Petition for Writ of Certiorari — Texas v. Long

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DEC 16 1997

NO { QOSEPH F. SPANTIOL. JF

° = | e: CLERe.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

THE STATE OF TEXAS,

Petitioner

vs.

JAMES EDWARD LONG,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE

TEXAS COURT OF CRIMINAL APPEALS

JOHN C. VANCE

Criminal District Attorney

Dallas County, Texas

KATHI ALYCE DREW

Assistant District Attorney

(Counsel of Record)

ANNE B. WETHERHOLT

Assistant District Attorney

(Counsel for Petitioner)

600 Commerce Street

Dallas, Texas 75202-4606

(214) 653-7910 or

(214) 749-8910

QUESTIONS PRESENTED

- HAS A CRIMINAL DEFENDANT'S SIXTH

AMENDMENT RIGHT TO CONFRONTATION BEEN

VIOLATED IN HIS TRIAL FOR SEXUAL ABUSE

OF A CHILD BY ADMISSION INTO EVIDENCE

OF THE CHILD'S PRIOR VIDEOTAPED STATE-

MENT PURSUANT TO A STATE STATUTE AND

EVIDENTIARY RULE WHICH ALLOWS SUCH

STATEMENT TO BE USED AS NON-HEARSAY

SUBSTANTIVE EVIDENCE IF THE CHILD IS

AVAILABLE TO TESTIFY, WHERE THE CHILD

DID, IN FACT, TESTIFY AND WAS CROSS-

EXAMINED AT TRIAL?

- HAS A CRIMINAL DEFENDANT'S FOURTEENTH

AMENDMENT RIGHT TO DUE PROCESS OF LAW

BEEN VIOLATED BY A STATUTE WHICH PER-

MITS THE ADMISSION AT TRIAL OF A

VIDEOTAPED STATEMENT AS NON-HEARSAY

SUBSTANTIVE EVIDENCE AND THEN ALLOWS

THE AVAILABLE CHILD COMPLAINANT TO BE

QUESTIONS PRESENTED, CONT.

CALLED TO THE WITNESS STAND FOR PUR-

POSES OF CROSS-EXAMINATION WHERE THE

PROSECUTION DID LATER CALL HER TO

TESTIFY AND SHE WAS CROSS-EXAMINED?

- MAY A STATE COURT OF LAST RESORT, BY

MERELY RECITING THAT A DECISION RESTS

ON AN INDEPENDENT STATE GROUND, DEFEAT

THIS COURT'S CERTIORARI JURISDICTION

WHEN A FAIR READING OF THE STATE

COURT'S OPINION REVEALS THAT THE

OPINION RESTS ON FEDERAL GROUNDS AND

ON STATE GROUNDS SO CLOSELY INTERWOVEN

WITH FEDERAL GROUNDS AS TO BE INSEPAR-

ABLE SO AS TO SHOW THE-OPINION DOES

NOT REST ON BONA FIDE SEPARATE, ADE-

QUATE, AND INDEPENDENT STATE GROUND?

iii

LIST OF PARTIES

JAMES EDWARD LONG,

Appellant below and Respondent herein

THE STATE OF TEXAS,

Appellee below and Petitioner herein

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED... ccccccccccccees i

LIST OF PARTIES. cccccccccccsvccececes iii

SABLE OF CONTENTS .cccccvcccceccccececs iv

LEST OF AUTHORITIES. ccccccccccccesece vi

OPERION BRIA s cccccciscccesccccssecee 2

JURISDICTIOM coccccecscccsccesceccsecees 2

CONSTITUTIONAL AND

STATUTORY PROVISIONS... .ccccccces 3

STATEMENT OF THE CASE... ccccccccccces 6

REASONS FOR GRANTING THE WRIT........ 9

I. The Court of Criminal Appeals

Has Decided a Federal Question

Involving a Defendant's Right

of Confrontation under the

Sixth Amendment a) in Conflict

with Applicable Decisions of

this Court b) in Conflict with

Decisions of Courts of Last

Resort from other Jurisdictions

and c) in Conflict with Deci-

sions from Various Federal

Circuit Courts of Appeal...... 9

Il.

