Petition for Writ of Certiorari — Connecticut v. Jarzbek

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING, IF AND WHEN A

RETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE TSSUED.,

A Supreme Court, U.S.

\ FILE D

87-870 NOV 23 1987

No. .

JOSEPH F. SPANIOL, JR,

CLERK

In Che

Supreme Court Of The United States

OCTOBER TERM, 1987

STATE OF CONNECTICUT,

Petitioner,

Vv.

CHARLES JARZBEK,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE

STATE OF CONNECTICUT

JOHN J. KELLY

Chief State’s Attorney,

State of Connecticut

JOHN M. MASSAMENO

Senior Appellate Attorney,

State of Connecticut

Counsel of Record

Division of Criminal Justice

Office of the Chief

State’s Attorney

340 Quinnipiac Street

Wallingford, Connecticut 06492

(203) 265-2373

Printed by

Brescia’s Printing Services, Inc.

66 Connecticut Boulevard

East Hartford, CT 06108

528-4254

QUESTION PRESENTED

WHETHER THE: MINIMAL RESTRICTION OF

CONFRONTATION THAT OCCURRED WHEN

THE TESTIMONY OF THE CHILD SEXUAL

ASSAULT VICTIM WAS PRESENTED BY

VIDEOTAPE WAS JUSTIFIED BY CON-

SIDERATIONS OF PUBLIC POLICY AND

THE NECESSITIES OF THE CASE.

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..*

OPINION BELOW... .

JURIGUICTION . . +. « «

CONSTITUTIONAL PROVISION INVOLVED

cc Sy il a a

REASONS FOR GRANTING THE WRIT. .

es wm SS Cs) a a a a a

TABLE OF AUTHORITIES

CASES PAGE

California v. Green, 399 U.S. 149

(1970) oe 6 2 bw) @ oe 4 we es ee Be

Commonwealth v. Willis, 716 S.W.2d 224,

(Ky. 1986) ar a ae a ee ee ce ae

Cox Boradcasting Corporation v.

Cohn, 420 U.S. 469 (1975). ..

a oa 4

Davis v. Alaska, 415 U.S. 308

(1974) 6 wee te ee ee ae el ae oa a ee

Delaware v. Van Arsdall, 0.8.

106 S. Ct. 1431 (1986) <> + 6 «l- « oe

Ginsberg v. New York, 390 U.S. 629

(1968) ee ere ae ‘ . «2 2 38

Globe Newspaper Co. v. Superior Court,

43:7 @.8. See See. 6s hea Se) Se ee

Iowa v. Coy, 397 N.W.2d 730

(Iowa 1987), prob. juris. noted

sub. nom, Coy v. Iowa, U.S.

107 Ss. Ct. 3260 (1987) js 2.4 So 2 ee

Kentucky v. Stincer, 482 U.S.

S. Ct. 2659 (1987) es gm

CASES (Continued) PAGE

Mattox v. United States, 156 U.S. 237

(1695) . «6 «© «© © © «© © © © © © © 4ABDy 20

Michigan v. Long, 463 U.S. 1032

(1963) .++«-e«-e«+se-e+ «© « « 825 23, 25

New York v. Ferber, 458 U.S. 747

(1982) ee 6€ © & & & *.s Bee" eee ee

Ohio v. Roberts, 448 U.S. 56

(1980) oe © © 6 « 6 6 8 HER ees che as

State v. Gaetano, 96 Conn. 306, 114 A.2d

+ {2 @ b> } ® Perr we a ee

State v. Sheppard, 197 N.J. Super. 41l,

484 A.2d 1330 (1984) <: Sere sete ee eee

State v. Tafoya, 105 N.M. 117, 729 P.2d

1371 (Ct. App.) cert. denied, 105 N.M.

94, 728 P.2da 845 (1986) pet. for

cert. filed sub nom. Tafoya v. New

Mexico, 55 U.S.L.W. 3608 cn Feb.

Se Seer) (HO. GG-koGs « « 6 © 6 & 6 re ae

Three Affiliated Tribes Vv. World

Engineering, 467 U.S. 138, (1984) . . 25

United States v. Inadi, 475 U.S. __,

106 S. Ct. 1121 (1986) on &« @ ¢ SOe ae

STATUTES

Conn. Gen. Stat. § 53-21 (1987) ... 3

Conn. Gen. Stat. § 53a-73a (1987) .. 3

ii

CONSTITUTIONS PAGE

awh, Comet. Ore. 35S Sele oe ke eS 24

MISCELLANEOUS

Avery, The Child Abuse __ Witness:

Potential for Secondary Victimization,

of Crim. Just. J. 1, 3-4 (1983) ...17

Ordway, Parent-Child Incest: Proof at

Trial Without Testimony in Court by the

Victim, 15. U. Mich. J. of L. Reform

832, 29a CESS) «ew ec ct ee ew ee elt Ce

Parker, The Rights of Child Witnesses:

Is the Court Protector or Perpetrator,

17 New. Enq. L. Rev. 643, 647-56

(1982) see eb he ew Se Se ee eee

Ss. Katz & MM. Mazur, Understanding the

Matin S) Me) 3, : Prey ee

R. Stern, F&F. Gressman & Shapiro,

Supreme Court Practice § 3.10

Caer cea ec eats Ss Se ek tee ee 4

iii

OPINION BELOW

The opinion of the Connecticut

Supreme Court (App. at la-32a) is

reported at 204 Conn. 683, 529 A.2da 1245

(1987).

JURISDICTION

The judgment of the Connecticut

Supreme Court was rendered on August 11,

1987. See App. at 1a. The Connecticut

Supreme Court denied the state's motion

to rearque on September 23, 1987. pee

App. at 33a4.

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the United

States Constitution provides in part:

"In all criminal prosecutions, the

accused shall enjoy the right . » « &©

be confronted with the witnesses against

NEM: 4s Se

STATEMENT

The respondent was convicted in

Connecticut Superior Court of risk of

injury to or impairing the morals of a

child, in violation of Conn. Gen. Stat.

§ 53-71 (1987), and sexual assault in

the fourth degree, in violation of Conn.

Gen. Stat. § 53a-73a (1987). App. at

2a. He was sentenced to a total

effective term of imprisonment of five

years, execution suspended, and five

years probation. Ibid. On appeal to the

Connecticut Supreme Court the respondent

claimed that his confrontation rights

were violated when the testimony of the

child victim was presented at trial by

videotape. The state supreme court

concluded that, before the videotaping

procedure inay be employed, the state

must establish a “compelling need" for

the procedure by “clear and convincina

evidence, App. at 22a. Accordingly, it

remanded the case to the trial court for

further proceedings to determine whether

the state could establish such a

compelling need, and, in the event the

state were to fail to do so, for a new

trial.l App. at 26.

l. Prior to trial, the state

sought permission from the trial court

to present the testimony of the two

child victims in this case.2 At a

1 Because the federal question

presented by this petition has been

finally resolved and further proceedings

on remand could preclude review of that

question this case is ripe for review by

this Court. See Cox Broadcasting

Corporation v. Cohn, 420 U.S. 469, 482-

83 (1975); R. Stern, E. Gressman & S.

Shapiro, Supreme Court Practice § 3.10

(6th Ed. 1986).

—_—_—.-

2 Originally the state Charged

that the respondent sexually molested

both of his children. The younger of

the two, however, "froze" during the

hearing on that motion the following

facts were elicited: The respondent was

accused of sexually molesting his two

children, I.J., who was four years of

age at the time of.trial and three years

of age at the time of the alleged abuse,

and T.J., who was five years of age at

the time of trial and four years of age

at the time of the alleged abuse. R. at

2. The incidents of sexual abuse were

alleged to have occurred at the home of

the respondent during the children's

visits with him pursuant to visitation

rights he had been accorded. Ibid.

The respondent would “play a game" with

the children described as “roll around."

During the "“game" both children, who

were naked, would be subjected to sexual

competency hearing and was therefore

found incompetent as a witness. Pre--

trial Tr. (Aug. 20, 1985) at 21-32.

touching. Ibid.

The state claimed that wre

the children to testify in a courtroom,

face-to-— face with the respondent would

harm them psychologically and emotional-

ly. In support of this claim, it

presented the testimony of two clinical

sein 5 cea dh with wide-ranging ex-

perience in child sexual abuse cases.

The first testified in sum that a young

child witness would feel great anxiety

appearing in an ordinary courtroom

facing the abuser-parent and that there

was a "very high likelihood" that a

child in that position would suffer both

short and long-term trauma and emotional

upset. He also concluded that, if the

testimony of such a child could be

presented in a less threatening and more

child-oriented environment, the child's

testimony would likely be tore truthful

and complete. Pre-trial Tr. (July 29,

1985) at 8-14.

The second psychologist, who had

examined the children, rendered in

greater detail a-similar opinion. He

also alluded to the victim T.J.'s fear

of seeing the respondent and of speaking

about the incidents of abuse in front of

him. He concluded that "for either of

them to testify in person before the

accused would be traumatizing." App. at

24; Pre-trial Tr. (July 30, 1985) at 10-

16.

2. After submission of briefs and

oral argument, [7 - trial. court, ov

memorandum decision, granted the state's

motion. R. at 273. [It concluded that

the probable harm to the child victims

by a face-to-face encounter with their

abusing parent constituted “a compelling

needa" to employ the videotaping proce-

Gure and that the opportunity of

effective cross-examination satisfied

confrontation interests. R. at 6-9.

Accordingly, it ordered that the

children's testimony at a competency

hearing and, if found competent, at

trial would be taken at a room com-

parable to a child psychology laboratory

suitable for young children and equipped

with a one-way mirror. Only the judge,

not wearing a robe, the prosecutor,

Gefense counsel and a relative of the

child would be present in the room with

the child. The respondent would be

afforded the opportunity to observe the

proceedings simultaneously on television

in a separate, private room and would be

given equipment by which he could

communicate with his counsel through an

ear attachment. R. at 12-13. The

videotape of the trial testimony would

later be played for the jury. R. at ll.

De The testimony of the children

was thus taken, but only T.J. was found

competent as a witness. I.J. completely

"froze" at the competency hearing and

charges against the respondent pertain-—

ing to him had to be dropped. Pre-trial

Tr. (Aug. 20, 1985) at 21-32.

