constitutional Law 202
Admission of hearsay testimony by child victim of sexual
abuse against defendant at trial, pursuant to statute which was
enacted after alleged offense occurred did not constitute ex post
facto law, as allowing hearsay testimony into evidence did not
increase punishment or deprive defendant of defense, and had
no effect upon whether defendant committed a crime, but simply
authorized introduction of additional evidence to demonstrate
his guilt. West’s F.S.A. § 90.803(23); West’s F.S.A. Const. Art.
1, § 10; U.S.C.A. Const. Art. 1, § 10, cl. 1.
4. Criminal Law 681(1)
Court substantially complied with statutory requirement that
court make finding in hearing conducted outside presence of jury
that time, content and circumstances of hearsay statement pro-
vided sufficient safeguards of reliability as required by statute,
which permitted introduction of hearsay evidence made by child
sexual assault victim, where court announced findings when
defendant objected to testimony by certain witnesses, though it
did not announce findings after defendant made untimely ob-
jection or objected only to relevance rather than failure to abide
by statutory procedure. West’s F.S.A. § 90.803(23)(a)1.
5. Criminal Law 419(4)
Statute which allowed for hearsay testimony made by child
victim of sexual assault to be admitted into evidence if child
testified as witness or was unavailable was complied with, though
child did not appear before jury, where child testified on videotape
in presence of court, prosecutor, and defense counsel. West’s
F.S.A. § 90.803(23)(a)2.
A-3
6. Criminal Law 419(5)
Mere fact that child had been deemed incompetent to testify
will not render his out-of-court statements concerning child abuse
or sexual abuse unreliable for admission under statute which
allows admission of hearsay statements made by child victim of
sexual abuse. West’s F.S.A. § 90.803(23).
Ronald K. Cacciatore, Tampa, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Kim W. Munch,
Asst. Atty. Gen., Tampa, for appellee.
GRIMES, Judge.
This is an appeal from a conviction of sexual battery on a
child eleven years of age or younger.
The major thrust of appellant’s argument is that the court
erred in admitting out-of-court statements made by Jennifer
Glendening, the appellant’s 32 year-old daughter, which im-
plicated appellant. The testimony concerning these statements
could only have been admitted under section 90.803(23), Florida
Statutes (1985). Appellant not only attacks the constitutionality
of the statute and argues its inapplicability to him but also con-
tends that there was no compliance with its requirements.
Section 90.803(23) reads as follows:
(23) HEARSAY EXCEPTION; STATEMENT OF
CHILD VICTIM OF SEXUAL ABUSE OR SEXUAL OF-
FENSE AGAINST A CHILD.—
(a) Unless the source of information or the method or
circumstances by which the statement is reported indicates
a lack of trustworthiness, an out-of-court statement made
by a child victim with a physical, mental, emotional, or
developmental age of 11 or less describing any act of child
abuse, sexual abuse, or any other offense involving an
unlawful sexual act, contact, intrusion, or penetration per-
formed in the presence of, with, by, or on the declarant
child, not otherwise admissible, is admissible in evidence in
any civil or criminal proceeding if:
A-4
1. The court finds in a hearing conducted outside the
presence of the jury that the time, content, and circum-
stances of the statement provide sufficient safeguards of
reliability. In making its determination, the court may con-
sider the mental and physical age and maturity of the child,
the nature and duration of the abuse or offense, the rela-
tionship of the child to the offender, the reliability of the
assertion, the reliability of the child victim, and any other
factor deemed appropriate; and
2. The child either:
a. Testifies; or
b. Is unavailable as a witness, provided that there is
other corroborative evidence of the abuse or offense.
Unavailability shall include a finding by the court that the
child’s participation in the trial or proceeding would result
in a substantial likelihood of severe emotional or mental
harm, in addition to findings pursuant to s. 90.804(1).
(b) In acriminal action, the defendant shall be notified
no later than 10 days before trial that a statement which
qualifies as a hearsay exception pursuant to this subsection
will be offered as evidence at trial. The notice shall include
a written statement of the content of the child’s statement,
the time at which the statement was made, the circumstances
surrounding the statement which indicate its reliability, and
such other particulars as necessary to provide full disclosure
of the statement.
(c) The court shall make specific findings of fact, on
the record, as to the basis for its ruling under this subsection.
(i) In arguing facial unconstitutionality, appellant contends
that section 90.803(23) violates the sixth amendment to the United
States Constitution and article I, section 16, of the Florida Con-
stitution, both of which guarantee an accused the right to con-
front adverse witnesses. However, the United States Supreme
Court has held that the confrontation clause is satisfied when
a declarant whose out-of-court statement is sought to be intro-
duced is available for cross-examination at the trial or if found
to be unavailable, the statement bears adequate ‘“‘indicia of
reliability.’”” Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65
L.Ed.2d 597 (1980). Section 90.803(23) tracks the requirements
of Ohio v. Roberts.
Comparable statutes providing for the admissibility of out-
of-court statements by child abuse victims have been held con-
stitutional in other jurisdictions. State v. Myatt, 237 Kan. 17,
697 P.2d 836 (1985); State v. Bellotti, 383 N.W.2d 308 (Minn.Ct.
App.1986); State v. Ryan, 103 Wash.2d 165, 691 P.2d 197 (1984).
The statute is intended to allow the courts to be sensitive
to the critical need for a child victim’s out-of-court
statements, while allowing them to address the various
reliability problems posed by the statements, thus protect-
ing the defendant’s confrontation rights.
697 P.2d at 842. We hold that section 90.803(23) does not violate
the confrontation clauses of the United States and Florida
Constitutions.
[2,3] Appellant also argues that since he was charged with
a criminal offense occurring between September 1, 1984, and June
24, 1985, the provisions of section 90.803(23) cannot be employed
against him because the statute did not become effective until
July 1, 1985. He contends that the admission of the out-of-court
statements which are covered by that statute constituted an ex
post facto application of the law. An ex post facto law is one
which either punishes an act which was innocent when committed,
makes the punishment for the offense more burdensome, or
deprives the accused of a defense which was available when the
offense was committed. Dobbert v. Florida, 432 U.S. 282, 97
S.Ct. 2290, 53 L.Ed.2d 344, rehearing denied, 434 U.S. 882, 98
S.Ct. 246, 54 L.Ed.2d 166 (1977). Clearly, section 90.803(23) did
not increase the punishment or deprive appellant of a defense.
Moreover, the statute had no effect upon whether appellant com-
mitted the crime but simply authorized the introduction of addi-
tional evidence to demonstrate his guilt. State v. Ryan. Thus,
section 90.803(23) as applied to appellant did not violate article
I, section 10, of the United States and Florida Constitutions.
Finally, appellant argues that even under the statute, the
court erred in permitting several witnesses to testify that Jennifer
had made prior statements to them concerning the misconduct
with which he was charged. In order to address this point, it is
first necessary to discuss certain matters which took place dur-
ing the progress of the case.
A-6
Prior to trial, the state served a motion to video tape Jen-
nifer’s testimony for introduction at trial pursuant to section
92.53, Florida Statutes (1985). After hearing evidence on the mo-
tion and making the requisite finding that there was substantial
likelihood that Jennifer would suffer at least moderate emotional!
or mental harm if she were required to testify in open court, the
court entered an order permitting the video taping and requir-
ing appellant to view the testimony outside Jennifer’s presence.
At the video taping session, the court first conducted a voir
dire examination of the child to determine her competency to
testify. The court concluded that she was competent because she
showed an above average intelligence for a 3% year-old and was
aware of her surroundings. The court attributed her inability to
explain the difference between the truth and a lie to the inartful
questioning by the court and the state attorney. Thereafter, when
the child was interrogated concerning the matters involved in the
case, she did not implicate her father in any misconduct. As a
consequence, appellant did not object to the introduction of the
video tape into evidence at the trial and, in fact, caused it to be
replayed as part of his defense. Hence, there is no contention
on appeal over the admissibility of the video tape. However, the
fact that the video tape was authorized and played at the trial
is relevant to our subsequent discussion.
About a month before trial, appellant made a motion to ex-
clude all hearsay statements made by the child. The state filed
a response in-which it enumerated the various hearsay statements
it intended to introduce. The court ruled that the state’s response
did not constitute adequate compliance with the notice re-
quirements of section 90.803(23) and permitted the state to file
a more detailed response. Thereafter, but more than ten days
before trial, the state filed a detailed recitation of the out-of-court
statements to be offered at trial in order to comply with the notice
mandated by section 90.803(23)(b). At a subsequent hearing, the
court observed that it could not rule upon the admissibility of
such statements without actually hearing the witnesses’ testimony
concerning the circumstances under which the child’s statements
were made.
Dr. Linda Boczar was the first of the witnesses listed on the
notice who testified. However, appellant cannot now complain
about her testimony because his counsel stated at the trial that
he had no objection to her stating what Jennifer had told her.
A-7
The next of the disputed witnesses was Rebecca Winkel, a
coordinator for the child protection team. Ms. Winkel testified
concerning the circumstances under which the child made in-
criminating statements about her father and the content of such
statements. Except for an initial objection on grounds of corpus
delicti, the appellant did not object to this testimony until after
it was given. At this point, appellant objected on hearsay grounds,
whereupon the court asked the jury to be removed and made the
following statement on the record:
THE COURT: At this time Mr. Dirmann had raised
an objection concerning the hearsay exception to some of
the testimony by Mrs. Winkel. The court would feel that
the objection has been waived in view of the timing of the
objection but in an abundance of caution and in view of
the fact that we’re all operating under a brand new legislative
enactment, which only came into effect this year, amending
section 90.803 and allowing, making an exception of children
or child victim statements of sexual abuse, which requires
the court to have a hearing conducted outside the presence
of the jury as to the time, content and circumstances of the
statement providing sufficient safeguards of reliability in
making the determination. The court has heard the testimony
of Mrs. Winkel concerning the doll interview. Based upon
the testimony presented by Mrs. Winkel here under oath
the court would find as to the time, I’m not certain of the
exact time but there was certainly no coercion of the child,
that the interview was conducted with a period of play where
the child became familiar with the interviewer and that she
was not prompted by the interviewer in the use of the dolls
and describing these alleged sexual acts. The court would
find that the content and the circumstances surrounding the
statement under these circumstances would provide suffi-
cient safeguards of reliability to allow the admission of that
testimony as an exception to the hearsay rule under subsec-
tion 23.
The third witness to testify concerning what Jennifer had
told her was Detective Barber. When the appellant objected on
grounds of hearsay and of relevance to section 90.803(23), the
court listened to a proffer of her testimony outside the presence
of the jury. The court then ruled that because the child’s state-
ment to Detective Barber was not a direct reference to child abuse
or sexual abuse, Detective Barber could not testify unless the state
could demonstrate that the child’s statement was relevant to prov-
A-8
ing that appellant was guilty of such misconduct. Later in the
trial the state introduced other evidence which showed how Jen-
nifer’s statement to Detective Barber was relevant to prove that
Jennifer's father had sexually abused her. Thereupon, the court
permitted Detective Barber to state what the child had told her.