Iil.

TABLE OF CONTENTS, CONT.

The Court of Criminal Appeals'

Decision that Art. 38.071 § 2

Violates the Due Process Clause

of the Fourteenth Amendment by

Placing a Defendant in a

Criminal Trial in the "Unten-

able Position" of Calling the

Complaining Witness to the

Stand or Foregoing his Right to

Cross-examination is a) Unwar-

ranted, as Defendant Actually

Cross-Examined the Child Fol-

lowing the Action of the State

Calling the Child as a Rebuttal

Witness b) Decides an Import-

ant Question of Federal Law

which Has Not Been, but Should

Be, Settled by this Court and

c) Conflicts with a Decision

of the Georgia Supreme Court...

Certiorari is Proper, as this

Court is the Final Arbiter of

Its Own Jurisdiction.....cececees

CONCLUSION... cc cccccccccvccecs cocccee

APPENDIX. ..cccccccccccces co cccccccces

LIST OF APPENDIX... cccccccccccscvcces

LIST OF AUTHORITIES

CASES : Page

Allen v. State,

700 S.W.2d 924 (Tex. Crim. App.

1968) wccccncwoctesescecccescceece 43

Barber v. Page,

390 U.S. 719, 88 S.Ct. 1318,

20 L.Ed.2d 255 (1968) ccccccccces 18

Bass v. State,

527 S.W.2d 556 (Tex. Crim. App.

1975) ccccccesseseeesecseseesececes 43

Beid v. State,

692 S.W.2d 65 (Tex. Crim. App.

1985) -cccccccccccccesacescesecces 45

Betts v. Brady,

316 U.S. 455, 62 S.Ct. 1252,

86 L.Ed. 26 U29o Cemmes ee cccceocces 35

California v. Green,

399 U.S. 149, 90 S.Ct. 1930,

26 L.Ed.2d 489 (1970)..... | Be ab F

toot Drae

adcal

Carver v. State,

510 S.W.2d 349 (Tex. Crim. App.

1976) ccvccccesesseeesesesseesesss 43

Chambers v. Mississippi,

410 U.S. 284, 93 S.Ct. 1038,

35 L.Ed.2d 295 (1973) -ccccccccces 20

vii

LIST OF AUTHORITIES, CONT.

Chicago Teachers Union v. Hudson,

U.S. , 106 S.Ct. ,

SP WeOO. 28 252 CIGEE) cccccccccecce 32

City of Mesquite v.

Aladdins Castle, Inc.,

455 U.S. 283, 102 §.Ct. 1070,

Ze meee Uae CEpea 6 ceecocceses 32

Cogburn v. State,

732 S.W.2d 807 (Ark. 1987)....... 25

Commonwealth v. Willis,

716 S.W.2d 224 (Ky. 1986)........ 26

Delaware v. Fensterer,

474 U.S. , 106 §.Ct. 292,

i Mca Oe CURE iccécscecesoesc 10

Estes v. State,

283 S.W.2d 52 (Tex. Crim. App.

TPaPPocceeceeeeseseeseceeseccesee 45

Fontenot v. State,

500 S.W.2d 843 (Tex. Crim. App.

Tes acc eeeeeceesecesecseeseesesee 44

Garcia v. State,

210 S.W.2d 574 (Tex. Crim. App.

TROOP ccececcceesececsececcesecees 44

Ex parte Grothe,

687 S.W.2d 736 (Tex. Crim. App.

19BR) wccccccccccccccccccccsseccecs 45

Harris v. State,

642 S.W.2d 471 (Tex. Crim. App.

b+} PSA rrr rrr ererererrrrrrie 43

viii

LIST OF AUTHORITIES, CONT.