4. From his later conviction on

charges pertaining to T.J. the defendant

appealed to the Connecticut Supreme

Court, claiming that his confrontation

rights were violated. Although he

relied only upon the federal constitu-

tion in the trial court, on appeal he

appended to his brief without elabora-

tion a citation to the state constitu-—

tion's parallel confrontation guarantee.

Respondent's Brief, State Supreme Court,

at 8.

~ The state supreme court,

divided three to two, first concluded

that the right of confrontation included

the right to an "“eyeball-to-eyeball"

encounter between the accuses and

adverse witnesses. App. at 12a. In

assessing whether the state had es-

tablished a need to restrict this right,

the majority found that “there is no

empirical data that unequivocally

supports" the notion that minor victims

of sexual abuse are "inevitably trauma-

tized" by a face-to-face encounter with

the abuser. App. at 12a. It then

concluded that neither generalized

indications of harm nor _ the specific

testimony of the experts heard by the

10

trial court was sufficient to warrant

dispensing with eyehall-to-eyeball

confrontation.

Instead, the majority decided that :

the videotaping procedure used could be

justified only if the state could prove

by “clear and convincing evidence" that

"the minor victim would he so intimidat-

ed, or otherwise inhibited, by the

Physical presence of the defendant that

the trustworthiness of the victim's

testimony would be seriously called into

question." App. at 23a. Danger to the

well-being of the child, though a

"significant factor" in the analysis,

would alone not justify the procedure;

nor could it be the “primary focus" of

the court's inquiry. Only the enhanced

reliability of the child's testimony

could justify the video procedure. App.

ll

at 23a. ,

Although the majority rested its

analysis exclusively on federal con-

stitutional authority and state author-

ity construing the federal constitution-

al right, it rested its holding “not

only on the mandates of the federal

constitution, but also on independent

and adequate state [constitutional }

grounds," citing Michigan v. Long, 463

U.S. 1032, 1041 (1983). App. at 25a

(emphasis added). The court thus

remanded the case to allow the state to

meet the new standard it had announced

and, if it could not, for a new trial.

App. at 26a.

In a vigorous dissent, two members

of the state court found no federal or

state constitutional support for the

"unprecedented" and "novel" standard

12

ae

devised by the majority. App. at 28a-

29a. Nor could they conclude that

either constitutional provision required

"that the state's interest in protecting

children from psychological harm be

relegated to the status of a secondary

consideration” in this context. App. at

SA «

REASONS FOR GRANTING THE WRIT

This case presents an opportunity

for this Court to resolve finally a

recurring and unsettled question of

national significance: whether confron-

tation rights are violated when the

testimony of child victims of sexual

abuse is presented at trial by videotape

to avoid further psychological trauma to

the child.

l. The decisions of this Court

have made it clear that, while the

13

Confrontation Clause expresses a

“preference” for the face-to-face

encounter, there are “competing inter-

ests, [which) if ‘closely examined'

- May warrant dispensing with confronta-

tion at trial." Ohio vv. Roberts, 448

U.S. 56, 63 (1980). Thus, the prefer-

ence for face-to-face confrontation

"*must occasionally give way to con-

siderations of public policy and the

necessities of the case.'" Id. at 64

(quoting Mattox v. United States, 156

U.S. 237, 243 £=(1895)). Many of the

hearsay exceptions, which generally are

based on both a showing of necessity and

alternative means of establishing

trustworthiness, exemplify those

circumstances in which face-to-face

confrontation may be dispensed with.

See, e.g., Chio v. Roberts, 448 U.S. 56,

14

65-6 (1980); California v. Green, 399

U.S. 149 (1970); United States v. Inadi,

475 U.S. _s . 3806 8. Ct. ik2i (3966).

They satisfy confrontation interests not

only because the defendant usually is

unavailable but because alternative

guarantees of trustworthiness surround

the evidence as well. See Ohio v.

Roberts, 448 U.S. 56, 66 (1980); cf.

United States v. Inadi, 475 U.S. °

106 S. Ct. 1121 (1986) (admission of

hearsay evidence without offending

Confrontation Clause does not always

depend on availability of witness).

In this case, the witness was

produced at trial and the restriction on

conventional confrontation was extremely

Limited. The respondent saw the witness

testify contemporaneously through a two-

way mirror; he could observe her

15

demeanor, hear her responses, and was

given the opportunity to communicate

simultaneously with his attorney.

Likewise, the jury was able to observe

the witness, to evaluate her responses

(verbal and non-verbal) to both direct

and cross-examination. Most important-—

ly, the procedure regulated not the

content of the testimony, but merely its

means of presentation. The respondent

was given a virtually unlimited oppor-

tunity for cross-examination, "'[{t)he

main and essential purpose of confronta-

Tien. ** Delaware v. Van Arsdall,

U.S. , 106 S&S. Ct. 1431, 1435 (1966)

(quoting Davis v. Alaska, 415 U.S. 308,

315 (1974)).

Moreover, the procedure was

justified by "society's transcendent

interest in protecting the welfare of

16

children." Ginsberg v. New York, 390

U.S. 629, 640 (1968); see New York v.

Ferber, 456 U.S. 747, 786-57 (1982);

Globe Newspaper Co. v. Superior Court,

457 U.S. 596, 607 (1982). The extent to

which the fragile welfare of child

sexual assault victims is jeopardized by

forcing a face-to-face encounter with

their abuser is well documented. See,

e.g., Avery, The Child Abuse Witness:

Potential for Secondary Victimization, 7

Crim. Just. J. Zc 3-4 (1983); Parker,

The Rights of Child Witnesses: Is the

Court Protector or Perpetrator, 17 New.

Eng. L. Rev. 643, 647-56 (1982); S. Katz

& M. Mazur, Understanding the Rape

Victim 200 n.4 (1979). These general

indications of harm were supported by

specific evidence of harm in this case.

Cf. Globe Newspaper Co. v. Superior

17

Court, 457 U.S. 596 (1982) (conclusive

presumption of harm to children testify-

ing in open court in sexual assault case

violative of First Amendment rights of

press and public).3

Surely there were sufficient means

available to the defendant to test the

reliahility of the evidence. The

opportunity for effective cross~-examina-

tion is the “main and essential purpose

of confrontation," Kentucky v. Stincer,

482 U.S. — » £607 8S. Ct. 2639, 2065

(1987), for it is the principal test of

trustworthiness. Ibid.

Given the opportunity for cross-

examination, the question here becomes

3 Compelling need also arose in

this case by reason of the repeated

threats of reprisal and general in-

timidation the respondent visited upon

the victim. See Petitioner's Brief,

State Supreme Court, at 28e>——

18

| |

whether the reliability of the witness'

testimony was significantly diminished

when it was given without a face-to-face

encounter with the accused. In fact,

the reliability of a child's testimony

is actually enhanced by this modifica-—

tion of confrontation in the unique cir-

cumstances of child sexual abuse cases.

Cf. United States _v. Inadi, 475 U.S.

ee 106 Ss. Ct. at 1127 (admission of

co-conspirator's out of court declara-

tions “actually furthers" truth-finding

object of Confrontation Clause). That

is because the very features’ the

Confrontation Clause envisions as

enhancing the truthfulness of testimony

would, in the unique circumstances of

these cases, have the opposite effect.

The trauma child victims experience when

required to confront their abusers face-

19

to-face denigrates, rather than en-

hances, the reliability of their

testimony. See Commonwealth v. Willis,

716 S.W.2d 224, 230 (Ky. 1986); Ordway,

Parent-Child Incest: Proof at Trial

Without Testimony in Court by the

Victin, 23.4. Gs Mich: J. of L. Reform

131, 132 (1981); State v. Sheppard, 197

N.J. Super. 411, 484 A.2da 1330 (1984).

Considerations of public policy and

the necessities of this case surely

justified the limited restriction on

confrontation that occurred here.

The Connecticut Supreme Court's

analysis was clearly defective. Hearsay

exceptions that have been found to

satisfy confrontation interests do not

involve the presentation of evidence

more reliable than live testimony. See,

e.g., Mattox v. United States, 1S6é U.S.

20

237 (1895) (dying declarations); Ohio v.

Roberts, 448 U.S. 56 (1980) (testimony

presented at prior adversarial hearing);

California v. Green, 399 U.S. 149 (1970)

(same). Such a rule is entirely foreign

to this Court's Confrontation Clause

analysis. So, too, is the notion that

jeopardy to the psychological welfare of

child victim's of sexual abuse must be

relegated to a secondary status in this

context.

2. Much of the analysis of the

issue presented in this case will depend

upon this Court's resolution of the

appeal in Coy v. Iowa, Supreme Court No.

86-6757. Iowa v. Coy, 397 N.W.2da 730

(Iowa 1987), prob. juris. noted sub.

nom. Coy v. Iowa, ___ U.S. , 207 8.

Ct. 3260 (1987). A virtually identical

question also is currently before this

21

Court in State v. Tafoya, 105 N.M. 117,

729 P.2d 1371 (Ct. App.), cert. denied,

105 N.M. 94, 728 P.2d 845 (1986), pet.

for cert. filed sub nom. Tafoya v. New

Mexico, 55 U.S.L.W. 3608 (U.S. Feb. i2

1987) (No. 86-1343). Thus, this Court

already has recognized the national

significance of the question presented.

No more need be said here on that issue.

Under the circumstances, this Court

may wish to hold the state's petition in

this case until one or both of those

cases is resolved and then remand this

case for reconsideration “in light of

their resolution.

. There is a substantial likeli-

hood that resolution of the state

constitutional question by the majority

of the Connecticut Supreme Court was

affected by an erroneous interpretation

22

of federal law. Hence, this case does

not present an academic question. See

Michigan v. Long, 463 U.S. 1032, 1041-42

(1963).

It is true that the majority of the

Connecticut Supreme Court purported to

rest its decision on the “independent

and adequate state {constitutional ]

grounds." App. at 25a. Ordinarily,

federal review would thus be foreclosed.