The last witness who testified concerning the child’s state-
ments was Ruth Shapiro, a social worker at the Suncoast Mental
Health Center. At the outset, the court conducted a hearing out-
side the presence of the jury to determine whether Ms. Shapiro
could testify concerning the child’s hearsay statements. Ms.
Shapiro was interrogated at length concerning the content of the
statements and the circumstances under which they were made.
The court excluded certain statements and ruled that others could
be admitted since they met the standards of section 90.803(23).
[4] In regard to the argument that the requirements of the
statute were not followed, appellant first contends that the court
failed to make a finding ‘‘in a hearing conducted outside the
presence of the jury that the time, content and circumstances of
the statement provide sufficient safeguards of reliability’ as
required by section 90.803(23)(a)1. With respect to Ms. Winkel,
we concur with the court’s conclusion that appellant’s hearsay
objection was untimely. In any event, at the point the objection
was made, the court then removed the jury and made the requisite
findings predicated upon the testimony which had already been
presented.
When the state recalled Detective Barber to the stand, ap-
pellant did not object on grounds of hearsay, as such, but only
argued relevancy. By this time, however, the state had demon-
strated how the child’s statement was directly related to the con-
tention that her father had abused her, and the court properly
rejected appellant’s argument on this issue. The court was ob-
viously satisfied with the credibility of the child’s statements to
Detective Barber because the detective had previously testified
outside the presence of the jury. The court cannot be faulted for
failing to announce the findings specified by section
90.803(23)(a)1. when appellant was then only arguing relevance
and was making no objection to the procedure being followed.
Significantly, appellant does not assert that the court did
not comply with the procedural aspects of section 90.803(23) with
respect to Ms. Shapiro’s testimony. By the time Ms. Shapiro
testified, everyone had become familiar with the intricacies of
A-9
the statute. Her testimony was first proffered outside the presence
of the jury. There was ample evidence to support the court’s find-
ing that Jennifer’s out-of-court statements made to Ms. Shapiro
were reliable.
[5] Appellant further argues that even if the court sub-
stantially complied with the requirements of subparagraph 1. of
section 90.803(23)(a), the court made no finding whatsoever with
respect to subparagraph 2. which requires that the child either
testify or be unavailable as a witness. Appellant notes that in order
to be declared unavailable for purposes of this subparagraph,
the child would have to meet the definition of unavailability under
section 90.804(1) or the court would have to conclude that the
child’s participation in the trial would result in ‘‘a substantial
likelihood of severe emotional or mental harm.’’ We cannot
sustain the state’s response that the hearing previously conducted
for the purpose of deciding whether to permit the child’s
testimony to be video taped would suffice.-Aside from the fact
that the hearing was held for a different purpose, the standard
for permitting video taping is whether the child would suffer at
least moderate emotional or mental harm, whereas a finding of
unavailability is predicated upon a substantial likelihood of severe
emotional or mental harm. Notwithstanding, we believe that it
was unnecessary that the court make a finding of unavailability
in this case because the child did, in fact, testify. Her testimony
was taken before the court with participation by both attorneys
just as it would have been had the child been physically present
at trial. Appellant was in a position to cross-examine her con-
cerning the out-of-court statements because the state’s notice for
introduction of these statements had already been filed. There-
fore, we hold that for purposes of section 90.803(23)(a)2., the
introduction of Jennifer’s video tape was equivalent to her hav-
ing personally testified.
[6] Finally, appellant also contends that the court’s findings
that Jennifer’s statements were reliable cannot be sustained
because it was demonstrated in her video taped testimony that
she was unable to articulate the difference between the truth and
a lie, an essential element of the traditional test for determining
the competency of a witness of tender years. Bell v. State, 93
So.2d 575 (Fla.1957). See § 90.605(2), Fla.Stat. (1985). It is dif-
ficult to see how appellant can rely on Jennifer’s testimony to
demonstrate unreliability when he caused the video tape to be
replayed as part of his own case. In any event, we do not need
to reach the question of whether the court correctly concluded
A-10
that Jennifer was competent to testify because this is not the
criterion for the introduction of hearsay statements under sec-
tion 90.803(23). The mere fact that a child has been deemed in-
competent to testify will not render his out-of-court statements
concerning child abuse or sexual abuse unreliable for admission
under section 90.803(23). See State v. Superior Court, 149 Ariz.
397, 719 P.2d 283 (Ct.App.1986); State v. Myatt; State v. Bellotti;
State v. Campbell, 299 Or. 633, 705 P.2d 694 (1985); Contra State
v. Ryan. The record adequately supports the court’s conclusion
that Jennifer’s out-of-court statements were sufficiently reliable
for introduction into evidence.
Appellant’s other points on appeal are without merit.
Affirmed.
DANAHY, C.J., and HALL, J., concur.
A-1]
David Edward
GLENDENING, Petitioner,
Vv.
STATE of Florida, Respondent.
No. 70346.
Supreme Court of Florida.
Dec. 1, 1988.
Rehearing Denied Feb. 3, 1989.
Defendant was convicted of sexual battery of child 11 years
of age or younger, by the Circuit Court, Sarasota County,
Andrew Owns, Jr., J., and he appealed. The District Court of
Appeal, 503 So.2d 335, Grimes, J., affirmed, and defendant
applied for review. The Supreme Court, Ehrlich, C.J., held that:
(1) statute allowing admission of hearsay statements of children
regarding sexual abuse was constitutional; (2) application of
statute to defendant did not violate prohibition against ex post
facto laws; (3) allowing child’s testimony to be video taped did
not violate defendant’s right of confrontation; (4) judge was not
required to determine whether child was testimonially competent
prior to allowing admission of hearsay statements; (5) admission
of expert testimony that defendant was person who sexually
abused victim was not fundamental error; and (6) defendant
waived issue of whether expert improperly vouched for credibility
of hearsay declarant.
Affirmed.
Overton, J., concurred in result only.
1. Criminal Law 662.8
Statute which allowed admission of hearsay statements by
children concerning sexual abuse did not violate confrontation
clause; in order for statements to be admitted court was first
required to find, in a hearing, that time, content, and cir-
cumstances of statement provided sufficiency of guards of
reliability and child must either testify or be unavailable as a
witness. West’s F.S.A. § 90.803(23); U.S.C.A. Const. Amend.
6; West’s F.S.A. Const. Art. 1, § 16.
A-12
2. Constitutional Law 202
Infants 12
Application at trial of statute which allowed admission of
hearsay statements made by children regarding sexual abuse,
which statute was not in effect at time of offense, did not violate
prohibition against ex post facto laws; statute did not effect crime
with which defendant was charged, punishment prescribed
therefore, or quantity or degree of proof necessary to establish
guilt. West’s F.S.A. § 90.803(23); U.S.C.A. Const. Art. 1, §§
. 2. 3, Baek
3. Infants 20
Videotaped testimony of child sexual abuse victim was
‘‘testimony’’ under statute allowing admission of hearsay state-
ments by children regarding sexual abuse when child testifies.
West’s F.S.A., §§ 90.803(23), 92.53(1).
See publication Words and Phrases for other judicial construc-
tions and definitions.
4. Criminal Law 662.1 :
Allowing child sexual abuse victim’s testimony to be video-
taped and shown to jury rather than given live in open court did
not violate defendant’s right to confront witness; evidence showed
that child would have suffered emotional and mental harm had
the child been forced to testify in court, and defendant was per-
mitted to watch testimony behind two-way mirror and conduct
full cross-examination of child. U.S.C.A. Const.Amend. 6;
West’s F.S.A. Const. Art. 1, § 16; West’s F.S.A. §§ 90.803(23),
92.53(4).
5. Criminal Law 1168(2)
Child sexual abuse victim’s testimony did not implicate
defendant in any wrongdoing, and child specifically stated that
defendant had not hurt her, rendering testimony totally excul-
patory, and thus any error in denying defendant opportunity to
confront child witness face-to-face was harmless beyond a
reasonable doubt. U.S.C.A. Const.Amend. 6; West’s F.S.A.
Const. Art. 1, § 16.
A-13
6. Infants 20
Even if child sexual abuse victim’s videotaped testimony was
not ‘‘testimony’’ under statute allowing admission of hearsay
statements of children regarding sexual abuse when child testifies
and, requiring other corroborative evidence of abuse when child
does not testify, child’s hearsay statements were sufficiently cor-
roborated by medical testimony and by two witnesses that testified
that defendant admitted to them that he committed the sexual
abuse. West’s F.S.A. § 90.803(23).
7. Infants 20
Trial judge was not required to determine that chiid sexual
abuse victim was competent to testify in order to allow, under
evidence statute, admission of hearsay statements made by child
concerning sexual abuse, but rather was only required to deter-
mine that statements were trustworthy and reliable. West’s F.S.A.
§ 90.803(23).
8. Criminal Law 469
Qualified expert in interviewing child sexual abuse victims
was entitled to express opinion on issue of whether child had been
sexually abused. West’s F.S.A. §§ 90.702, 90.703.
9. Criminal Law 469
Qualified expert in interviewing child sexual abuse victims
was not entitled to give opinion as to whether defendant was
child’s abuser, and admission of such testimony was error. West’s
F.S.A. §§ 90.403, 90.702, 90.703.
10. Criminal Law 1036.6
Any error in admission of testimony of child sexual abuse
expert that defendant was person who sexually abused victim was
not fundamental error, and because defendant did not object to
testimony or move to strike, court would not consider propriety
of remark on appeal. West’s F.S.A. § 90.403.
11. Criminal Law 1043(3)
Defendant’s objection to expert testimony as irrelevant did
not preserve for appeal issue of whether testimony had effect of
A-14
improperly vouching for credibility of hearsay declarant.
Stuart C. Markman of Winkles, Trombley, Kynes & Mark-
man, P.A., Tampa, and Ronald K. Cacciatore, P.A., Tampa,
for petitioner.
Robert A. Butterworth, Atty. Gen., and Katherine V. Blanco
and Kim W. Munch, Asst. Attys. Gen., Tamp. ‘or respondent.
EHRLICH, Chief Justice.
We have for review Glendening v. State, 503 So.2d 335
(Fla.2d DCA 1987), in which the district court expressly declared
valid section 90.803(23), Florida Statutes (1985). We have jurisdic-
tion. Art. V, § 3(b)(3), Fla. Const.
On July 26, 1985, Glendening was charged by intormation
with sexual battery upon a child eleven years of age or younger,
in violation of section 794.011(2), Florida Statutes (1985). The
-~acts upon which the charge was based were alleged to have
occurred between September 1, 1984 and June 24, 1985. The
alleged victim was Glendening’s three-and-one-half-year-old
daughter.
Glendening was found guilty of the charged offense and
received a life sentence with a mandatory minimum twenty-five
years of incarceration. On appeal, the Second District Court of
Appeal affirmed Glendening’s conviction and sentence, rejecting
the arguments that the trial court erred in admitting out-of-court
statements made by the young victim under section 90.803(23),
Florida Statutes (1985).