Hays v. State,

164 S.W. 841 (Tex. Crim. App.

191G) ccccccccccccccccsccccssccece 45

International Longshoremen's Assn.

v. Davis,

476 U.S. , 106 S.Ct. ;

90 L.Ed.2d 389 (1980).......200.-

Johnson v. State,

379 S.W.2d 329 (Tex. Crim. App.

TGR) ccccccecceeecesecesecocceees 44

Johnson v. State,

732 S.W.2d 817 (Ark. 198/7)..-.e-. 25

Joll: State,

». 871-84 (Tex. Crim. App. -

wov. 4, 1987) (not yet

published) ....cceccccccccccccesees 31

Jones v. State,

445 N.E.2d 98 (Ind. 1983)...--e-. 25

Kemp r v. State,

138 S.W. 1025 (Tex. Crim. App.

eS 43

Ke: y v. Stincer,

+82 U.S. | 107 SvCET 2658,

36 L.Ed.2d 631 (1987)...seeee 16,17,

34,42,

Lee v. Illinois,

476 U.S. , 106 S.Ct. 2056,

90 L.Ed.2d 5174 (1986)... .ccccccees 20

BEST AVAILABLE COPY

LIST OF AUTHORITIES, CONT.

Long v. State.

No. 867-85 (Tex. Crim.

App. July 1, 1987)........ 2,8,9,10,

2, tOcaee

29,30,31,

33,45,46,

Long v. State,

694 S.W.2d 185 (Tex. App. --

DEE EOP bsbcceoecceeceoeeseosos 8

Ludwig v. State,

298 S.W.2d 166 (Tex. Crim. App.

PFPA ccccscccccccccceesesesecese 44

McQuire v. State,

706 S.W.2d 360 (Ark. 1986)....... 25

Mattox v. United States,

136 Bebe 227, 12 Bele 332i:

3B beoBG@e SOD CIBSS) cocccccceccocs 20

Mellinger v. City of Houston,

68 Tex. 37, 3 S.W. 249 (1887)....33

Michigan v. Long,

463 U.S. 1032, 103 S.Ct. 3469,

Td bec BOcZS T2010 (C1GSS) cccccces 37,39

Newborn v. State,

292 S.W. 247 (Tex. Crim. App.

TOZ TJ ccccccccccsccccccccceccceecs 44

Ohio v. Johnson,

467 U.S. 493, 104 S.Ct. 2536,

ST beGcde S29 (IGER) ccccccsccecce 39

LIST OF AUTHORITIES, CONT.

Ohio v. Roberts,

S46 0.3. 356, 300 &:,CtC. 2531,

GF tice Ser CIRO) 6 6a cweek ss oe -20

Oregon v. Hass,

420 U.S. 714, 935 S.Ct. etd,

43 L.Ed.2d 570 (1975) .cccccaes 40,41

Pennsylvania v. Ritchie,

480 U.S. , OS S.Ct. 1318,

20 LiBdidd 235 CUFGS) 6 vec ccvececs 18

Pointer v. Texas,

360 U.S. 400, 83 S.Gt. 1065,

13 Le Bb c4E 929 CAPSS) cc cacaweseics 40

Raley v. State,

548 S.W.2d 33 (Tex. Crim. App.

197 7) 0600 46 4s RS heard ee eee nbn 43

Sosebee v. State,

357 8.8.24 363 (6e« TS9O7T} iccseecs 35

South Dakota v. Neville,

4593: U.S. 3553, t03°S.6C. F916,

76 Wen BGs 26 (48 CUSGS) oc cs vescs 41,47

Spain v. State,

585 S.W.2d 705 (Tex. Crim. App.

i Fd SPOS PER TREE. CECE CET CTT ee 43

State v. Cooper,

353 S.E.2d 451 (S.C. 1987) .....6.- 26

State v. Coy,

397 N.W.2d 730 (Lowa 1986),

jurisdiction noted sub nom

Coy v. lowa, 55 U.S. 3871

(U.S. June 26, 1987)

(NO. 86-6757) -cccccccccsccsvssees 24

‘(sn is es

+ a

LIST OF AUTHORITIES, CONT.