It should not be here, however, for

several reasons. First, the confronta-

tion issue presented by the respondent

was analyzed exclusively on the basis of

federal ee teek sensi authority or

state cases construing federal constitu-

tional law. Second, no lexicological or

historical difference between the state

and federal confrontation clauses was

identified; no lexicological difference

23

exists. See Conn. Const., art. I § 8.

Third, the justices in the majority

believed that their holding was re-

quired, in part, by "the mandates of the

federal constitution." App. at 25a.

Fourth, the dissenting justices ina

three to two decision believed that

neither constitution supported the

holding of the majority. Finally,

because the parties did not brief the

state constitutional issue, the majority

was unaware of the court's prior

Gecision holding that the interests

underlying the two confrontation

provisions and the principles governing

their application "are identical."

State v. Gaetano, 96 Conn. 306, 310, 114

A.2d 82 (1921).

There is thus a substantial

likelihood that~- an error in the inter-

24

_

pretation of a clause in the federal

constitution would affect the inter-

pretation of the state constitution's

parallel provision. Or, to use the

language of this Court in Three Af-

filiated Tribes v. World Engineering,

467 U.S. 138 (1984), it is “far

less than clear" that the state court's

interpretation of its state constitution

“was not influenced by its understanding

of federal law." Id. at 155 (emphasis

added). See Michigan v. Long, 463 U.S.

at 1044. Under the circumstances, this

question is far from academic. ;

In any event, if this Court were to

hold this petition pending resolution of

the substantially similar confrontation

issue in Coy, a remand to the Connec-—

ticut Supreme Court for reconsideration

in Light of Coy, far from inhibiting the

development of state constitutional law,

would make it clear to all involved that

only state constitutional law is in fact

being developed.

CONCLUSION

For these reasons, the petition

should be granted.

Respectfully submitted.

THE STATE OF CONNECTICUT

Petitioner

By:

OHN M. MASSAMENO

Senior Appellate Attorney

Office of the Chief State's

Attorney

Counsel of Record

With whom on the petition:

JOHN J. KELLY

Chief State's Attorney

Division of Criminal

Justice

340 Quinnipiac Street

Wallingford, CT 06492

(203) 265-2373

26

|

In Che

Supreme Court Of Che United States

OCTOBER TERM, 1987

STATE OF CONNECTICUT,

Petitioner,

Vv.

CHARLES JARZBEK,

Respondent.

APPENDIX

204 Conn. 683 AUGUST, 1987 683

State v. Jarzbek

STATE OF CONNECTICUT v. CHARLES JARZBEK

(12868)

Peters, C. J.. HEALEY, SHEA, CALLAHAN and Giass, Js.

Convicted of the crimes of risk of injury to or impairing the morals of a

child and sexual assault in the fourth degree, the defendant appealed

claiming that his federal and state constitutional right of confronta-

tion had been violated by the admission of videotaped testimony taken

outside his physical presence. The trial court had permitted the videotap-

ing of the testimony of the alleged victim, the defendant's five year

old daughter, after the state produced expert testimony to the effect

that the child would be psychologically and emotionally traumatized

if she were to be required to testify in open court in the presence of

the defendant. Held that in criminal prosecutions, like that here, involv-

ing the alleged sexual abuse of children of tender years, videotaping

the testimony of a minor victim outside the physical presence of the

defendant is a constitutionally permissible practice if, and only if, the

state proves by clear and convincing evidence a compelling need to

exclude the defendant from the witness room during the victim’s tes-

timony; the required determination of compelling need not having been

made at trial, the matter was remanded for an evidentiary hearing on

that issue.

(Two justices dissenting)

Argued June 10—decision released August 11, 1987

Substitute information charging the defendant with

the crimes of risk of injury to or impairing the morals

of a child and sexual assault in the fourth degree,

brought to the Superior Court in the judicial district

of Middlesex, geographical area number nine, and tried

to the jury before Hale, J.; verdict and judgment of

guilty, from which the defendant appealed: Remanded

for further proceedings.

M. Hatcher Norris, for the appellant (defendant).

John M. Massameno, assistant state’s attorney, with

whom were Roseanne Wagner, legal intern, and, on the

brief, Maureen Platt, former assistant state’s attorney,

for the appellee (state).

684 AUGUST, 1987 204 Conn. 683

State v. Jarzbek

PETERS, C. J. The sole issue in this appeal is whether,

in a criminal prosecution involving alleged sexual abuse

of children, a minor victim may testify through the use

of a videotape made outside the physical presence of

the defendant. The defendant, Charles Jarzbek, was

charged by information with the crimes of risk of injury

to or impairing the morals of a child in violation of Gen-

eral Statutes § 53-21 and sexual assault in the fourth

degree in violation of General Statutes § 53a-73a.! Prior

to trial, the state, over the defendant’s objection,

obtained permission from the trial court to videotape

the testimony of the defendant’s daughter, one of

the alleged victims, outside his physical presence. As

requested by the state, this videotaped testimony was

admitted into evidence at the defendant’s trial. In

accordance with a jury verdict finding the defendant

guilty on both counts, the trial court rendered a judg-

ment sentencing the defendant to a total effective term

of imprisonment for five years, execution suspended,

and five years probation. The defendant has appealed

1 {General Statutes] Sec. 53-21. INJURY OR RISK OF INJURY TO, OR

IMPAIRING MORALS OF, CHILDREN. Any person who wilfully or unlawfully

causes or permits any child under the age of sixteen years to be placed in

such a situation that its life or limb is endangered, or its health is likely

to be injured, or its morals likely to be impaired, or does any act likely to

impair the health or morals of any such child, shall be fined not more than

five hundred dollars or imprisoned not more than ten years or both.”

“(General Statutes] Sec. 53a-73a. SEXUAL ASSAULT IN THE FOURTH

DEGREE: CLASS A MISDEMEANOR. (a) A person is guilty of sexual assault

in the fourth degree when: (1) Such person intentionally subjects another

person to sexual contact who is (A) under fifteen years of age, or (B) men-

tally defective or mentally incapacitated to the extent that he is unable to

consent to such sexual contact, or (C) physically helpless, or (D) less than

eighteen years old and the actor is such person’s guardian or otherwise

responsible for the general supervision of such person’s welfare, or (E) in

custody of law or detained in a hospital or other institution and the actor

has supervisory or disciplinary authority over such other person; or (2) such

person subjects another person to sexual contact without such other per-

son’s consent, or (3) such person engages in sexual contact with an animal

or dead body. fs

“(b) Sexual assault in the fourth degree is a class A misdemeanor.”

A-2

_ 204 Conn. 683 AUGUST, 1987 685

State v. Jarzbek

from that judgment. We remand for a further eviden-

tiary hearing to give the state the opportunity to estab-

lish a compelling need for the videotaping procedure

used in this case.

I

Before we address the merits of the defendant’s

attack on the videotaped evidence taken outside his

physical presence, we must first identify the process

by which that videotape was sought, the videotaping

procedure that the trial court authorized, and the role

that the videotaped testimony played at the defendant’s

trial. A detailed understanding of the record is essen-

tial to put the defendant’s claims into focus.

The trial court permitted videotaping of the testi-

mony of the alleged victims, T, and her brother, I, in

response to a pretrial motion by the state. In support

of its motion, the state presented the testimony of two

clinical psychologists who opined that the children

would be psychologically and emotionally traumatized

if they were to be required to testify in open court in

the presence of the defendant. The defendant called

no witnesses of his own, although he did cross-examine

the state’s witnesses.

In granting the state’s motion, the trial court framed

the issue as ‘‘whether or not the videotaping of the tes-

timony of these four and five year old witnesses out-

side the presence of the defendant and the jury in a

case alleging sexual molesting by their father violates

the defendant’s sixth amendment right of confronta-

tion.” The court noted the widespread prevalence of

child sexual abuse and the ‘‘tremendous rise’’ in the

number of such cases in recent years. Relying upon the

testimony of the psychologists, and upon the state’s

assertion that sexually abused children suffer further

trauma when forced to testify in the presence of their

alleged abusers, the court concluded that the children’s

A-3

686 AUGUST, 1987 204 Conn. 683

State v. Jarzbek

testimony could be videotaped outside the physical pres-

ence of the defendant without violating his constitu-

tional right of confrontation.

The trial court’s order set out specific procedures

designed to balance the needs of the children to tes-

tify without trauma and the right of the defendant to

confront the witnesses against him.? The court desig-

nated those who would be permitted to be present when

one of the children testified: the child’s mother, the

judge, the state’s attorney and one defense counsel. The

court required the videotaping to take place in a set-

ting comparable to a child psychology laboratory, con-

sisting of a witness room connected by a one-way

mirror to a monitoring room. The defendant, in the

monitoring room, would not be visible from the wit-

ness room, but would be able to observe the witness

fully and directly and to hear the testimony as it was

given. The court recognized that the defendant was

entitled to access to his counsel for the purpose of cross-

* Although the court did not rely on General Statutes § 54-86g, because

that statute did not become effective until after the initiation of this action,

the videotaping procedure it approved is essentially the same procedure

now prescribed by § 54-86g.

General Statutes § 54-86g provides: ‘“TESTIMONY OF VICTIM OF CHILD

ABUSE. COURT MAY ORDER TESTIMONY TAKEN OUTSIDE COURTROOM. PRO-

CEDURE. (a) In any criminal] prosecution of an offense involving assault,

sexual assault or abuse of a child twelve years of age or younger, the court

may, upon motion of the attorney for any party, order that the testimony

of the child be taken in a room other than the courtroom in the presence.

and under the supervision of the trial judge hearing the matter and be tel-

evised by closed circuit equipment in the courtroom or recorded for later

showing before the court. Only the judge, the attorneys for the defendant

and for the state, persons necessary to operate the equipment and any per-

son who would contribute to the welfare and well-being of the child may

be present in the room with the child during his testimony. The attorneys

and the judge may question the child. The defendant may observe and hear

the testimony of the child and may consult with his attorney, but the court

shall ensure that the child cannot hear or see the defendant.

“(b) If the court orders the testimony of a child to be taken under sub-

section (a) of this section, the child shall not be required to testify in court

at the proceeding for which the testimony was taken.”