Glendening now seeks review of the decision of the Second
District Court of Appeal. As the district court below noted, the
major thrust of Glendening’s argument involves the constitu-
tionality of section 90.803(23), its applicability to his case, and
compliance with the section’s requirements. Section 90.803(23)
is a hearsay exception which permits, under certain circumstances,
the introduction of out-of-court statements made by a child victim
of sexual abuse describing any act of child abuse, sexual abuse,
or any other offense involving an unlawful sexual act, contact,
intrusion, or penetration performed in the presence of, with, by,
or on the declarant child, if the child has a physical, mental, emo-
tional, or developmental age of eleven or less.
A- ] 5
[1] We first reject Glendening’s contention that section
90.803(23) is unconstitutional on its face. Glendening relies upon
the arguments set forth in the brief of Petitioner Perez filed in
the case of Perez v. State, Case No. 70,027 in regard to this issue.
We rejected these arguments in our decision in Perez v. State,
536 So.2d 206 (Fla.1988), released simultaneously with the pre-
sent decision.
We next address Glendening’s argument that because he was
charged with an offense occurring before the effective date of
section 90.803(23), application of the new hearsay exception to
his case violated the prohibition against ex post facto laws. The
United States Supreme Court has stated that there has been no
attempt to precisely delimit the scope of the phrase ‘‘ex post facto
law.’’ One statement of the characteristics of an ex post facto
law set forth by the Supreme Court, however, provided that
‘* “any statute which punishes as a crime an act previously com-
mitted, which was innocent when done; which makes more
burdensome the punishment for a crime, after its commission,
or which deprives one charged with crime of any defense available
according to law at the time when the act was committed, is pro-
hibited as ex post facto.’ ’’ Dobbert v. Florida, 432 U.S. 282,
292, 97 S.Ct. 2290, 2297, 53 L.Ed.2d 344 (1977) (quoting Beazel/
v. Ohio, 269 U.S. 167, 169-70, 46 S.Ct. 68, 69, 70 L.Ed. 216
(1925)). Another formulation, reiterated recently in Miller v.
Florida, also provides that ‘‘ ‘[e]very law that alters the legal rules
of evidence, and receives less, or different testimony, than the
law required at the time of the commission of the offense, in order
to convict the offender’ ’’ violates the prohibition against ex post
facto laws. 482 U.S. 423, 107 S.Ct. 2446, 2450, 96 L.Ed.2d 351
(1987) (quoting Calder v. Bull, 3 U.S. (Dall.) 386, 1 L.Ed. 648
(1798)). No ex post facto violation occurs if a change is merely
procedural and does not alter ‘‘substantial personal rights.”’
Miller, 107 S.Ct. at 2451; Dobbert, 432 U.S. at 293, 97 S.Ct.
at 2298.
Relying primarily upon that portion of the formulation of
the scope of ex post facto laws from Miller which is set forth
above, Glendening contends that section 90.803(23) alters the legal
rules of evidence and receives less or different testimony than
the law required at the time of the commission of the offense.
He further contends that because he was disadvantaged by the
retrospective application of the exception, admission of the out-
of-court statements of the child victim pursuant to section
90.803(23) in his case violated the prohibition against ex post factc
laws. We disagree.
A-16
The proscription against laws which affect the legal rules
of evidence and receive less, or different, testimony in order to
convict the offender has been construed as prohibiting those laws
which ‘‘ ‘change the ingredients of the offence or the ultimate
facts necessary to establish guilt.’ ’’ Miller, 107 S.Ct. at 2453
(quoting Hopt v. Utah, 110 U.S. 574, 590, 4S.Ct. 202, 210, 28
L.Ed. 262 (1884)). Changes in the admission of evidence have
been held to be procedural. Two examples of this, noted in
Dobbert, are found in Hopt and Thompson v. Missouri, 171 U.S.
380, 18 S.Ct. 922, 43 L.Ed. 204 (1898). In Hopt, the law in effect
on the date of the alleged homicide provided that a convicted
felon could not be called as a witness. Prior to trial of the case,
the law was changed and a convicted felon, called to the stand
to testify, implicated Hopt in the crime. The Supreme Court
rejected the argument that the law was ex post facto, stating that
‘‘falny statutory alteration of the legal rules of evidence which
_ only removes existing restrictions upon the competency of
certain classes of persons as witnesses, relate to modes of pro-
cedure only’”’ and ‘‘are not ex post facto in their application to
prosecution for crimes committed prior to their passage.’’ 110
U.S. at 589, 590, 4S.Ct. at 209-10. In Thompson, the Missouri
Supreme Court reversed Thompson’s conviction of murder
because of the inadmissibility of certain evidence. Letters writ-
ten by the defendant to his wife were submitted for handwriting
comparison, which was prohibited by the rules of evidence. Prior
to the second trial, the law was changed to make this objectionable
evidence admissible and Thompson was again convicted. The
United States Supreme Court rejected the argument that this
change was violative of the ex post facto clause and held that
the change was procedural. See Dobbert, 432 U.S. at 293, 97 S.Ct.
at 2298.
{2} The same reasoning which resulted in the Supreme
Court’s determination that the statutes in Hopt and Thompson
were procedural leads to the conclusion that section 90.803(23),
Florida Statutes, is also procedural and that the statute does not
affect ‘‘substantial personal rights.’’ As in Hopt, ‘‘[t]he crime
for which the present defendant was indicted, the punishment
prescribed therefor, and the quantity or the degree of proof
necessary to establish his guilt, all remained unaffected by’’ the
enactment of section 90.803(23). 110 U.S. at 589-90, 4 S.Ct. at
209-10. As in Thompson, section 90.803(23) ‘‘left unimpaired
the right of the jury to determine the sufficiency or effect of the
evidence declared to be admissible, and did not disturb the funda-
mental rule thal the state ... must overcome the presumption
A-17
of his innocence, and establish his guilt beyond a reasonable
doubt.”’ 17i U.S. at 387, 18 S.Ct. at 924. Accordingly, we con-
clude that the district court below correctly held that application
of section 90.803(23) in the present case does not violate the pro-
hibition against ex post facto laws.
The third issue addressed concerns compliance with the
requirements of section 90.803(23) in the trial court below. Prior
to trial, the state served a motion to videotape the child’s
testimony for introduction at trial pursuant to section 92.53,
Florida Statutes (1985). Section 92.53 provides that upon
a finding that there is a substantial likelihood that a victim
or witness [in a sexual abuse or child abuse case] who is under
the age of 16 would suffer at least moderate emotional or
mental harm if he were required to testify in open court or
that such victim or witness is otherwise unavailable as de-
fined in s. 90.804(1), the trial court may order the video-
taping of the testimony of the victim or witness in a sexual
abuse case or child abuse case, whether civil or criminal in
nature, which videotaped testimony is to be utilized at trial
in lieu of trial testimony in open court.
The trial court heard evidence on the motion and found that there
was a substantial likelihood that the child would suffer at least
moderate emotional or mental harm if she were required to testify
in open court.-The trial court accordingly entered an order per-
mitting the videotaping and required Glendening to view the
testimony outside the child’s presence.
At the videotaping session, the trial court first conducted
a voir dire examination of the child to determine her competency
to testify. The trial court concluded that the child was competent
to testify because she showed an above average inteiligence for
a three-and-one-half-year-old child and was aware of her sur-
roundings, attributing her inability to explain the difference be-
tween the truth and a lie to the inariful questioning by the court
and the state attorney. Thereafter, when the child was interrogated
concerning the matters involved in the Case, she did not implicate
her father in any misconduct.
Glendening made a pretrial motion to exclude all hearsay
statements made by the child. In response, the state filed a notice
of the various hearsay statements it intended to introduce. The
trial cgurt ruled that the state’s response did not constitute ade-
A-18
quate compliance with the notice requirements of section
90.803(23)(b) and permitted the state to file a more detailed
response. Thereafter, but more than ten days before trial, the
state filed a detailed recitation of the hearsay statements to be
offered at trial. At a subsequent hearing on the motion, the trial
court observed that it could not rule upon the admissibility of
the hearsay statements without hearing the witnesses’ testimony
concerning the circumstances under which the child’s statements
were made.
At trial, the witnesses listed on the state’s notice testified
concerning the out-of-court statements made by the child and
the circumstances under which the statements were made. The
videotape of the child’s testimony was shown to the jury once
during the state’s case-in-chief and then again by the defense.
Glendening raises several arguments in regard to the com-
pliance with section 90.803(23) by the trial court. Glendening con-
tends that the requirements of section 90.803(23)(a)(2) were not
met. This subsection provides that in order to admit the hearsay
statements of a child under this exception, the child must either
(a) testify, or (b) be unavailable. If the child is unavailable, the
statute also requires other corroborative evidence of the abuse
or offense. Glendening argues the district court below erred in
holding that introduction of the videotaped testimony of the child,
taken pursuant to section 92.53, was sufficient to satisfy the
requirement that the child testify in order to admit the child’s
hearsay statements. We reject this argument.
[3] Section 92.53(1) provides that when the requisites of
the statute are met, the trial court may order ‘‘the videotaping
of the testimony of the victim or witness ... which videotaped
testimony is to be utilized at trial in lieu of trial testimony in open
court.’’ (Emphasis added.) The statute clearly provides that
videotaped testimony is the equivalent of testimony in open court.
Moreover, the legislative intent in enacting section 92.53 was to
spare children, to the extent constitutionally permissible, the
trauma of testifying in open court.’ The legislative intent would
be defeated if section 92.53 did not have the effect of allowing
the videotaped testimony of children meeting the requirements
1. See ch. 85-53, Laws of Fla.: ‘‘WHEREAS, it is necessary that safeguards
be instituted for the children of the State of Florida who are victimized to
assure that their right to be free from emotional harm and trauma occa-
sioned by judicial proceedings is protected by the court....”’
A-19
of the statute where the laws of the state refer to ‘‘testimony”’
or ‘‘testifying.’’
[4] Application of section 92.53 to permit videotaping the
child’s testimony instead of requiring the child to testify in open
court for purposes of admitting the child’s out-of-court statements
pursuant to section 90.803(23) does not violate the federal or
Florida constitutional guarantee of the right of confrontation.”
The defendant is permitted full cross-examination of the child,
which is the functional purpose of the confrontation clause. Ken-
tucky v. Stincer, 482 U.S. 730, 107 S.Ct. 2658, 2664, 96 L.Ed.2d
631 (1987). The jury is still able to see the witness as the testimony
is given and ‘‘judge by his demeanor upon the stand and the man-
ner in which he gives his testimony whether he is worthy of
belief.’’ Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct.
337, 339, 39 L.Ed. 409 (1895). The fact that Glendening was
required to view the child’s testimony from behind a two-way
mirror as it was videotaped does not change the conclusion.? In
the present case, Glendening was accompanied by counsel behind
the two-way mirror and was able to communicate with counsel
questioning the child if the need arose. His opportunity to engage
in full and effective cross-examination was not interfered with
by his exclusion. See, e.g., Stincer, 107 S.Ct. at 2663-64 n. 9.
Furthermore, although the confrontation clause does reflect
a preference for face-to-face confrontation at trial, Ohio v.
Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597
(1980), the Supreme Court has recognized that
competing interests, if ‘‘closely examined,’’ Chambers y.