A-4

204 Conn. 683 AUGUST, 1987 687

State v. Jarzbek

examining the witness, and ordered that the witness

room and the monitoring room be electronically linked

by a communications device, such as an ear attachment,

that would permit the defendant to communicate

instantly with his counsel. To further the defendant’s

meaningful participation in cross-examination, the

court also provided that the defendant should have the

assistance of co-counsel while he was observing the

videotaping from the monitoring room.

After a competency hearing, only T, the defendant’s

daughter, was deemed competent to testify at trial.*

T’s testimony was videotaped for trial in accordance

with the court’s order. Although the court’s order

would have enabled the defendant to observe the tap-

ing in the monitoring room, he chose not to attend the

hearing. Defense counsel had a full opportunity to cross-

examine T at the hearing at which her testimony was

taped.

In the videotape that was introduced into evidence

at trial, T described the game of ‘‘roll around,” which

she demonstrated through the use of anatomically cor-

rect dolls. After the dolls’ clothes had been removed,

she placed them together, face to face, demonstrating

genital contact. She stated that she had played the

game with her father ‘“‘many times’”’ and that they had

always played with their clothes off. She further testi-

fied that her buttocks had gotten dirty from the game

and that she had had to take a bath “[s]lo Grammy

{wouldn’t] know.” She also stated that her father had

told her that he would hit her if she told anyone about

the game.

The jury could reasonably have found other evidence

introduced by the state at trial to be corroborative of

* The younger witness, I, appeared at the competency hearing but refused

to testify, despite the efforts of the trial court and the state’s attorney to

elicit testimony from him.

>

'

eg

688 AUGUST, 1987 204 Conn. 683

State v. Jarzbek

T’s videotaped testimony. The games that the defend-

ant played with T came to light when J, her eleven year

old cousin, observed T, then four years old, and I, her

three year old brother, playing in a bedroom of their

Middletown home. J observed the two on the bed, the

victim on top of her brother, face to face, ‘‘rubbing up

and down”’ in an obviously sexual manner. After watch-

ing his cousins for about thirty seconds, to confirm that

he was not misconstruing their behavior, he asked what

they were doing. Although the victim initially tried to

“cover up” their activity, she then acknowledged that

she and her brother had been playing a secret game

that her father had taught her, and that her father had

told her to keep the game a secret or else she “would

never see him again.”

Various adult relatives also testified, at trial, about

conversations with T concerning the games she had

played with her father. The victim had given essentially

the same account, in varying degrees of detail, to her

aunt, her mother, her maternal grandmother, and a

social worker.

In his appeal, the defendant maintains that the trial

court erred in-admitting into evidence the videotaped ©

testimony of his daughter because it was videotaped

outside his physical presence. In challenging the legality

of this videotaping procedure, the defendant has raised _

only two interconnected claims. Notably, he has con-

siderably narrowed the focus of our inquiry because

there are a number of possibly related questions that

he has not pursued. The defendant does not challenge

the competency of the minor victim, T, to testify.‘ Nor

‘ The state’s motion for permission to videotape the evidence to be given

by the children included a request for a videotaped hearing about the chil-

dren’s competency to testify. The defendant has not challenged the propriety

of videotaping a competency hearing outside his physical presence. In

Stincer v. Commonwealth, 712 S.W.2d 939 (Ky. 1986), aff'd, (55 U.S.L.W.

4901, June 16, 1987), the Supreme Court of the United States recently

upheid the constitutionality of such a procedure under the sixth amend-

ment to the United States constitution.

A-6

204 Conn. 683 AUGUST, 1987 689

State v. Jarzbek

does he oppose the use of videotaped testimony per se

at criminal trials. To the contrary, he conceded at oral

argument that, under appropriate circumstances, and

with proper procedural safeguards in place, videotaped

testimony is a constitutionally viable alternative to live

testimony. The defendant likewise does not argue that

the videotaped testimony presented at trial distorted

the appearance or demeanor of the minor victim or

unduly limited the jury’s ability to judge her credibil-

ity. Finally, he does not object to the informal setting

in which the hearing was conducted and he makes no

claim that he was denied a full opportunity to cross-

examine the victim at the pretrial videotaping session.

Rather, the defendant challenges the admissibility of

the videotaped testimony solely on the ground that he

was denied his constitutional right to be in the witness

room, physically confronting the victim, while she tes-

tified. He claims that the trial court’s videotaping order

violated: (1) his constitutional right to confront the wit-

nesses against him, a right guaranteed both by the sixth

and fourteenth amendments to the United States con-

stitution and by article first, § 8, of the Connecticut con-

stitution;® and (2) his right to be present at trial, a right

guaranteed by Practice Book § 968 in the absence of

a finding of waiver, which the trial court in this case

* The sixth amendment to the United States constitution provides in rele-

vant part: “In all criminal procecutions, the accused shall oy the right

. to be confronted with the witnesses against him ... .

The fourteenth amendment to the United States constitution provides

in relevant part: “‘{NJor shall any State deprive any person of life, liberty

or property, without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

Article first, § 8, of the Connecticut constitution provides in relevant part:

“In all criminal prosecutions, the accused shall have a right . . . to be

confronted by the witnesses against him .. . .”

The defendant effectively withdrew at oral argument his claim that his

constitutional right of confrontation was also violated by virtue of the fact

that the jury was not in the witness room observing the victim during her

testimony.

A-7

690 2 AUGUST, 1987 204 Conn. 683

State v. Jarzbek

did not make.* Because the second claim is analytically

subsumed under the first, we will address the two

claims jointly.

II

We will first address the constitutional origins of the

defendant’s claims. Relying on the right to confronta-

tion guaranteed to him by the federal and state con-

stitutions; U.S. Const., amends. VI, XIV; Conn. Const.,

art. I, § 8; the defendant maintains that his right phys-

ically to confront the witnesses against him was not

satisfied by affording him the opportunity to watch T

testify on videotape and to cross-examine her in the

setting described above. Absent a compelling need,

which has not been established here, he argues that he

has a constitutional right to insist on a face-to-face con-

frontation with adverse witnesses.

It is useful to consider this novel constitutional claim

by dividing it into a number of subsidiary issues. We

must first decide whether the defendant is entitled to

invoke the state constitution, which he did not cite to

the trial court when it ruled on the state’s pretrial

motion for videotaping. Second, we must determine

whether the rights protected by the relevant federal

and state confrontation clauses encompass a right of

physical confrontation in addition to a right of cross-

examination. Third, we must decide whether the rights

* “(Practice Book] Sec. 968. ——-CONTINUED PRESENCE NOT REQUIRED

“The defendant must be present at the trial and at the sentencing hear-

ing, but if he will be represented by counsel at the trial or sentencing hear-

ing, the judicial authority may:

(1) Excuse him from being present at the trial or a part therof or the

sentencing hearing if he waives the right to be present;

“(2) Direct that the trial or a part thereof or the sentencing hearing be

conducted in his absence if the judicial authority determines that he waived

his right to be present; or

(3) Direct that the trial or a part thereof be conducted in his absence

if the judicial authority has justifiably excluded him from the courtroom

because of his disruptive conduct, pursuant to Sec. 892.”

A-8

204 Conn. 683 AUGUST, 1987 691

State v. Jarzbek

conferred by the federal and state confrontation clauses

are absolute and, if not, under what circumstances they

may give way to other compelling interests.

A

The state maintains that the defendant may not, on

appeal, invoke the confrontation clause of our state con-

stitution because he did not rely on that provision at

trial. We disagree. If the record adequately supports

an appellate inquiry, a constitutional challenge that

implicates the fundamental constitutional right of an

accused to confront witnesses against him; Pointer v.

Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 138 L. Ed. 2d

923 (1965); as well as the fundamental fairness of his

trial; State v. Couture, 194 Conn. 530, 560-65, 482 A.2d

300 (1984), cert. denied, 469 U.S. 1192, 105 S. Ct. 967,

83 L. Ed. 2d 971 (1985); can be raised on appeal for

the first time. This is such a case. Accordingly, we will

review the defendant’s constitutional claims under both

the state and the federal constitutions. State v.

Fullwood, 199 Conn. 281, 283, 507 A.2d 85 (1986); State

v. King, 187 Conn. 292, 309, 445 A.2d 901 (1982); see

State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).

B

The state and the defendant agree that videotaping

the testimony of a witness against the defendant, out-

side the defendant’s physical presence, implicates the

right of an accused to confront witnesses against him

as guaranteed by the confrontation clause of both the

fedeng! 2nd state constitutions. U.S. Const., amends.

VI, XIV; Conn. Const., art. I, § 8; Davis v. Alaska, 415

U.S. 308, 318, 94S. Ct. 1105, 39 L. Ed. 2d 347 (1974);

Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct.

1038, 35 L. Ed. 2d 297 (1973); Pointer v. Texas, supra,

403-404; State v. Maldonado, 193 Conn. 350, 356, 478

A.2d 581 (1984); State v. Wilson, 188 Conn. 715, 721,

453 A.2d 765 (1980); State v. Hackett, 182 Conn. 511,

A-9

692 AUGUST, 1987 204 Conn. 683

State v. Jarzbek

517, 438 A.2d 726 (1980). The state and the defendant

also agree that each of these confrontation clauses

affords the criminal defendant two types of protections:

“the right physically to face those who testify against

him, and the right to conduct cross-examination.”

Pennsylvania v. Ritchie, U.S. , 1078. Ct. 989,

998, 94 L. Ed. 2d 40 (1987); Delaware v. Van Arsdall,

US. ,106S8S. Ct. 1431, 1425, 89 L. Ed. 2d 674

(1986); Delaware v. Fensterer,474U.S. ,106S.Ct.

292, 294, 88 L. Ed. 2d 15 (1985); State v. Maldonado,

supra; State v. Hackett, supra.