Mississippi, 410 U.S., [284,] at 295, 93 S.Ct., [1038,] at 1045,
[35 L.Ed.2d 297] may warrant dispensing with confronta-
tion at trial. See Mattox v. United States, 156 U.S., [237,]
at 243, 15 S.Ct. [337,] at 340 [, 39 L.Ed. 409] (‘‘general rules
of law of this kind, however beneficent in their operation
and valuable to the accused, must occasionally give way to
considerations of public policy and the necessities of the
2. U.S. Const. amend. VI; art. 1, § 16, Fla. Const.
3. Section 92.53(4) provides that [t]he court may require the defendant to view
the testimony from outside the presence of the child by means of a two-way
mirror or another similar method that will ensure that the defendant can
observe and hear the testimony of the child in person, but that the child
cannot hear or see the defendant. The defendant and the attorney for the
defendant may communicate by any appropriate private method.
A-20
case’’). Significantly, every jurisdiction has a strong interest
in effective law enforcement, and in the development and
precise formulation of the rules of evidence applicable in
criminal proceedings.
Id. at 64, 100 S.Ct. at 2538. We agree with the First District Court
of Appeal that ‘‘[wJeighing the competing interests in the balance
... the defendant’s right to confront his accusers must give way
to the State’s interest in sparing child victims of sexual crimes
the further trauma of in-court testimony.’’ Chambers v. State,
504 So.2d 476, 477-78 (Fla. Ist DCA 1987). Our conclusion is
not altered by the recent United States Supreme Court decision
in Coy v. Iowa, ____ U.S. , 108 S.Ct. 2798, 101 L.Ed.2d
857 (1988), which was issued subsequent to oral argument in the
present case. Coy was charged with sexually assaulting two
thirteen-year-old girls while they were camping out in the backyard
of the house next door to him. Neither of the girls was able to
describe their assailant’s face. At trial, the girls were permitted
to testify behind a large screen which enabled Coy to dimly
perceive the witnesses but because of which the witnesses were
completely unable to see Coy. See lowa Code § 910A.14 (1987).
The United States Supreme Court found that Coy’s constitutional
right to face-to-face confrontation was violated and reversed the
judgment of the lowa Supreme Court which had affirmed his
convictions and sentences.
There are two reasons why the decision in Coy does not alter
our conclusion. First, the present case is distinguishable from the
scenario in Coy. In Coy, the Supreme Court recognized that ‘‘[i]t
is true that we have in the past indicated that rights conferred
by the Confrontation Clause are not absolute, and may give way
to other important interests.’’ 108 S.Ct. at 2802. The majority
opinion notes that any such exception to the right of face-to-face
confrontation will only be allowed when necessary to further an
important public policy. The majority then concludes that
whatever exceptions may exist, the exception set forth in the lowa
statute could not be sustained by any conceivable exception.
lowa’s argument that a necessity for an exception was establish-
ed by the statute, which creates a legislatively imposed presump-
tion of trauma, was rejected because the exception was not a firm-
ly rooted exception and ‘‘there have been no individualized find-
ings that these particular witnesses needed special protection.”’
Id. at 2803.
In contrast to the statute at issue in Coy, section 92.53
A-21
requires an individual determination for each child witness that
the use of videotaped testimony is necessary to prevent the child
from suffering emotional or mental harm. In the present case,
the trial court conducted a hearing on the issue of whether the
child victim would suffer at least moderate emotional or mental
harm if required to testify in open court. The child’s mother and
the child’s guardian ad litem testified that the child had express-
ed a fear of seeing her father and described behavior of the child
on various occasions to support their conclusions. In addition,
Dr. Meyer, a pediatrician who had attempted to examine the
child, and Ms. Shapiro, a social worker who works with sexual-
ly abused children, testified that based upon their experience with
this particular child testifying in open court would be a terrify-
ing experience, particularly if she were to be cross-examined with
her father in the room. Both Dr. Meyer and Ms. Shapiro felt
that examining the child by way of videotaping where she was
not able to see her father would minimize her emotional trauma.
Based upon this testimony, the trial judge concluded that there
was a substantial likelihood that the victim would suffer at least
moderate emotional or mental harm if required to testify in open
court in the presence of the defendant. Thus, contrary to the facts
in Coy, the present case involved ‘‘a case-specific finding of
necessity.’’ Coy, 108 S.Ct. at 2805 (O’Connor, J., concurring).
Moreover, as noted previously, the protection of child witnesses
from the trauma of testifying in open court in the presence of
the defendant, when it is demonstrated that there is a substantial
likelihood that such trauma would result, is a public policy of
such importance as to justify a trial procedure that calls for
something other than face-to-face confrontation. See id.
[5] Second, Justice Scalia recognized in the majority
opinion in Coy that the United States Supreme Court has
‘*recognized that other types of violations of the Confrontation
Clause are subject to that harmless error analysis ... and [has]
see[n] no reason why denial of face-to-face confrontation should
not be treated the same.’’* 108 S.Ct. at 2803. We conclude that
if the denial of face-to-face confrontation in the present case had
4. Justice Scalia went on to note that ‘‘[a]n assessment of harmlessness can-
not include consideration of whether the witness’s testimony would have
been unchanged, or the jury’s assessment unaltered, had there been con-
frontation; such an inquiry would obviously involve pure speculation, and
harmlessness must therefore be determined on the basis of the remaining
evidence.’’ Coy v. lowa, ____~‘US. , 108 S.Ct. 2798, 2803, 101
L.Ed.2d 857 (1988).
A-22
been error, any error would have been harmless. When question-
ed, the child not only did not implicate the defendant in any
wrongdoing, but specifically stated that he had not hurt her.
Following this testimony by the child during examination by the
state, defense counsel declined to conduct cross-examination of
the child. Moreover, this exculpatory tape was presented to the
jury by the defense during its case. Because the videotaped
testimony was totally exculpatory, the admission of the testimony
unquestionably did not contribute to the conviction and was
harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d
1129, 1138 (Fla.1986).
Accordingly, we conclude the district court below correctly
held that introduction of the child’s videotaped testimony, taken
pursuant to section 92.53, satisfied the requirement of section
90.803(23)(a)(2) that the child either testify or be unavailable.
Accord State v. Sheppard, 197 N.J.Super. 411, 484 A.2d 1330
(Law Div.1984) (Child victim would be permitted to testify
through use of video equipment in prosecution of child’s step-
father for sexual assault, despite resulting lack of eye contact be-
tween child witness and defendant where defendant, judge, jury,
and spectators would see and hear the child clearly, adequate
opportunity for cross-examination would be provided, and in view
of trial court’s finding of harm to the child if she was required
to testify in open court.).
[6] Even if we had agreed with Glendening’s argument that
if the child testifies via videotape rather than in open court, the
child’s out-of-court statements could not be admitted without
first imposing the additional safeguards under the Ohio v.
Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980),
unavailable declarant scenario, it would be of no consequence
in our review of the present case. The Roberts unavailable
declarant scenario requires that if the declarant is unavailable,
the hearsay must be marked with particularized guarantees of
trustworthiness in order to be admissible. Jd. at 65, 100 S.Ct.
at 2538. Section 90.803(23) incorporates this requirement by
requiring that there be other corroborative evidence of the abuse
or offense if the child declarant is unavailable. We held in Perez
that this requirement satisfied the Roberts standard for admis-
sion of hearsay statements by unavailable declarants. Perez v.
State, 536 So.2d 206 (Fla.1988). In the present case, the abuse
was corroborated by medical testimony and by two witnesses who
A-23
testified that Glendening admitted to them that he committed
the offenses.®
[7] We also reject Glendening’s argument that the trial
court erred in determining that the child was competent to testify.
We have been referred by Glendening to portions of the transcipt
of the competency hearing which focus on the child’s weakness
as a witness. Other portions, however, tend to support the child’s
competency to testify. As this Court has previously held, it is
‘“‘within the sound discretion of the trial judge to decide whether
an infant of tender years has sufficient mental capacity and sense
of moral obligation to be competent as a witness, and his ruling
will not be disturbed unless a manifest abuse of discretion is
shown.” Rutledge v. State, 374 So.2d 975, 979 (Fla.1979), cert.
denied, 446 U.S. 913, 100 S.Ct. 1844, 64 L.Ed.2d 267 (1980).
Our examination of the record reveals no abuse of discretion on
the part of the trial judge in permitting the child’s testimony.®
The final issue involves the alleged improper admission of
expert witness testimony. Rebecca Winkel, a coordinator for the
child protection team, was recognized by the trial court as an
expert in the area of interviewing children regarding the subject
5. Glendening’s argument that permitting videotaped testimony to be the
equivalent of in-court testimony will make it easier for the state to introduce
hearsay and decrease the likelihood that children will be produced for in-
court testimony is without merit. The argument ignores the fact that by
meeting the lower standard of demonstrating that testimony in open court
will cause moderate emotional harm so that the child’s testimony may be
videotaped, the state is subjecting the child to cross-examination by the
defense. In contrast, if the state meets the heavier burden of establishing
that testimony will cause the child to suffer severe emotional harm, the
defense may have no opportunity to cross-examine the child. In addition,
the argument assumes that the trial court will always find that the child will
suffer emotional harm if required to testify in open court. We decline to
engage in such speculation.
6. Furthermore, Glendening’s argument that the child must be testimonially
competent in order for the child’s out-of-court statements to be admitted
has been rejected by this Court in Perez v. State, 536 So.2d 206 (Fla. 1988).
In Perez, we held that the requirement of section 90.803(23) ‘‘that the trial
court find that the time, content, and circumstances of the statement pro-
vide sufficient safeguards of reliability furnishes a sufficient guarantee of
trustworthiness of the hearsay statement”’ to satisfy the requirements of Ohio
v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). At 211.
In the present case, when an objection to the admission of a hearsay state-
ment was made, the trial court properly made findings, outside the presence
of the jury, that the out-of-court statements were reliable.
eo i ad. ar ee Orme. : ee
A-24
of child abuse. During direct examination, the prosecutor asked:
‘‘Mrs. Winkel, based upon your interview with Jennifer did you
reach any opinion within a reasonable degree of professional cer-
tainty as to whether or not she had been sexually abused?’’
Defense counsel objected to the question on the basis that the
question called for an opinion on the ultimate issue in the case
and on the basis that the witness was not competent to make the
conclusion. The objection to the question was overruled, with
the understanding that the question was limited to the specific
act alleged, anal penetration, and limited to the doll interview.
The question was rephrased as follows: ‘‘Based upon your inter-
view with Jennifer, her marking the charts, have you reached any
opinion within a reasonable degree of professional certainty as
to whether or not Jennifer Glendening’s anus was penetrated by
a penis?’”’ In response to the question, Mrs. Winkel stated that
she had. When questioned what that opinion was, Mrs. Winkel
stated that it was her opinion ‘‘that Jennifer has been sexually
abused by her father.’’ Glendening contends he was prejudiced
by the improper admission of this expert opinion.
The trial court correctly overruled the defense objection to
the question. Rebecca Winkel was recognized, without objection
by the defense, as an expert in conducting interviews with children
regarding suspected sexual abuse. A trial court has broad discre-
tion in determining the range of subjects on which an expert
witness may be allowed to testify and unless there is a clear show-
ing of error, its decision will not be disturbed on appeal. Johnson
v. State, 393 So.2d 1069, 1072 (Fla.1980), cert. denied, 454 U.S.
882, 102 S.Ct. 364, 70 L.Ed.2d 191 (1981). The trial court did
not abuse its discretion in determining that an opinion as to
whether the child was sexually abused was within the province
of the expert witness.
[8] A qualified expert may express an opinion as to whether
a child has been the victim of sexual abuse. Sections 90.702 and
90.703, Florida Statutes (1985), deal with admissibility of expert
testimony and opinions.
90.702 Testimony by experts.—If scientific, technical, or
other specialized knowledge will assist the trier of fact in
understanding the evidence or in determining a fact in issue,
a witness qualified as an expert by knowledge, skill, ex-
perience, training, or education may testify about it in the
form of an opinion; however, the opinion is admissible only
if it can be applied to evidence at trial.
EEE
’
A-25
90.703 Opinion on ultimate issue.—Testimony in the form
of an opinion or inference otherwise admissible is not ob-
jectionable because it includes an ultimate issue to be decided
by the trier of fact.
These two sections are subject, however, to the limitations of sec-
tion 90.403, Florida Statutes (1985), which provides in relevant
part:
Relevant evidence is inadmissible if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of issues, misleading the jury, or needless presen-
tation of cumulative evidence.
Accordingly, the evidence code sets forth four requirements to
be met in order to admit an expert opinion: (1) the opinion
evidence must help the trier of fact; (2) the witness must be
qualified as an expert; (3) the opinion must be capable of being
applied to evidence at trial; and (4) the probative value of the
opinion must not be substantially outweighed by the danger of
unfair prejudice. See Kruse v. State, 483 So.2d 1383 (Fla. 4th
DCA 1986).
Testimony in the form of an opinion by Mrs. Winkel would
be helpful to the jury in view of the age of the victim. The child’s
age made it likely that her inexperience in sexual matters would
make it difficult for her to describe what happened. The opinion
of a witness such as Mrs. Winkel, recognized as an expert in inter-
viewing suspected young victims of sexual abuse, provided the
jury more information from which to decide whether the child
had actually been a victim of sexual abuse. Mrs. Winkel’s opinion
testimony could be applied by the jury to the medical evidence
to connect the findings of the medical examination to the cause.
The probative value of the opinion that the child was sexually
abused was not substantially outweighed by any unfair prejudice.
The jury was able to hear a tape recording of the interview which
formed the basis of Mrs. Winkei’s opinion and heard defense
arguments challenging the interview technique. The jury was
properly left free to determine whether to accept the opinion and
if so, what weight it should be given. See Kruse. See also Blood-
worth v. State, 504 So.2d 495, 497 (Fla. Ist DCA 1987) (trial
court did not err in allowing expert to express opinion that the
victim had engaged in recent nonconsensual intercourse).
[9, 10] Weagree with Glendening that it was improper for
A-26
the expert witness to testify that it was her opinion that the child’s
father was the person who committed the sexual offense. An
opinion as to the guilt or innocence of an accused is not admis-
sible. See Lambrix v. State, 494 So.2d 1143 (Fla.1986); Spradley
v. State, 442 So.2d 1039 (Fla..2d DCA 1983). Although section
90.703 would appear to permit such an opinion, such testimony
is precluded on the basis of section 90.403. Any probative value
such an opinion may possess is clearly outweighed by the danger
of unfair prejudice. This error does not, however, require rever-
sal. Except in cases of fundamental error, an issue will not be
considered for the first time on appeal. Steinhorst v. State, 412
So.2d 332 (Fla.1982). Defense counsel neither objected to the
answer nor moved to strike it and the error is not of a fundamental
nature. Accordingly, the issue is not properly preserved for appeal
because the question was proper and the improper reply was not
contemplated by the question and was not the subject of a mo-
tion to strike.
[11] Glendening also argues that Dr. Kent, a psychologist,
was improperly allowed to vouch for the credibility of a witness
by stating that in his expert opinion the child’s allegation, as con-
veyed by Mrs. Winkel, was based upon independent recall rather
than improper prompting. Defense counsel’s objection, however,
was on the basis that the question was irrelevant, not that the
question called for improper vouching for the credibility of the
hearsay declarant. In order for an argument to be cognizable on
appeal, it must be the specific contention asserted as the legal
ground for the objection below. Steinhorst. Accordingly, this issue
is also not properly preserved for appeal.
In summary, we conclude the district court below correctly
held that section 90.803(23) is constitutional and was properly
applied in the present case. Accordingly, we approve the deci-
sion of the district court below.
——
It is so ordered.
McDONALD, SHAW, BARKETT and KOGAN, JJ.,
concur.
OVERTON, J., concurs in result only.
GRIMES, J., did not participate in this case.
—
A-27
Fla. Stat. §
92.53 Sexual abuse or child abuse case; videotaping of
testimony of victim or witness under age 16.—
(1) On motion and hearing in camera and a finding that
there is a substantial likelihood that a victim or witness who is
under the age of 16 would suffer at least moderate emotional
or mental harm if he were required to testify in open court or
that such victim or witness is otherwise unavailable as defined
in s. 90.804(1), the trial court may order the videotaping of the
testimony of the victim or witness in a sexual abuse case or child
abuse case, whether civil or criminal in nature, which videotaped
testimony is to be utilized at trial in lieu of trial testimony in open
court.
(2) The motion may be filed by:
(a) The victim or witness, or the victim’s or witness’ at-
torney, parent, legal guardian, or guardian ad litem:
(b) A trial judge on his own motion.
(c) Any party in a civil proceeding; or
(d) The prosecuting attorney or the defendant, or the defen-
dant’s counsel.
(3) The judge shall preside, or shall appoint a special master
to preside, at the videotaping unless the following conditions are
met:
(a) The child is represented by a guardian ad litem or
counsel;
(b) The representative of the victim or witness and the
counsel for each party stipulate that the requirement for the
presence of the judge or special master may be waived; and
(c) The court finds at a hearing on the motion that the
presence of a judge or special master is not necessary to protect
the victim or witness.
(4) The defendant and the defendant’s counsel shall be pre-
—
rn See Rn were dome of andre heat eae eer ee ee . ee
A-28
sent at the videotaping, unless the defendant has waived this right.
The court may require the defendant to view the testimony from
outside the presence of the child by means of a two-way mirror
or another similar method that will ensure that the defendant can
observe and hear the testimony of the child in person, but that
the child cannot hear or see the defendant. The defendant and
the attorney for the defendant may communicate by any ap-
propriate private method.
(5) Any party, or the court on its own motion, may request
the aid of an interpreter, as provided in s. 90.606, to aid the parties
in formulating methods of questioning the child and in inter-
preting the answers of the child throughout proceedings conducted
under this section.
(6) The motion referred to in subsection (1) may be made
at any time with reasonable notice to each party to the cause,
and videotaping of testimony may be made any time after the
court grants the motion. The videotaped testimony shall be ad-
missible as evidence in the trial of the cause; however, such
testimony shall not be admissible in any trial or proceeding in
which such witness testifies by use of closed circuit television pur-
suant to s. 92.54.
(7) The court shall make specific findings of fact, on the
record, as to the basis for its ruling under this section.
Fla. Stat. §
90.803 Hearsay exceptions; availability of declarant im-
material.—The provision of s. 90.802 to the contrary notwith-
standing, the following are not inadmissible as evidence, even
though the declarant is available as a witness:
* * *
(23) HEARSAY EXCEPTION; STATEMENT OF CHILD
VICTIM OF SEXUAL ABUSE OR SEXUAL OFFENSE
AGAINST A CHILD.—-
(a) Unless the source of information or the method or cir-
cumstances by which the statement is reported indicates a lack
of trustworthiness, an out-of-court statement made by a child
victim with a physical, mental, emotional, or developmental age
of 11 or less describing any act of child abuse, sexual abuse, or
any other offense involving an unlawful sexual act, contact, in-
A-29
trusion, Or penetration performed in the presence of, with, by,
or on the declarant child, not otherwise admissible, is admissible
in evidence in any civil or criminal proceeding if:
1. The court finds in a hearing conducted outside the
presence of the jury that the time, content, and circumstances
of the statement provide sufficient safeguards of reliability. In
making its determination, the court may consider the mental and
physical age and maturity of the child, the nature and duration
of the abuse or offense, the relationship of the child to the of-
fender, the reliability of the assertion, the reliability of the child
victim, and any other factor deemed appropriate; and
2. The child either:
a. Testifies; or
b. Is unavailable as a witness, provided that there is other
corroborative evidence of the abuse or offense. Unavailability
shall include a finding by the court that the child’s participation
in the trial or proceeding wouid result in a substantial likelihood
of severe emotional or mental harm, in addition to findings pur-
suant to s. 90.804(1).
(b) Inacriminal action, the defendant shall be notified no
later than 10 days before trial that a statement which qualifies
as a hearsay exception pursuant to this subsection will be offered
as evidence at trial. The notice shall include a written statement
of the content of the child’s statement, the time at which the state-
ment was made, the circumstances surrounding the statement
which indicate its reliability, and such other particulars as
necessary to provide full disclosure of the statement.
(c) The court shall make specific findings of fact, on the
record, as to the basis for its ruling under this subsection.
iH
|
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’
,
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A-30
EXCERPTS FROM CHILD COMPETENCY HEARING
THE COURT: Do you know what to tell the truth means?
CHILD: Uh uh. (Negative response.)
CHILD: Uh uh. (Negative response.)
THE COURT: Okay. Do you know what a lie is?
CHILD: Making people.
THE COURT: What?
CHILD: Make people.
THE COURT: Make people? If mommy told you not to
eat a cookie and you ate one would that be good or bad?
CHILD: Good.
THE COURT: Huh?
CHILD: Good.
THE COURT: That would be good?
CHILD: (Nods head affirmatively.)
THE COURT: Does mommy ever talk to you about tell-
ing the truth?
CHILD: (Shakes head negatively.)
THE COURT: No? Does mommy ever talk to you about
telling a lie?
CHILD: (Shakes head negatively.)
THE COURT: Who does mommy talk to you about?
CHILD: Nobody.
THE COURT: Do you and mommy talk about a lot of
things?
ow
A-31
CHILD: (Shakes head negatively.)
R. 761-62.
THE COURT: What does being good mean? Don’t know?
CHILD: Uh uh. (Negative response.)
THE COURT: Have you ever been bad?
CHILD: Uh uh. (Negative response.)
THE COURT: No?
R. 764.
THE COURT: Jenny, if your mommy said, Jenny, I don’t
want you to chew any gum and you chewed gum, would that
be bad or good?
DEFENSE COUNSEL: Objection Your Honor, asked and
answered.
CHILD: Good.
R. 764.
PROSECUTOR: Yeah. Okay. And see that pail over there
in the sandbox?
CHILD: Can I go over there?
PROSECUTOR: Not right now. In a few minutes. But can
you tell me the coior of the pail?
CHILD: That picture?
PROSECUTOR: No, see the pail in there?
A-32
DEFENSE COUNSEL: Objection, Your Honor, leading.