Although most confrontation clause litigation has

involved an alleged infringement on the right of cross-

examination, the right of physical confrontation is an

equally fundamental component of the clauses. As the

United States Supreme Court has asserted, a defend-

ant’s “‘literal right to ‘confront’ the witness at the time

of trial . . . forms the core of the values furthered

by the Confrontation Clause.” California v. Green, 399

U.S. 149, 157, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970);

Delaware v. Fensterer, supra; Davis v. Alaska, supra,

315; Dowdell v. United States, 221 U.S. 325, 330, 31

S. Ct. 590, 55 L. Ed. 753 (1911). The clause was origi-

nally conceived as a safeguard “‘to prevent depositions

or ex parte affidavits . . . being used against the pris-

oner in lieu of a personal examination and cross-

examination of the witness in which the accused has

an opportunity, not only of testing the recollection and

sifting the conscience of the witness, but of compelling

him to stand face to face with the jury in order that

they may look at him, and judge by his demeanor upon

the stand and the manner in which he gives his testi-

mony whether he is worthy of belief.”” Mattox v. United

States, 156 U.S. 237, 242-438, 15 S. Ct. 337, 39 L. Ed.

409 (1895); see also 5 J. Wigmore, Evidence (3d Ed.

1940) §§ 1365, 1367. The clause finds its modern justifi-

cation in the perceived role that physical confrontation

A-10

204 Conn. 683 AUGUST, 1987 693

State v. Jarzbek

plays in the truth-seeking process. Confrontation is

intended to enhance that process in a number of ways:

by affording the accused an opportunity for face-to-face

contact with adverse witnesses at trial; by ensuring that

a witness will give his statements under oath, which

impresses upon him the seriousness of the proceedings

and importance that he testify truthfully; by forcing

a witness to submit to cross-examination, a practice

designed to elicit the truth; and by aiding the jury in

assessing the credibility of a witness by observing his

demeanor on the stand. Calzfornia v. Green, supra, 158.

C

The protection that the confrontation clauses afford

to a criminal defendant is not, however, absolute. The

United States Supreme Court has recognized that com-

peting interests ‘“‘may warrant dispensing with confron-

tation at trial.’”’ Ohio v. Roberts, 448 U.S. 56, 64, 100

S. Ct. 2531, 65 L. Ed. 2d 597 (1980); Chambers v.

Mississippi, supra, 295; Mattox v. United States, supra,

243. For example, although the federal confrontation

clause has been interpreted as reflecting a “‘preference

for face-to-face confrontation at trial’; Ohio v. Roberts,

supra, 63; an ‘‘adequate opportunity for cross-examin-

ation may satisfy the clause even in the absence of phys-

ical confrontation.”” Douglas v. Alabama, 380 U.S. 415,

418, 85 S. Ct. 1074, 13 L. Ed. 2d 934 (1965). In this

case, the videotaping procedure at issue was designed

to afford the defendant a full opportunity to cross-

examine the minor victim. See Stincer v. Common-

wealth, 712 S.W.2d 939, 941 (Ky. 1986), aff’d, (55

U.S.L.W. 4901, June 16, 1987). The issue presently

before us, therefore, is to determine what circum-

stances warrant impairment of the second confronta-

tion requirement, the defendant’s right of physical

confrontation.

A-11

694 AUGUST, 1987 204Conn 683

State v. Jarzbek

In claiming that the videotaping procedure unduly

infringed on this constitutional right, the defendant

contends that the state has failed to establish an ade-

quate justification for videotaping the adverse testi-

mony of his daughter where she could not see him.

Although he was permitted to observe the witness dur-

ing her testimony through a one-way mirror, he main-

tains that this arrangement did not satisfy the

constitutional requirement of physical confrontation.

According to him, absent some compelling need, which

the state has not demonstrated here, the federal and

state confrontation clauses require no less than eyeball-

to-eyeball confrontation between the defendant and

adverse witnesses.

The state’s broad response to this claim is that the

constitutionality of the videotaping procedure may be

upheld because the defendant had an opportunity to

participate visually and electronically in the taking of

the testimony that he challenges. The state maintains

that this procedure afforded the defendant the equiva-

lent of face-to-face access to the adverse witness, and

that the confrontation clauses do not require more. See

Ohio v. Roberts, supra, 63; Commonwealth v. Willis,

716 S.W.2d 224, 230 (Ky. 1986); State v. Sheppard, 197

N.J. Super. 411, 484 A.2d 1330 (1984). Interpreting the

clauses in this manner, according to the state, ade-

quately serves the underlying purpose of confrontation,

which is to further the accuracy of the truth-seeking

process. See California-v. Green, supra, 161.

The state’s argument is unpersuasive because it pays

insufficient deference to the constitutional requirement

of an opportunity for physical confrontation, which we

interpret to mean eyeball-to-eyeball confrontation,

between the accused and adverse witnesses. Pennsyl-

vania v. Ritchie, supra, 998; Delaware v. Van Arsdall,

supra, 1435; Delaware v. Fensterer, supra, 294; Califor-

nia v. Green, supra; contra Commonwealth v. Willis,

A-12

204 Conn. 683 AUGUST, 1987 695

State v. Jarzbek

supra, 230; State v. Sheppard, supra, 432. It is widely

recognized that physical confrontation contributes sig-

nificantly, albeit intangibly, to the truth-seeking pro-

cess: ““‘The requirement of personal presence .. .

undoubtedly makes it more difficult to lie against some-

one, particularly if that person is an accused and

present at trial.” 4 J. Weinstein & M. Berger, Evidence

(1979) § 800[01], p. 800-10; Dowdell v. United States,

supra, 330; United States v. Benfield, 593 F.2d 815, 819

(8th Cir. 1979); C. McCormick, Evidence (3d Ed. 1984)

§ 245, p. 727; see H. Sahm, “‘Demeanor Evidence: Elu-

sive and Intangible Imponderables,”’ 47 A.B.A.J. 580

(1961). In addition, physical confrontation furthers

other goals of our criminal justice system, in that it

reflects respect for the defendant’s dignity and the pre-

sumption that he is innocent until proven guilty. The

state therefore cannot prevail in its categorical argu-

ment that the videotaping procedure fully complied

with constitutional confrontation requirements.

The state argues, alternatively, that even if the

videotaping procedure infringed on the defendant's

right of confrontation, that infringement was slight and

can be justified as necessary to combat the widespread

sexual abuse of children that has become a growing pub-

lic concern. See Connecticut Child Abuse Task Force,

Final Report 5 (1986); H. Ward, C. Fletcher, N. Fuzesi

& A. Sayer, Growing Up At Risk in Connecticut (1984)

p. 56. The salient question for us to resolve is whether

the procedures used in this case can be justified on this

narrower ground.

As the state reminds us, the numerous exceptions

to the rule against hearsay illustrate circumstances in

which a defendant’s right of confrontation is not abso-

lute. See generally C. McCormick, supra, §§ 245, 246.

For example, certain hearsay testimony, such as a

dying declaration; Mattoz v. United States, supra, 244;

State v. Onofrio, 179 Conn. 23, 43, 425 A.2d 560 (1979);

A-13

———sw

696 AUGUST, 1987 204 Conn. 683

State v. Jarzbek

or testimony presented at a prior adversarial hearing;

Ohio v. Roberts, supra, 68-70; California v. Green,

supra, 164; see State v. Parker, 161 Conn. 500, 504,

289 A.2d 894 (1971); is admissible even though the

defendant does not have an opportunity to cross-

examine or confront the declarant, who is unavailable

to testify at trial. The state argues that, like the hear-

say testimony that is deemed admissible because it

bears sufficient indicia of reliability, the videotaped tes-

timony of the minor witness in this case possessed ade-

quate guarantees of trustworthiness to justify its

admission.

The state’s hearsay argument does not imply that the

videotaped testimony in this case constituted hearsay.’

Like ordinary courtroom testimony, the testimony of

the minor victim in this case was videotaped at a hear-

ing before the trial judge, held in a modified courtroom,

and conducted specifically for the purpose of preserv-

ing the witness’s testimony for trial. Moreover, both

the state and the defendant had a full opportunity to

examine and cross-examine the witness at the hearing.

Kentucky v. Stincer, supra, 4903; cf. Pointer v. Texas,

supra, 406-407; Barber v. Page, 390 U.S. 719, 725, 88

S. Ct. 1318, 20 L. Ed. 2d 255 (1968). We agree with

the state that the circumstances surrounding the tak-

’ For purposes of this appeal, we rely upon the definition of “hearsay”

set forth in Rule 801 of the Federal Rules of Evidence, which provides in

part that “ ‘{hjearsay’ is a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth

of the matter asserted.” (Emphasis added.) Fed. R. Evid. 801 (c); C. McCor-

mick, Evidence (3d Ed. 1984) § 246. The rule against hearsay reflects the

proposition that hearsay evidence is less reliable than sworn, in-court tes-

timony because the declarant has not been subjected to the safeguards that

advance the accuracy of a witness's testimony: the declarant’s statements

were not made under oath; he is not present at trial so that the jury may

observe his demeanor and thereby judge his credibility; and he cannot be

cross-examined. State v. Barlow, 177 Conn. 391, 396, 418 A.2d 46 (1979),

Cherniske v. Jajer, 171 Conn. 372, 377, 370 A.2d 981 (1976); C. McCor-

mick, supra, § 245, pp. 726-27.

A-14

204 Conn. 683 AUGUST, 1987 697

State v. Jarzbek

ing of the minor victim’s testimony make it inherently

more reliable than the out-of-court declarations charac-

terized as hearsay. Rather than view the videotaped

testimony as hearsay, we therefore consider it to be

the functional equivalent of testimony in court. Com-

monwealth v. Willis, supra, 228; note, ‘““‘The Testimony

of Child Victims in Sex Abuse Prosecutions: Two Legis-

lative Innovations,’’ 98 Harv. L. Rev. 806, 823 (1985).

Contrary to the defendant’s claim, the videotaped tes-

timony is therefore not inadmissible simply because it

does not fall within any of the established exceptions

to the hearsay rule.

A defendant’s right of physical confronta‘ion is also

demonstrably short of absolute when, by his own con-

duct, he has waived the right of confrontation either

directly or indirectly, as by having waived his right to

be present at trial. For most purposes, the state cannot

avail itself of a claim of waiver absent an appropriate

finding by the trial court. Our Practice Book § 968 also

requires such a finding, which the trial court in this case

did not make. The state argues nonetheless that the

defendant constructively waived his right of confron-

tation by virtue of the threats he made against the

minor victim, threats that were testified to by the vic-

tim herself and corroborated by the testimony of

others.