CHILD: Red and white.
THE COURT: Overruled.
PROSECUTOR: Okay. Now, Jenny, if I told you that the
pail was black, would I be, would I be telling the truth or telling
a lie?
DEFENSE COUNSEL: Objection as to
CHILD: Truth.
A-33
COMPARISON AND REVIEW OF STATE VIDEOTAPING
I. AGE
A.
G.
STATUTES
APPLICABILITY
Seventeen or younger
R.I. Gen. Laws § 11-37-13.2 (1986)
Under seventeen
Ark. Stat. Ann. § 43-2036 (Supp. 1985); Mo. Stat.
Ann. § 491.678 (Vernon Supp. 1989)
Sixteen or younger
Alaska Stat. § 12-45-047 (1984)
Under sixteen
Ala. Code Ann. § 15-25-2(A) (Michie Supp. 1988); Fla.
Stat. § 92.53(1) (1987); Miss. Code Ann. § 13-1-407(1)
(Harrison/Law. Co-op. Supp. 1988); N.H. Stat. Ann.
§ 30-9-17 (1986); Wis. Stat. Ann. § 967.04(7)(a)2 (West
Supp. 1987) (prior to 16th birthday and interests of
justice warrant)
Fifteen or less
Cal. Penal Code Ann. § 1346(a) (West Supp. 1989);
S.D. Code Ann. § 23A-12-9 (Supp. 1987)
Under fifteen
Ariz. Rev. Stat. Ann. § 13-4253B (West Supp. 1988);
Colo. Rev. Stat. Ann. § 18-3-413(1) (Bradford 1986);
Mass. Ann. Laws ch. 278, § 16D(a) (Law. Co-op.
Supp. 1988); Mich. Stat. Ann. § 27A.2163(1)(b)
(Callaghan Supp. 1988)
Under fourteen
lowa Code Ann. § 910A.14 (Supp. 1985); La Stat. Ann.
II.
A-34
§ 440.2A(1) (West Supp. 1989); Nev. Rev. Stat. §
174.227 (1986); 42 Pa. Cons. Stat. Ann. § 5982 (West
Supp. 1988)
H. Under thirteen
Kan. Stat. Ann. § 24-3434(a) (1986); N.H. Rev. Stat.
Ann. § 517:13-a (Supp. 1987); Tenn. Code Ann. §
24-7-116(a) (Michie Supp. 1988)
I. Twelve or younger
Conn. Gen. Stat. Ann. § 54-86g(a) (West Supp. 1988);
Ill. Stat. Ann. ch. 38, § 106A-2(a) (West Supp. 1988);
N.Y. Crim. Proc. Law § 190.32(1)(a) (West Supp.
1989); Okla. Stat. Ann. tit. 22, § 753A (West Supp.
1988); Tex. Crim. Proc. Code Ann. art. 38.071, § 1
(Vernon Supp. 1989); Vt. R. Evid. § 807 (Supp. 1986)
J. Under twelve
Del. Code Ann. tit. 11, § 3511(a) (Michie 1987); Ky.
Rev. Stat. Ann. § 421.350(4) (Baldwin 1986); Utah
Code Ann. § 77-35-15.5(3) (Supp. 1987); Wis. Stat.
Ann. § 967.04(7)(a)l (West Supp. 1987); Wyo. Stat.
§ 7-11-408 (1987)
K. Under eleven
Ohio Rev. Code Ann. § 2907.41(A)(1) (Page 1987)
L. Under ten
Ind. Code Ann. § 35-37-4-8(b) (West 1986); Minn. Stat.
Ann. § 595.02(4)(a) (West Supp. 1989)
M. ‘‘Very young’’
S.C. Code Ann. § 16-3-1530(G) (Law. Co-op. Supp.
1988)
PERSON
A. Child victim of sexual offense
|
A-35
Every statute applies to child victims of sexual offenses.
See, e.g., Ala. Code Ann. § 15-25-2(a) (Michie Supp.
1988)
B. Child victim of other crimes
Cal. Penal Code Ann. § 1346 (West Supp. 1989)
(assault); Conn. Gen. Stat. Ann. § 54.86g(a) (West
Supp. 1988) (assault); Fla. Stat. § 92.53(1) (1987) (child
abuse); Ind. Code Ann. § 35-37-4-6(a) (West 1986) (bat-
tery, kidnapping, confinement); Minn. Stat. Ann. §
595.02(4) (West Supp. 1989) (physical abuse, neglect);
Mo. Stat. Ann. § 491.680(1) (Vernon Supp. 1989) (any
criminal prosecution involving alleged child victim);
Ohio Rev. Code Ann. § 2907.41(A)(1) (Page 1987)
(endangering)
C. Any child witness
Ariz. Rev. Stat. Ann. § 13-4253 B (West Supp. 1988);
Del. Code Ann. tit. 11, § 3511(a) (Michie 1987); Fla.
Stat. § 92.53(1) (1987); Kan. Stat. Ann. § 24-3434
(1986); Mass. Ann. Laws ch. 278, § 16D(a) (Law. Co-
op. Supp. 1988); Miss. Code Ann. § 13-1-407(1) (Har-
rison/Law. Co-op. Supp. 1988); N.Y. Crim. Proc. Law
§ 190.32(1)(a) (West Supp. 1989); Okla. Stat. Ann. tit.
22, § 753A (West Supp. 1988); 42 Pa. Cons. Stat. Ann.
§ 5984(a) (West Supp. 1988); S.C. Code Ann. §
16-3-1530(G) (Law. Co-op. Supp. 1988); Wis. Stat.
Ann. § 967.04(7)(a) (West Supp. 1987)
D. Other witnesses
Cal. Penal Code Ann. § 1346(a) (West Supp. 1989) (any
victim developmentally disabled as result of retarda-
tion); Mich. Stat. Ann. § 27A.2163(1) (Callaghan Supp.
1988) (victim with developmental disability); S.C. Code
- Ann. § 16-3-1530(G) (Law. Co-op. Supp. 1988) (vic-
tims and witnesses who are elderly or handicapped or
have undefined ‘‘special needs’’)
Ill. PROCEEDINGS WHERE USED
A. Trial
B.
D.
A-36
Ala. Code Ann. § 15-25-2(a) (Michie Supp. 1988); Ariz.
Rev. Stat. § 13-4253C (West Supp. 1988); Ark. Stat.
Ann. § 43.2036 (Supp. 1985); Cal. Penal Code Ann.
§ 1346(d) (West Supp. 1989); Colo. Rev. Stat. Ann.
§ 18-3-413(4) (Bradford 1986); Conn. Gen. Stat. Ann.
§ 54-862(b) (West Supp. 1988); Del. Code Ann. tit. 11,
§ 3511(b) (Michie 1987); Fla. Stat. § 92.53(1) (1987);
Ill. Stat. Ann ch. 38, § 106A-2(b) (West Supp. 1988);
Ind. Code Ann. § 35-37-4-6 (West 1986); Kan. Stat.
Ann. § 22-3434(c) (Supp. 1985); Mass. Ann. Laws ch.
278, § 16D(b)(6) (Law. Co-op. Supp. 1988); Mich. Stat.
Ann. § 27A.2163(13) (Callaghan Supp. 1988); Minn.
Stat. Ann. § 595.02(4) (West Supp. 1989); Miss. Code
Ann. § 13-1-407(1) (Harrison/Law. Co-op. Supp.
1988); Mo. Stat. Ann. § 491.680(1) (Vernon Supp.
1989); Ohio Rev. Code Ann. §§ 2907.41(A), 2945.49(B)
(Page 1987); Okla. Stat. Ann. tit. 22, § 753D (West
Supp. 1988); 42 Pa. Cons. Stat. Ann. § 5984(a) (West
Supp. 1988); Tenn. Code Ann. § 24-7-116(d) (Michie
Supp. 1988); Tex. Crim. Proc. Code art. 38.071, § 4(a)
(Vernon Supp. 1989); Wis. Stat. Ann. § 967.04(7)(a)
(West Supp. 1987)
Preliminary hearing
Cal. Penal Code Ann. § 1346(a) (West Supp. 1989);
42 Pa. Cons. Stat. Ann. § 5984(a) (West Supp. 1988)
Juvenile Proceeding
Del Code Ann. tit. 11, § 3511(a) (Michie 1987); La.
Stat. Ann. § 440.2.A.(3) (West Supp. 1989)
Grand Jury
N.Y. Crim. Proc. Law § 190.32 (West Supp. 1989)
Civil Proceedings
Ariz. Rev. Stat. Ann. § 13-42501 (West Supp. 1988);
Miss. Code Ann. § i13-1-407(1) (Harrison/Law. Co-
op. Supp. 1988) (where occurrence or non-occurrence
of sexual abuse or child abuse is material fact); Tenn.
Code Ann. § 24-7-116(a) (Michie Supp. 1988) (any civil
proceeding in which child sexual abuse is issue)
A-37
PROCEDURE
MOVANT
A.
Prosecutor
Ala. Code Ann. § 15-25-2(a) (Michie Supp. 1988);
Alaska Stat. § 12.45.047 (1984); Ariz. Rev. Stat. Ann.
§ 13-4253B (West Supp. 1988); Ark. Stat. Ann. §
43-2036 (Supp. 1985); Cal. Penal Code Ann. § 1346(a)
(West Supp. 1989); Colo. Rev. Stat. Ann. § 18-3-413(1)
(Bradford 1986); Del. Code Ann. tit. 11, § 3511(a)
(Michie 1987); Ill. Stat. Ann. ch. 38, § 106A-2(a) (West
Supp. 1988); Mo. Stat. Ann. § 491.680(1) (Vernon
Supp. 1989); Nev. Rev. Stat. § 174.227 (1986); N.Y.
Crim. Proc. Law § 190.32(2) (West Supp. 1989); Ohio
Rev. Code Ann. § 2907.41(A)(1) (Page 1987); 42 Pa.
Cons. Stat. Ann. § 5984(a) (West Supp. 1988); Utah
Cede Ann. § 77-35-15.5 (Supp. 1987)
Any party
Conn. Gen. Stat. Ann. § 54-86g(a) (West Supp. 1988);
Fla. Stat. § 92.53(2)(c),(d) (1987); lowa Code Ann. §
910A.14 (Supp. 1985); Kan. Stat. Ann. § 22-3434
(1986); Ky. Rev. Stat. Ann. § 421.350(4) (Baldwin
1986); Minn. Stat. Ann. § 595.02(4) (West Supp. 1989);
N.H. Rev. Stat. Ann. § 517:13-a (Supp. 1987); Okla.
Stat. Ann. tit. 22, § 753C (West Supp. 1988); Tenn.
Code Ann. § 24-7-116(d) (Michie Supp. 1988); Tex.
Crim. Proc. Code Ann. art. 38.071, § 4(a) (Vernon
Supp. 1989); Vt. R. Evid. § 807 (Supp. 1986)
Court
Fla. Stat. § 92.53(2)(b) (1987); lowa Code Ann. §
910A.14 (Supp. 1985); Kan. Stat. Ann. § 22-3434
(1986); La. Stat. Ann. § 440.2.A.(1) (West Supp. 1989);
Mass. Ann. Laws ch. 278, § 16D(b)(1) (Law. Co-op.
Supp. 1988); Minn. Stat. Ann. § 595.02(4) (West Supp.
1989); Nev. Rev. Stat. § 174.227 (1986); N.H. Rev.
Stat. Ann. § 517:13-a (Supp. 1987); Tex. Crim. Proc.
Code Ann. art. 38.071, § 4(a) (Vernon Supp. 1989);
Vt. R. Evid. § 807 (Supp. 1986)
A-38
Representative of child
Fla. Stat. § 92.53(2)(a) (1987) (attorney, parent, legal
guardian, or guardian ad litem); La. Stat. Ann. §
440.2.A.(1) (West Supp. 1989) (parish welfare unit or
agency or Department of Health and Human Re-
sources); N.H. Rev. Stat. Ann. § 517:13-a (Supp. 1987)
(victim); 42 Pa. Cons. Stat. Ann. § 5984(a) (West Supp.
1988) (parent, guardian, or child’s advocate): Vt. R.
Evid. § 807 (Supp. 1986) (guardian ad litem). In
Mississippi the child’s representative may move to
require the defendant to view the testimony outside of
the child’s presence. Miss. Code Ann. § 13-1-407(4)
(Harrison/Law. Co-op. Supp. 1988)
NOTICE TO DEFENDANT
Ala. Code Ann. § 15-25-2(a) (Michie Supp. 1988);
Alaska Stat. § 12.45.047 (1984); Ark. Stat. Ann. §
43-2036 (Supp. 1985); Ariz. Rev. Stat. Ann. § 13-4251
(West Supp. 1988); Colo. Rev. Stat. Ann. § 18.3.413
(Bradford 1986); Fla. Stat. § 92.53(6) (1987); Ind. Code
Ann. § 35-35-4-6(c) (West 1986)
HEARING
Fla. Stat. § 92.53(1) (1987) (hearing in camera); Ind.
Code Ann. § 13-37-4-6(c)(1) (West 1986) (hearing out-
side presence of jury and attended by child); Mass.
Ann. Laws ch. 278, § 16D(b)(1) (Law. Co-op. Supp.
1988); Miss. Code Ann. § 13-1-407(1) (Harrison/Law.
Co-op. Supp. 1988) (hearing in camera); N.H. Rev.
Stat. § 174.227 (1986)
PERSONS PRESENT
ATTORNEYS
Ala. Code Ann. § 15-25-2(a) (Michie Supp. 1988); Ariz.
Rev. Stat. Ann. § 13-4253B (West Supp. 1988); Ark.
Stat. Ann. § 43-2036 (Supp. 1985); Conn. Gen. Stat.
Ann. § 54-86g(a) (West Supp. 1988); Del. Code Ann.
tit. 11, § 3511(a) (Michie 1987); Fla. Stat. § 92.53(4)
(1987); Ill. Stat. Ann. ch. 38, § 106A-2(a) (West Supp.
1988); Kan. Stat. Ann. § 22-3434(b)(1) (1986); Mass.
’
A-39
Ann. Laws ch. 278, § 16D(b)(3) (Law. Co-op. Supp.
1988); Minn. Stat. Ann. § 595.02(4)(b) (West Supp.
1989); Ohio Rev. Code Ann. § 2907.41(A)(1)(2) (Page
1987); Okla. Stat. Ann. tit. 22, § 753C (West Supp.
1988) 42 Pa. Cons. Stat. Ann. § 5984(a) (West Supp.
1988); Tenn. Code Ann. § 24-7-116(d) (Michie Supp.
1988); Tex. Crim. Proc. Code Ann. art. 38.071, § 4(a)
(Vernon Supp. 1989)
Il. JUDGE
Ark. Stat. Ann. § 43-2036 (Supp. 1985); Conn. Gen.
Stat. Ann. § 54-86g(a) (West Supp. 1988); Fla. Stat.
§ 92.53(3) (1987) (unless parties and child’s represen-
tative waive and judge finds not necessary to protect
child); Ill. Stat. Ann. ch. 38, § 106A-2(a) (West Supp.
1988); Mass. Ann. Laws ch. 278, § 16D(b)(3) (Law.
Co-op. Supp. 1988); Minn. Stat. Ann. § 595.02(4)(b)
(West Supp. 1989); Mo. Stat. Ann. § 491.680(3)
(Vernon Supp. 1989); Ohio Rev. Code Ann. §
2907.41(A)(1)(2) (Page 1987) (judge may preside from
outside room); 42 Pa. Cons. Stat. Ann. § 5984(a) (West
Supp. 1988); Tenn. Code Ann. § 24-7-116(d) (Michie
Supp. 1988); Tex. Crim. Proc. Code Ann. art. 38.071,
§ 4(a) (Vernon Supp. 1989); Wis. Stat. Ann. §
967.04(8)(a) (West Supp. 1987)
lil. DEFENDANT REQUIRED
Ala. Code Ann. § 15-25-2(a) (Michie Supp. 1988); III.
Stat. Ann. ch. 38, § 106A-2(a) (West Supp. 1988); Ohio
Rev. Code Ann. § 2907.41(A)(1) (Page 1987)
IV. DEFENDANT PROHIBITED
Ark. Stat. Ann. §§ 43-2035 to 2037 (Supp. 1985); Kan.
Stat. Ann. § 22-3434(b)(4) (1986); Ky. Rev. Stat. Ann.
§ 421.350(4) (Baldwin 1986); Mich. Stat. Ann. §
27A.2163(14) (Callaghan Supp. 1988); R.1. Gen. Laws
§ 11-37-13.2 (1986); Utah Code Ann. §
77-35-15.5(3),(4) (Supp. 1987)
V. DEFENDANT MAY BE EXCLUDED
Del. Code Ann. tit. 11, § 3511(a) (Michie 1987); Fla.
7h
Vil.
VIII.
A-40
Stat. § 92.53(4) (1987); Mass. Ann. Laws ch. 278, §
16D(b)(3) (Law. Co-op. Supp. 1988); Minn. Stat. Ann.
§ 595.02(4)(c) (West Supp. 1989); Miss. Code Ann. §
13-1-407(4) (Harrison/Law. Co-op. Supp. 1988); Mo.
Stat. Ann. § 491.685(1} (Vernon Supp. 1989); Vt. R.
Evid. § 807 (Supp. 1986); Wyo. Stat. § 7-11-408 (1987)
DEFENDANT ON TELEVISION MONITOR
Minn. Stat. Ann. § 595.02(4)(c)(2) (West Supp. 1989);
Ohio Rev. Code Ann. § 2907.41(A)(2) (Page 1987)
EXCLUDED DEFENDANT COMMUNICATE WITH
ATTORNEY
Conn. Gen. Stat. Ann. § 54-86g(a) (West Supp. 1988)
(defendant may consult with his attorney); Del. Code
Ann. tit. 11, § 3511(a) (Michie 1987) (defendant able
to communicate with his attorney); Fla. Stat. § 92.53(4)
(1987) (defendant and attorney may communicate by
any appropriate private method); Mass. Ann. Laws ch.
278, 16D(b)(5) (Law. Co-op. Supp. 1988) (defendant
able to have constant private communication with
defense counsel); Mich. Stat. Ann. § 27A.2163(12)(b)
(Callaghan Supp. 1988) (defendant able to com-
municate with his or her attorney); Miss. Code Ann.
§ 13-1-407 (Harrison/Law. Co-op. Supp. 1988) (defen-
dant and attorney may communicate by any ap-
propriate private electronic or telephonic method);
Ohio Rev. Code Ann. § 2907.41(A)(2) (Page 1987)
(defendant provided electronic means of immediate
communication with his attorney); 42 Pa. Cons. Stat.
Ann. § 5984(a) (West Supp. 1988) (defendant and
defense counsel shall have adequate opportunity to
communicate); Tex. Crim. Proc. Code Ann. art.
38.071, § 4(a) (Vernon Supp. 1989) (permit defendant
to communicate contemporaneously with his attorney
during periods of recess or by audio contact); Wis. Stat.
Ann. § 967.04(8)(b)(9) (West Supp. 1987) (defendant
can communicate privately and conveniently with his
counsel)
EQUIPMENT OPERATOR
Del. Code Ann. tit. 11, § 3511(a) (Michie 1987); Ill.
A-41
Stat. Ann. ch. 38, § 106A-2(a) (West Supp. 1988);
Minn. Stat. Ann. § 595.02(4)(b) (West Supp. 1989);
42 Pa. Cons. Stat. Ann. § 5984(a) (West Supp. 1988)
IX. OPERATOR CONFINED FROM VIEW
Ariz. Rev. Stat. Ann. § 13-4253B (West Supp. 1988);
Kan. Stat. Ann. § 22-3434(b)(3) (1986); Ohio Rev. Code
Ann. § 2907.41(A)(2) (Page 1987); Okla. Stat. Ann.
tit. 22, § 753C (West Supp. 1988); Tenn. Code Ann.
§ 24-7-116(d) (Michie Supp. 1988); Tex. Crim. Proc.
Code Ann. art. 38.071, § 4(a) (Vernon Supp. 1989)
X. SUPPORT PERSON
Ariz. Rev. Stat. Ann. § 13-4253B (West Supp. 1988)
(any person whose presence would contribute to welfare
and well-being of minor); Conn. Gen. Stat. Ann. §
54-86g (West Supp. 1988); Del. Code Ann. tit. 11, §
3511(a) (Michie 1987); Ill. Stat. Ann. ch. 38, §
106A-2(a) (West Supp. 1988); Kan. Stat. Ann. §
22-3434(b)(1) (1986); Minn. Stat. Ann. § 595.02(4)(b)
(West Supp. 1989); N.Y. Crim. Proc. Law § 190.3(5)(c)
(West Supp. 1989) (doctor, nurse, or other medical
assistant if required); id. § 190.25 (3)(h) (social worker,
rape crisis counselor, psychologist, or other profes-
sional); Ohio Rev. Code Ann. § 2907.41(A)(2) (Page
1987)) (one person chosen by child and any person
whose presence judge determines would contribute to
welfare and well-being of child); Okla. Stat. Ann. tit.
22, § 753C (West Supp. 1988); 42 Pa. Cons. Stat. Ann.
§ 5984(a) (West Supp. 1988); Tenn. Code Ann. §
24-7-116(d) (Michie Supp. 1988); Tex. Crim. Proc.
Code Ann. art. 38.071, § 4(a) (Vernon Supp. 1989);
Wis. Stat. Ann. § 967.04(8)(b)(11) (West Supp. 1987)
(reasonable number of persons deemed by court sup-
portive of child)
XI. OTHERS
Fla. Stat. § 92.53(5) (1987) (interpreter if child cannot
be reasonably understood); Ill. Stat. Ann. ch. 38, §
106A-2(a) (West Supp. 1988) (security personnel); Ohio
Rev. Code Ann. § 2907.41(A)(2) (Page 1987) (inter-
preters); 42 Pa. Cons. Stat. Ann. § 5984(a) (West Supp.