A criminal defendant may waive his sixth amendment

right of confrontation, which encompasses his right to

* Because the defendant's right to be present at trial essentially derives

from the confrontation clause, we consider his claim under Practice Book

§ 968 to be subsumed under his claim grounded on the federal and state

constitutional confrontation clauses. United States v. Gagnon, 470 U.S. 522,

526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985); State v. Simino, 200 Conn.

113, 128-29, 509 A.2d 1039 (1986).

The state argues that, by virtue of the videotaping procedures employed

here, the defendant was in fact ‘‘present’’ during the minor victim’s testi-

mony. Affording the defendant an opportunity to view the proceedings from

behind a one-way mirror, however, is not the equivalent of affording him

a right to be present.

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698 AUGUST, 1987 204 Conn. 683

State v. Jarzbek

be present at trial, by reason of his own misconduct.

Illinois v. Allen, 397 U.S. 337, 342-43, 90 S. Ct. 1057,

25 L. Ed. 2d 353 (1970); State v. Drakeford, 202 Conn.

75, 79, 519 A.2d 1194 (1987); State v. Simino, 200 Conn.

113, 128-29, 509 A.2d 1039 (1986); see also United

States v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482,

84 L. Ed. 2d 486 (1985). Such a waiver implied by law

must be distinguished from an express waiver of a con-

stitutional right, which is ordinarily valid only if there

is ‘‘an intentional relinquishment or abandonment of

a known right or privilege.”’ Johnson v. Zerbst, 304 U.S.

458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); see

State v. Drakeford, supra; State v. Simino, supra, 129;

Talton v. Warden, 171 Conn. 378, 384, 370 A.2d 965

(1976). A defendant may waive his right of confronta-

tion in a number of ways, such as by his voluntary and

deliberate absence from trial; Taylor v. United States,

414 U.S. 17, 94S. Ct. 194, 38 L. Ed. 2d 174 (1973);

by disruptive conduct which requires his removal from

the courtroom; Illinois v. Allen, supra; State v.

Drakeford, supra; State v. Simino, supra; see State v.

Johnson, 185 Conn. 163, 178-79, 440 A.2d 858 (1981),

aff'd, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823

(1983); or by causing a witness to be unavailable for

trial for the purpose of preventing that witness from

testifying. United States v. Mastrangelo, 693 F.2d 269,

272-73 (2d Cir. 1982), cert. denied, 467 U.S. 1204, 104

S. Ct. 2385, 81 L. Ed. 2d 343 (1984); United States v.

Thevis, 665 F.2d 616, 630-31 (5th Cir.), cert. denied,

sub. nom. Evans v. United States, 456 U.S. 1008, 102

S. Ct. 2300, 73 L. Ed. 2d 1303 (1982); State v. Altrui,

188 Conn. 161, 173, 448 A.2d 837 (1982). The state

argues that the latter situation, whereby the defend-

ant procures a witness’s silence, either by chicanery;

United States v. Mayes, 512 F.2d 637, 648-51 (6th Cir.),

cert. denied, 422 U.S. 1008, 95 S. Ct. 2629, 45 L. Ed.

2d 670 (1975); by threats; United States v. Balano, 618

A-16

204 Conn. 683 AUGUST, 1987 699

State v. Jarzbek

F.2d 624, 628-29 (10th Cir. 1979), cert. denied, 449 U.S.

840, 101 S. Ct. 118, 66 L. Ed. 2d 47 (1980); United

States v. Carlson, 547 F.2d 1346, 1358 (8th Cir. 1976),

cert. denied, 431 U.S. 914, 97 S. Ct. 2174, 53 L. Ed.

2d 224 (1977); or by actual violence or murder; United

States v. Thevis, supra; is closely analogous to the facts

of this case. According to the state, here, as in those

cases, the defendant waived his right to confront the

minor victim by intimidating her and threatening to

punish her if she told anyone about the games she had

played with him.

We conclude that the present record does not dem-

onstrate the kind of conduct that constitutes waiver

of a defendant’s right of physical confrontation. In the

waiver cases cited above, the defendant was suspected

of scheming to obstruct justice by tampering with a wit-

ness after the crime in question had occurred, the judi-

cial proceedings against him had commenced, and the

witness allegedly subjected to intimidation had given

pretrial testimony incriminating the defendant. Here,

by contrast, although the threats made by the defend-

ant against the minor victim were similarly designed

to conceal his wrongdoing, they were made during the

commission of the very crimes with which he is charged.

We acknowledge that threats such as those made by

the defendant could potentially inhibit a witness, caus-

ing the witness to testify untruthfully or to refuse to

testify at all. The constitutional right of confrontation

would have little force, however, if we were to find an

implied waiver of that right in every instance where

the accused, in order to silence his victim, uttered

threats during the commission of the crime for which

he is on trial. The state therefore cannot prevail on its

claim that the defendant waived his right of confron-

tation. Cf. State v. Sheppard, supra, 435-41.

A-17

700 AUGUST, 1987 204 Conn. 683

State v. Jarzbek

D

Although we conclude that neither a hearsay argu-

ment nor a theory of waiver provides a persuasive anal-

ogy legitimating the videotaped procedure that was

used in this case, we accept the proposition that other

compelling state interests may justify dispensing with

the constitutionally mandated requirement of physical

confrontation. The state has proffered two possible

interests as justification for an impairment of the

defendant’s constitutional confrontation rights. First,

the state contends that its interest in combating sex-

ual abuse of children and minimizing the trauma expe-

rienced by child victims when they participate in the

judicial process outweighs the interests served by con-

stitutional confrontation requirements. Second, it main-

tains that videotaping the testimony of a minor victim

outside the physical presence of the accused is neces-

sary to encourage minor victims of sex crimes to come

forward and provide accurate testimony. According to

the state, these two interests justify the adoption of

a per se rule, applicable to all prosecutions involving

sexual abuse of children, which would allow the

videotaping of the testimony of a minor victim outside

the physical presence of the defendant.

Interests similar to those asserted by the state in this

case were addressed by the United States Supreme

Court, in an analogous context, in Globe Newspaper Co.

v. Superior Court, 457 U.S. 596, 102 S. Ct. 2613, 73

L. Ed. 2d 248 (1982). There, the United States Supreme

Court declared that a state mandatory closure statute,

which required “trial judges, at trials for specified sex-

ual offenses involving a victim under the age of 18, to

exclude the press and the general public from the court-

room during the testimony of that victim,” violated the

first amendment right of the press and the general pub-

lie to access to criminal trials. Id., 598, 602; see

A-18

EL

Se CCU

204 Conn. 683 AUGUST, 1987 701

State v. Jarzbek

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555,

577, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980). Although

the court struck down the mandatory closure rule, it

held that a “trial court [can] determine on a case-by-

case basis whether closure is necessary to protect the

welfare of a minor victim.”’ Globe Newspaper Co. v.

Superior Court, supra, 609. While that case involved

the rights of the press and the public that derive from

constitutional guarantees of free speech and assembly;

U.S. const., amend. I; Conn. Const., art. I, §§ 4,5 and

14; and this case involves the confrontation rights of

criminal defendants, we find it instructive in analyz-

ing the interests asserted by the state here.

The state’s first rationale rests on the interest of the

state, acting as parens patriae, in safeguarding the wel-

fare of children. The underlying assumption is that sex-

ually abused children who testify in open court, in the

presence of their alleged abusers, suffer severe trauma

and are thereby victimized a second time by the judi-

cial system itself. See J. Parker, ‘The Rights of Child

Witnesses: Is the Court A Protector or Perpetrator?”’

17 New Eng. L. Rev. 643, 647-56 (1982); G. Melton,

“Psychological Issues in Child Victim’s Interaction with

the Legal System,” 5 Victimology 274-75 (1980); D.

Libai, “‘The Protection of the Child Victim of a Sexual

Offense in the Criminal Justice System,” 15 Wayne L.

Rev. 977, 983-84 (1969). That rationale further assumes

that children are uniquely vulnerable witnesses who

must be treated more delicately than adult witnesses

in order to protect their psychological and emotional

well-being. See L. Berliner & M. Barbieri, ‘The Testi-

mony of the Child Victim of Sexual Assault,” 40 J. Soc.

Issues 125, 128 (1984).

We acknowledge that protecting the physical and

psychological well-being of children is a compelling

state interest. New York v. Ferber, 458 U.S. 747,

756-57, 102 S. Ct. 3348, 73 L. Ed. 2d 1113 (1982); Globe

A-19

a eT

702 AUGUST, 1987 204 Conn. 683

State v. Jarzbek

Newspaper Co. v. Superior Court, supra, 607. As the

defendant accurately points out, however, it is by no

means clear that sexually abused children are harmed,

psychologically or otherwise, by the experience of tes-

tifying in the presence of their alleged abusers. To date,

there is no empirical data that unequivocally supports

the state’s sweeping generalization that minor victims

are inevitably traumatized by that experience. To the

contrary, experts in child psychology who have stud-

ied sexually abused children are divided on the issue

of whether they suffer undue trauma and further harm

in facing the accused at trial. G. Melton, supra, 274;

G. Goodman, ‘“‘The Child Witness: Conclusions and

Future Directions for Research and Legal Practice,”’

40 J. Soc. Issues 157, 167-68 (1984); D. Whitcomb, E.

Shapiro & L. Stellwagen, When the Victim is a Child:

Issues for Judges and Prosecutors, National Institute

of Justice (1985) pp. 17-18; L. Berliner & M. Barbieri,

supra. Moreover, recent studies indicate that some

minor victims actually benefit from their participation

in proceedings that give them a sense of power over

those who have violated them and afford them a long

awaited opportunity to achieve vindication. G. Melton,

‘Sexually Abused Children and the Legal System:

Some Policy Recommendations,” 13 Am. J. Family

Therapy 61, 64-65 (1985); L. Berliner & M. Barbieri,

supra, 135; C. Rogers, ‘‘Child Sexual Abuse and the

Courts: Preliminary Findings,”’ Social Work and Child

Sexual Abuse (Conte & Shore Eds. 1982) pp. 145, 150.