A-42
1988) (shorthand reporter); Wis. Stat. Ann. §
967.04(8)(b)(6) (West Supp. 1987) (advisors to assist
questioners)
XII. PLACE
A. Chambers
Ark. Stat. Ann. § 43-2036 (Supp. 1985); Mo. Stat.
Ann. § 491.680(1) (Vernon Supp. 1989); 42 Pa. Cons.
Stat. Ann. § 5984(a) (West Supp. 1988)
B. Outside courtroom
Ariz. Rev. Stat. Ann. § 13-4253B (West Supp. 1988);
Conn. Gen. Stat. Ann. § 54-86g(a) (West Supp. 1988);
Kan. Stat. Ann. § 22-3434(a)(2) (1986); Tex. Crim.
Proc. Code Ann. art. 38.071, § 4(a) (Vernon Supp.
1989); Utah Code Ann. § 77-35-15.5(3), (4) (Supp.
1987); Vt. R. Evid. § 807 (Supp. 1986)
C. Special facility
42 Pa. Cons. Stat. Ann. § 5984(a) (West Supp. 1988)
(special facility designed for taking depositions of
children); Wis. Stat. Ann. § 967.04(8)(b)(2) (West
Supp. 1987) (room which provides adequate privacy,
freedom from distractions, informality, and comfort
appropriate to child’s developmental level)
XIII. TESTIMONY
A. Oath or admonishment
Mo. Stat. Ann. § 491.693 (Vernon Supp. 1989); Tex.
Crim. Proc. Code Ann. art. 38.071, § 4(b)(5) (Vernon
Supp. 1989); Wis. Stat. Ann. § 967 .04(8)(b)(4) (West
Supp. 1987) (if oath or affirmation inappropriate court
shall determine that child understands it is wrong to
tell a lie and will testify truthfully)
B. Competency
Tex. Crim. Proc. Code Ann. art. 38.071, § 4(b)(6)
(Vernon Supp. 1989)
A-43
C. Questioners
Del. Code Ann. tit. 11, § 3511(a) (Michie 1987) (only
attorneys or defendant acting pro se); Ill. Stat. Ann.
ch. 38, § 106A-2(a) (West Supp. 1988) (prosecutor or
court); Kan. Stat. Ann. § 22-3434(b)(2) (1986); Okla.
Stat. Ann. tit. 22, § 753C (West Supp. 1988) (only at-
torneys); Tenn. Code Ann. § 24-7-116(d) (Michie Supp.
1988) (attorneys or court); Wis. Stat. Ann. §
967 .04(8)(b)(6) (West Supp. 1987) (advisor may assist
questioner or conduct questioning)
D. Second Occasion
Mo. Stat. Ann. § 491.680(4) (Vernon Supp. 1989)
(cross-examination prior to preliminary hearing and at
least one additional time prior to trial); Ohio Rev. Code
Ann. § 2907.41(A)(1) (Page 1987) (defense may request
another deposition upon discovery of new evidence
material to defense that could not have been discovered
with reasonable diligence before first deposition); Tenn.
Code Ann. § 24-7-116(e) (Michie Supp. 1988) (on mo-
tion of either party for good cause court may order
additional testimony if time and circumstances permit
or testimony in court restricted to specified matters)
STANDARD OF NECESSITY
A. GOOD CAUSE
Ala. Code Ann. § 15-25-2(a) (Michie Supp. 1988); Ariz.
Stat. Ann. § 13-4253B (West Supp. 1988); Ark. Stat.
Ann. § 43-2036 (Supp. 1985); 42 Pa. Cons. Stat. Ann.
§ 5984(a) (West Supp. 1988); Utah Code Ann. §
77-35-15.5(3), (4) (Supp. 1987)
B. APPROPRIATE
S.C. Code Ann. § 16-3-1530(G) (Law. Co-op. Supp.
1988)
C. IN THE INTEREST OF JUSTICE
Wis. Stat. Ann. § 967.04(7) (West Supp. 1987) (10
factors listed for consideration)
A-44
D. UNAVAILABLE UNDER EVIDENTIARY RULES
Miss. Code Ann. § 13-1-407(1)(b) (Harrison/Law. Co-
op. Supp. 1988) (otherwise unavailable); Ohio Rev.
Code Ann. § 2907.41(B)(1) (Page 1987) (unavailable
under evidentiary rules)
C. MEDICALLY OR PSYCHIATRICALLY
UNAVAILABLE
Cal. Penal Code Ann. § 1346(d) (West Supp. 1989)
(emotional trauma so that victim is medically
unavailable or unavailable within meaning of Evidence
Code); Colo. Rev. Stat. Ann. § 18-3-413(4) (Bradford
1986) (emotional trauma so that victim is medically or
otherwise unavailable); Ind. Code Ann. §
35-37-4-6(c)(2)(B) (West 1986) (unavailable because a
psychiatrist has certified that testifying would be
traumatic or physician has certified medical reasons
for child not to testify)
D. INCOMPETENT
Ind. Code Ann. § 35-37-4-6(c)(2)(iii) (West 1986)
(incapable of understanding nature and obligation of
oath); Minn. Stat. Ann. § 595.02(3) (West Supp. 1989)
(incompetent)
E. TRAUMA
Fla. Stat. § 92.53(1) (1987) (at least moderate emotional
or mental harm); Mass. Ann. Laws ch. 278, § 16D(b)(1)
(Law. Co-op. Supp. 1988) (psychological or emotional
trauma); Miss. Code Ann. § 13-1-407(1)(a) (Har-
rison/Law. Co-op. Supp. 1988) (traumatic emotional
or mental distress); N.M, Sup, Ct, R, Ann, 1986,
§-504(B)(1) (Cum, Supp, 1988) (unreasonable or un-
necessary harm); Ohio Rev, Code Ann, §
2907. 41(B)U1)(b) (Page 1987) (serious emotional
trauma); RI, Gen, Laws § 11-37-13,2 (1986)
(unreasonable or unnecessary harm); 8,D, Code Ann,
§ 23A-12-9 (Supp, 1987) (substantially detrimental);
Wyo, Stat, § 7-11-408 (1987) (harm which would render
child incapable of testifying)
A-45
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED.
IN THE DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
CASE NO. 86-88
DAVID EDWARD GLENDENING,
Appellant,
Vv.
STATE OF FLORIDA,
Appellee.
Opinion filed January 14, 1987.
Appeal from the Circuit
Court for Sarasota County;
Andrew Owens, Jr., Judge.
Ronald K. Cacciatore, Tampa,
for Appellant.
Jim Smith, Attorney General,
Tallahassee, and Kim W. Munch.
Assistant Attorney General,
Tampa, for Appellee.
GRIMES, Judge.
This is an appeal from a conviction of sexual battery on a
child eleven years of age or younger,
The major thrust of appellant's argument is that the court
erred in admitting out-of-court statements made by Jennifer
Glendening, the appellant's 4-!> year-old daughter, which im.
plicated appellant, The testimony concerning these statements
could only have been admitted under section 90, 804(23), Florida
Statutes (1985), Appellant not only attacks the constitutionality
of the statute and argues its inapplicability to him but also con-
tends that there was no compliance with its requirements.
Section 90.803(23) reads as follows:
(23) HEARSAY EXCEPTION; STATEMENT OF
CHILD VICTIM OF SEXUAL ABUSE OR SEXUAL OF-
FENSE AGAINST A CHILD.—
(a) Unless the source of information or the method
or circumstances by which the statement is reported indicates
a lack of trustworthiness, an out-of-court statement made
by a child victim with a physical, mental, emotional, or
developmental age of 11 or less describing any act of child
abuse, sexual abuse, or any other offense involving an
unlawful sexual act, contact, intrusion, or penetration per-
formed in the presence of, with, by, or on the declarant
child, not otherwise admissible, 1s admissible in evidence in
any civil or criminal proceeding if:
1. The court finds in a hearing conducted outside the
presence of the jury that the time, content, and circum-
stances of the statement provide sufficient safeguards of
reliability. In making its determination, the court may con-
sider the mental and physical age and maturity of the child,
the nature and duration of the abuse or offense, the rela-
tionship of the child to the offender, the reliability of the
assertion, the reliability of the child victim, and any other
factor deemed appropriate; and
tv
The child either: -
a. Testifies; or
b. Is unavailable as a witness, provided that there is
other corroborative evidence of the abuse or offense, Un-
availability shall include a finding by the court that the
child’s participation in the trial or proceeding would result
in a substantial likelihood of severe emotional or mental
harm, in addition to findings pursuant to s, 90,804(1),
(b) Inaeriminal action, the defendant shall be notified
no later than 10 days before trial that a statement which
qualifies as a hearsay exception pursuant to this subsection
will be offered as evidence at trial, The notice shall include
A-47
a written statement of the content of the child’s statement,
the time at which the statement was made, the circumstances
surrounding the statement which indicate its reliability, and
such other particulars as necessary to provide full disclosure
of the statement.
(c) The court shall make specific findings of fact, on
the record, as to the basis for its ruling under this subsection.
in arguing facial unconstitutionality, appellant contends that
section 90.803(23) violates the sixth amendment to the United
States Constitution and article I, section 16, of the Florida Con-
stitution, both of which guarantee an accused the right to con-
front adverse witnesses. However, the United States Supreme
Court has held that the confrontation clause is satisfied when
a declarant whose out-of-court statement is sought to be intro-
duced is available for cross-examination at the trial or if found
to be unavailable, the statement bears adequate ‘‘indicia of
reliability.’’ Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65
L.Ed.2d 597 (1980). Section 90.803(23) tracks the requirements
of Ohio v. Roberts.
Comparable statutes providing for the admissibility of out-
of-court statements by child abuse victims have been held con-
Stitutional in other jurisdictions. State v. Myatt, 237 Kan. 17,
697 P.2d 836 (1985); State v. Bellotti, 383 N.W.2d 308 (Minn.
Ct. App. 1986); State v. Ryan, 103 Wash.2d 165, 691 P.2d 197
(1984).
The statute is intended to allow the courts to be sensitive
to the critical need for a child victim’s out-of-court state-
ments, while allowing them to address the various reliability
problems posed by the statements, thus protecting the defen-
dant’s confrontation rights,
697 P.2d at 842, We hold that section 90,803(23) does not violate
the confrontation clauses of the United States and Florida
Constitutions,
Appellant also argues that sinee he was eharged with a
criminal offense occurring between September |, 1984, and June
24, 1985, the provisions of section 90,803(23) cannot be employed
A-48
against him because the statute did not become effective until
Juiy 1, 1985. He contends that the admission of the out-of-court
statements which are covered by that statute constituted an ex
post facto application of the law. An ex post facto law is one
which either punishes an act which was innocent when committed,
makes the punishment for the offense more burdensome, or
deprives the accused of a defense which was available when the
offense was committed. Dobbert v. Florida, 432 U.S. 282, 97
S.Ct. 2290, 53 L.Ed.2d 344, rehearing denied, 434 U.S. 882, 98
S.Ct. 246, 54 L.Ed.2d 166 (1977). Clearly, section 90.803(23) did
not increase the punishment or deprive appellant of a defense.
Moreover, the statute had no effect upon whether appellant com-
mitted the crime but simply made it easier to p
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