Just as the United States Supreme Court, in Globe

Newspaper Co. v. Superior Court, supra, 609, rejected

the generalization that sexually abused children invari-

ably suffer traumatic injury by testifying in the pres-

ence of the press and the general public, we reject the

generalization that these children will be traumatized

by testifying in the presence of the accused. Given the

lack of consensus among recognized authorities as to

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204 Conn. 683 AUGUST, 1987 703

State v. Jarzbek

the effect on a minor victim of a face-to-face confron-

tation with the accused, we conclude that the state’s

interest in protecting the well-being of children, in and

of itself, does not justify a per se rule that infringes

on a defendant’s right of confrontation.

The second rationale proffered by the state focuses

on the difficulty of persuading minor victims to testify

in sexual abuse cases and on the credibility of their tes-

timony. The state claims that allowing minor victims

to testify outside the physical presence of the accused

encourages victims to cooperate with law enforcement

authorities and, more importantly, enhances the relia-

bility of their testimony. The defendant responds that

the state’s claim regarding the enhanced reliability of

testimony <aken outside the physical presence of the

accused is too speculative to justify depriving a crimi-

nal defendant of his constitutional right of confronta-

tion on that basis.

We have decided to pursue a middle ground in order

to accommodate the competing concerns of the state

and the defendant.Taking as our point of departure the

truth-enhancing goals of the confrontation clauses, we

conclude that they should not be construed so strictly

as to preclude the state, in particular circumstances,

from establishing a compelling need to have a minor

victim of tender years testify outside the physical pres-

ence of his or her alleged sexual assaulter. We cannot

discount the possibility that such a witness might be

intimidated, or for any number of reasons inhibited,

by the presence of the accused. For example, a minor

victim may refuse to testify or may distort his or her

testimony because he or she has been threatened by

the defendant or is overwhelmed by feelings of guilt.

In such instances, affording the defendant the right of

physical confrontation would undermine the purpose

of confrontation, instead of advancing its truth-seeking

A-21

704 AUGUST, 1987 204 Conn. 683

State v. Jarzbek

goals. Compare State v. Melendez, 135 Ariz. 390, 393,

661 P.2d 654 (1982); Commonwealth v. Willis, supra,

230-31; State v. Sheppard, supra, 432.

We conclude that, in criminal prosecutions involving

the alleged sexual abuse of children of tender years,

the practice of videotaping the testimony of a minor

victim outside the physical presence of the defendant

is, in appropriate circumstances, constitutionally per-

missible. Our holding that appropriate circumstances

may warrant a departure from strict compliance with

confrontation requirements does not, however, signal

a relaxation of the underlying evidentiary requirement

that appropriate circumstances be proven to exist. We

emphatically reject the proposal of the state that, in

every case allegedly involving the sexual abuse of chil-

dren, we should presume that the credibility of a minor

victim’s testimony will be improved by excluding the

defendant from the witness room during that witness’s

testimony. There is no constitutional justification for

automatically depriving all criminal defendants of the

right of physical confrontation during the videotaping

of a minor victim’s testimony. We instead mandate a

case-by-case analysis, whereby a trial court must bal-

ance the individual defendant’s right of confrontation

against the interest of the state in obtaining reliable

testimony from the particular minor victim in question.

See Globe Newspaper Co. v. Superior Court, supra, 609

and n.25.

Under the approach we adopt today, a trial court

must determine, at an evidentiary hearing, whether the

state has demonstrated a compelling need for exclud-

ing the defendant from the witness room during the

videotaping of a minor victim’s testimony.® In order

to satisfy its burden of proving compelling need, the

* The defendant is entitled to be physically present in the courtroom during

the evidentiary hearing on compelling need.

A-22

204 Conn. 683 AUGUST, 1987 705

State v. Jarzbek

state must show that the minor victim would be so

intimidated, or otherwise inhibited, by the physical

presence of the defendant that the trustworthi :ss of

the victim’s testimony would be seriously called into

question. Furthermore, the state bears the burden of

proving such compelling need by clear and convincing

evidence. Cf. United States v. Wade, 388 U.S. 218, 240,

87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) (application

of clear and convincing standard to questions of admis-

sibility involving constitutional requirements going to

the reliability of evidence); United States v. Thevis,

supra, 631 (application of clear and convincing stan-

dard to determine whether defendant waived right of

confrontation by reason of his own misconduct).

Although the trial court may consider the well-being

of the witness as a significant factor in its analysis, the

state cannot prove need simply by demonstrating that

the victim would suffer some harm if forced to testify

in the presence of the accused. We reiterate that, in

light of the constitutional right of confrontation at stake

here, the primary focus of the trial court’s inquiry must

be on the reliability of the minor victim’s testimony,

not on the injury that the victim may suffer by testify-

ing in the presence of the accused.!°

The state maintains that, on the facts of this case,

it proved a compelling need to exclude the defendant

from the witness room during the videotaping of the

minor victim’s testimony. At the hearing on its motion

to videotape the minor victims, the state presented two

clinical psychologists, both of whom are considered

experts in the field of child sexual abuse. The first psy-

chologist, Dr. Sidney Horowitz, never examined the

1° If, after an evidentiary hearing, the trial court finds a compelling need

to exclude the defendant from the witness room during the taping of a minor

victim’s testimony, defense counsel must be afforded a full opportunity,

prior to the videotaping session, to meet privately with the victim in order

to discuss the events in question.

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706 AUGUST, 1987 204 Conn. 683

State v. Jarzbek

children in question, but testified on the basis of his

“experience with many children of similar ages.’’ He

testified, in general, as to the need to videotape the

testimony of child witnesses in sexual abuse cases, and

to do so outside the physical presence of the accused,

in order to minimize the trauma they may suffer. He

offered no opinion, however, as to whether these par-

ticular children would suffer harm or whether the relia-

bility of their testimony would be affected by the

presence of the defendant in the witness room. The sec-

ond expert called by the state, Dr. David Mantell, had

interviewed each of the children individually. He tes-

tified that “‘videotaping the children’s testimony would

be far superior to testifying in court.”” Dr. Mantel] fur-

ther testified that “[w]ith respect to the children in

question . . . for either of them to testify in person

before the accused would be traumatizing’’ and that

it would “‘be easier for the children to tell their ver-

sion of the events . . . if they are not facing their

ee ae es

We express no opinion as to whether the evidence

presently on the record is sufficient to satisfy the state’s

burden of proving, by clear and convincing evidence,

a compelling need to videotape the testimony of the

minor victim outside the physical presence of the

defendant. It is not the role of this court to make such

a factual determination. It is in the sole province of the

trier of fact to evaluate expert testimony, to assess its

credibility, and to assign it a proper weight. Johnson

v. Fuller, 190 Conn. 552, 556, 461 A.2d 988 (1983);

State v. Gordon, 185 Conn. 402, 409, 441 A.2d 119

(1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71

L. Ed. 2d 848 (1982); State v. Perez, 182 Conn. 603,

610, 438 A.2d 1149 (1981). In the present circum-

stances, the trial court must determine what of the

expert testimony it should reject or accept. Gorra

Realty, Inc. v. Jetmore, 200 Conn. 151, 161, 510 A.2d

A-24

204 Conn. 683 AUGUST, 1987 707

State v. Jarzbek

440 (1986). Since this is a case of first impression and

since the governing standard is one that we have not

previously articulated, the trial court is free to consider

any additional evidence that the parties may want to

present on the issue of compelling need.

In summary, we hold that, in criminal prosecutions

involving the alleged sexual abuse of children of ten-

der years, videotaping the testimony of a minor vic-

tim outside the physical presence of the defendant is

a constitutionally permissible practice if, and only if,

the state proves by clear and convincing evidence a

compelling need to exclude the defendant from the wit-

ness room during the victim’s testimony. This holding

rests not only on the mandates of the federal constitu-

tion, but also on independent and adequate state

grounds. U.S. Const., amends. VI, XiV; Conn. Const.,

art. I, § 8; see Michigan v. Long, 463 U.S. 1032, 1041,

103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983).

As the dissent acknowledges, this court has, on other

occasions, expressly relied on a provision of the state

constitution as an independent and adequate state

ground in support of a decision, even where the lan-

guage of the state constitutional provision essentially

paralleled the language of the relevant federal constitu-

tional provision. State v. Simms, 201 Conn. 395, 405

n.8, 518 A.2d 35 (1986); State v. Burge, 195 Conn. 232,

246 n.15, 487 A.2d 532 (1985); State v. Cohane, 193

Conn. 474, 498-99 n.19, 479 A.2d 763, cert. denied,

469 U.S. 990, 105 S. Ct. 397, 83 L. Ed. 2d 331 (1984);

State v. Ferrell, 191 Conn. 37, 45 n.12, 463 A.2d 573

(1983). These precedents are rooted in a view of fed-

eralism that has received widespread recognition. In

Michigan v. Long, supra, 1040, the Supreme Court of

the United States, noting its respect for the independ-

ence of state courts, urged us to indicate expressly

when a state decision was based on an independent and

adequate state constitutional ground. Such an

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708 AUGUST, 1987 204 Conn. 683

State v. Jarzbek

approach, the court stated, would “provide state judges

with a clearer opportunity to develop state jurispru-

dence unimpeded by federal interference. ‘It is fun-

damental that state courts be left free and unfettered

by us in interpreting their state constitutions. . . .

[Minnesota v.] National Tea Co., [309 U.S. 551, 557,

60 S. Ct. 676, 84 L. Ed. 920] (1940).’ ” Id., 1041. Schol-

arly and judicial commentators alike have recently

reemphasized that state constitutions are an indepen-

dent source of civil rights and liberties. See, e.g.,

Developments in State Constitutional Law (ed. by B.D.

McGraw) (1985).

We therefore remand this case to the trial court for

an evidentiary hearing to determine whether there was

a compelling need to videotape the testimony of the

minor victim, T, outside the physical presence of the

defendant. See State v. Gonzales, 186 Conn. 426,

435-36, 441 A.2d 852 (1982). If the court concludes that

the state has not met its burden of proving such a need

by clear and convincing evidence, the defendant is

entitled to a new trial from which the videotaped tes-

timony of T must be excluded. If the court concludes

that the state has met its burden, the defendant’s con-

viction must stand, subject to any further appeal by -

the defendant to this court concerning the validity of

the trial court’s ruling on this issue.

The case is remanded for further proceedings in

accordance with this opinion.

In this opinion HEALEY and Guass, Js., concurred.

SHEA, J., with whom, CALLAHAN, J., joins, dissent-

ing. I agree with the majority that this case is largely

governed by the decision of the United States Supreme

Court in Globe Newspaper Co. v. Superior Court, 457

U.S. 596, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982),

which invalidated a Massachusetts statute mandating

A-26

204 Conn. 683 AUGUST, 1987 709

State v. Jarzbek

closure of the courtroom during the trial testimony of

minor victims of sexual offenses as violative of the right

of the press and the public to attend a criminal trial.

Globe Newspaper Co. recognized, however, that the

interest of the state in “safeguarding the physical and

psychological well-being of a minor—is a compelling

one.”’ Id., 607. ‘That interest could be served just as

well by requiring the trial court to determine on a case-

by-case basis whether the State’s legitimate concern

for the well-being of the minor victim necessitates clo-

sure.’ Id., 609. The determinative issue is “whether

closure is necessary to protect the welfare of a minor

victim. Among the factors to be weighed are the minor

victim’s age, psychological maturity and understand-

ing, the nature of the crime, the desires of the victim,

and the interests of parents and relatives.”’ Id., 608.

The trial court in my judgment followed the criteria

set forth in Globe Newspaper Co. in deciding that the

defendant’s five-year-old daughter and four-year-old

son should be permitted to testify on videotape outside

the courtroom and without his visible presence.

Although the videotaping order satisfied the

specified in General Statutes § 54-86g, which became

effective on October 1, 1985, almost a month after com-

pletion of the trial, the court did not rely upon the gen-

eral presumption of the statute that all sexual abuse

victims less than thirteen years old are likely to be

harmed if required to testify in a courtroom. The court

heard the testimony of two clinical psychologists with

expertise in child abuse cases concerning the “high

probability that the child would be traumatized”’ if

required to testify in the “threatening environment of

the formal courtroom setting.” One of them had exam-

ined the children and had concluded that “for either

of them to testify in person before the accused would

be traumatizing.’’ The court expressly referred to this

testimony in the memorandum granting the state’s

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710 AUGUST, 1987 204 Conn. 683

State v. Jarzbek

motion for videotaping. Thus, the references in the

majority opinion to the ‘“‘generalization that sexually

abused children invariably suffer traumatic injury by

testifying in the presence of the press and the general

public” and to “‘a per se rule” do not apply to the case

before us.

The majority opinion does not challenge the suffi--

ciency of the evidence before the court to support the

conclusion that the ‘‘psychological well-being”’ of the

five-year-old child whose testimony was admitted at

trial would be seriously harmed by the experience of

testifying in a courtroom “eye-ball to eye-ball” with her

father concerning the incidents when he abused her sex-

ually. Nor is it maintained that the criteria for the

“case-by-case” approach established by Globe Newspa-

per Co. were not satisfied. Instead, the opinion engrafts

upon the Globe Newspaper Co. standard for balancing

the likelihood of psychological harm to the child against

the primacy of first amendment values a further

requirement, that the state demonstra‘< by “clear and

convincing evidence”’ that ‘‘the minor victim would be

so intimidated, or otherwise inhibited, by the physical

presence of the defendant that the trustworthiness of

the victim’s testimony would be seriously called into

question.” (Emphasis added.) Furthermore, this

unprecedented standard for determining whether the

testimony of a child sexual abuse victim may be video-

taped is made the “‘primary focus of the trial court's

inquiry,”’ thus relegating to secondary status the risk

of psychological harm to the child, which Globe News-

paper Co. singles out as the relevant consideration

where first amendment infringements are involved.

The majority opinion offers little useful guidance con-

cerning the showing to be made in the trial court neces-

sary to establish that the “trustworthiness” of a child

victim’s testimony would be suspect unless videotaped.

Presumably the determination is to be made ordinar-

A-28

204 Conn. 683 AUGUST, 1987 711

State v. Jarzbek

ily in advance of the trial so that the proceeding will

not be interrupted and sufficient time will be available

to arrange for videotaping, if it is ordered. Without

some actual experience where the child has been una-

ble to testify adequately in a courtroom setting, how-

ever, it is not readly apparent that a “clear and

convincing’ demonstration complying with the

majority’s novel standard can be made, assuming the

usual conflict between the opinions of experts produced

by the state and those of the defendant. As a practical

matter, I fear that many child victims will be obliged

to testify without the benefit of the safeguards designed

by § 54-86g to mollify the impact of the experience of

reliving the crime itself that their testimony entails and

thus to protect their mental health. However serious

the risk of harm to the child, under the majority view,

unless the reliability of the testimony would be substan-

tially impaired by testifying before the defendant in the

normal courtroom setting, the measures intended by

the legislature to lessen the psychological impact of the

testimonial experience upon the child cannot be utilized.

I] am not convinced that this result is required by the

right of confrontation guaranteed to a defendant by

the sixth amendment of our federal constitution. No

impairment of the defendant’s right to cross-examine

can be found in the procedures used by the court to

videotape the testimony of the victim in this case. I dis-

agree with the majority that “the right of physical con-

frontation is an equally fundamental component” of this

sixth amendment right and that physical confrontation

“enhances” the truth-seeking process where the wit-

ness is a child sexual abuse victim and the defendant

is a family member, as in this case. In such instances,

““eye-ball to eye-ball”’ presence of the defendant is likely

to result not only in the traumatization of the child but

” also in the repression or distortion of his testimony.

The legislative judgment embodied in § 54-86g, author-

A-29

eet ennai

712 AUGUST, 1987 204 Conn. 683

State v. Jarzbek

izing videotaping in such cases, reflects a more realis-

tic view of human nature than that of the majority.

We shall never know whether the majority’s reliance

in this case upon the federal constitution is well founded

or otherwise, because the majority opinion has pre-

cluded a more authoritative determination of that ques-

tion by exercising the option given to state courts for

avoiding review of their decisions by the United States

Supreme Court in accordance with Michigan v. Long,

463 U.S. 1032, 1041, 105 S. Ct. 3469, 77 L. Ed. 2d 1201

(1983). The express reliance upon the parallel right of

confrontation contained in our state constitution as an

independent ground for the decision apparently insu-

lates from further review the conclusion of the majority

that the federal right demands a “trustworthiness”

determination as a prerequisite to videotaping a child

sexual abuse victim’s testimony.

Although I have blinked at the practice in the past,

I believe that it ill serves the development of the law

in this country thus to remove decisions of state courts

upon federal constitutional provisions from the scru-

tiny of our highest court. Where a state court rests its

decision upon the federal constitution as an alternative

to a state constitutional ground, that declaration of fed-

eral law should be subject to challenge in order to clarify

whether a state constitutional amendment alone would

be effective. Where there is no substantial textual

difference between the federal and state constitutional

provision, as is true of our parallel right of confronta-

tion clauses, it would be far more appropriate, in the

absence of applicable state precedent, to reserve con-

sideration of the state constitutional provision until

after a definitive resolution of the federal issues has

been obtained. See State v. Opperman, 247 N.W.2d 673,

674-75 (S.D. 1976). The determination can then be

made, if our assumptions regarding the federal coun-

terpart prove incorrect, of whether we should adopt

A-30

arena Un maaan ica aa ai ct

204 Conn. 683 AUGUST, 1987 713

State v. Jarzbek

a different interpretation of the similar state constitu-

tional provision. By prematurely resorting to our state

constitution as an independent ground we create an

unnecessary ambiguity and also deprive ourselves of

the light that further review of our decision would shed

upon the federal precedent we have largely relied upon

in reaching our conclusions in respect to both the fed-

eral and state constitutional grounds advanced in sup-

port thereof.

The majority perceive in our state constitutional pro-

vision a greater emphasis upon the necessity of the visi-

ble presence of the defendant during the testimony of

a witness than the federal constitutional right of con-

frontation may warrant. We have previously read these

parallel provisions to afford the same protection to a

criminal defendant. Although there is no significant tex-

tual difference between them, this court unquestiona-

bly has the power to construe article first, § 8, of our

state constitution to provide greater protection to a

defendant than required by the sixth amendment of the

federal constitution. For the reasons given, however,

I would defer the resolution of that issue until a more

authoritative determination of the scope of federal pro-

tection can be obtained than this court can furnish.

Nevertheless, since the majority has chosen to eschew

the edification upon the federal issue that our highest

court might provide, I am constrained to express my

present view that our state constitutional right of con-

frontation does not require, any more than its federal

counterpart, that the state’s interest in protecting chil-

dren from pyschological harm be relegated to the sta-

tus of a secondary consideration in deciding whether

videotaping without the visible presence of a defend-

ant is appropriate. That interest, where the court prop-

erly finds that a child sexual assault victim is likely to

be seriously harmed by testifying before the defend-

ant in a courtroom, is sufficient to outweigh the defend-

A-31

714 AUGUST, 1987

ant’s traditional right to be present in person during

the testimony of a witness so long as his right of cross-

examination remains unhampered, as the procedures

followed by the trial court in this case have insured.

Accordingly, I would affirm the judgment.

No. 12868

STATE. OF CONNECTICUT : SUPREME COURT

V. : STATE OF

CONNECTICUT

CHARLES JARZREK $ SEPTEMBER 23,

1987

ORDER

THE MOTION OF THE STATE OF CONNEC--

TICUT FILED AUGUST 21, 1987 TO REARGUE

HAVING BEEN PRESENTED TO THE COURT, IT

IS HEREBY ORDERED DENIED.

BY THE COURT,

/S/ CAROLYN CUNBO ZIOGOS

Assistant Clerk-Appellate

NOTICE SENT: 9-23-87

M. Hatcher Norris

David F. Cosham

Maureen Platt, A.S.A.

John M. Massameno, A.S.A.

Hon. Robert Hale

Reporter of Judicial Decisions

Clerk, Superior Court of Middlesex

4

A-33