State v. Jarzbek,

S27 Bete $249 (Conn. 1967) .cccces 26

State v. Johnson,

123 Pcee 4109 (Ren. 1966) és ee ee2% 26

State v. Myatt,

On? FeaG BSG (Rahs (1965) vcccccsvs 26

State v. Rogers,

Gz Feae 6 (Mont « 1964). cccc ec csun 26

State v. Sheppard,

O64 AsdZG 1330 (H.J. 1986) ccsrcsers 26

State v. Twist,

an Gase taoe (MO. 19ST) danas casas 26

Ulster County Court v. Allen,

442 U.S. 140, 99 S.Ct. 2213,

OO Le O eke FEF LUST I) sciawineev vs 34

United States v. Guadian-Salazar,

O24 F.26 346 COCK Cit. 1987). «2+ 28

United States v. Havens,

446 U.S. 620, 100 $.Ct. 1912,

OF Sig eeee See CESS) ccc ceseeaper 24

United States v. Owens,

789 F.2d 750 (9th Cir.

1986), cert. granted,

SS U.Sikiews 3879" (U.S. Feb. 23,

1987) (NO. 86-877) .ccccccccsecees 28

United States v. Riley,

657 F.2d 1377 (8th Cir. 1981),

cert. denied, 459 U.S. 1111

Gb bs PPP PVC ree ee rere eT ere 27

xii

LIST OF AUTHORITIES, CONT.

United States v. Tunnell,

667 F.izeé tiGe COCe Cire: 1982)....27

Village of Hoffman Estates, et al v.

Flipside Hoffman Estates, Inc.,

455 U.S. 489, 102 S.CT. 1186,

oer ie ee eee ee eee 34

Walding v. State,

120 S.W.2d 1052 Sues Crim. App.

TOI) ccc cvescnsevcacescveteouesses 45

Whitehead v. State,

450 S.W.2d 72 (Tex. Crim. App.

kee eee a era ee ere 43

CONSTITUTIONS:

U.S. CONST. amend =-—Viwe res cain cc ce ccc ces 3

Guba Sees OE. Bev, 8: Feakeeeavnn 3,33

Sens ees ere, tS tOy sées 4,42,44,45,47

5s es es Oe Pa ks oe eee 4,33,46,47

STATUTES:

rs GaN ree oe > hoe yp Pare ee ee eee ree eee ee ene 3

ns Spe Ps BS £699" 1Gi cc ek seen ees 36

IOWA CODE § 910A.3(1) (Supp. 1985)..... 24

TEX. CODE CRIM. PROC. ANN.

OP FOG F1 EF ta vecnscrecsessecesecs 4

z xiii

: LIST OF AUTHORITIES, CONT.

i TEX. CODE CRIM. PROC. ANN.

Srt. 38.071 $ Zossscees 2,4,16,18,19

é 21,33,35,46

; TEX. PENAL CODE ANN. §$ 21.04. -cccccscens 6

)

5 TEX. PENAL CODE ANN. § 22.011. cesccccces 6

; ame Soe CODe ANN, $ 22.021 a ceeseusies 6

RULES :

g FED. R. EVID. 803(5)..ccccccccccccccece 28

Wiese Me Ris EMU se 1SCE) cccccncceseces 27

é TEX. R. CRIM. EVID. 801(e)(1)(D)..... Feit

OTHER AUTHORITIES:

mame a

Libai, The Protection of the

Child Victim of a Sexual Offense

in the Criminal Justice System,

15 Wayne L.Rev., 97/7 (1969)...... 21

Parker, The Rights of Child Witness:

Is the Court a Protector or

Perpetrator?, 1/ New Eng.

aT CPEs cc ceentecceces 21

Note: Testimony of Child Victims,

96 mary. L.Rev. 806 (1985)...ece- 21

ae Pe

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

THE STATE OF TEXAS,

Petitioner

vs.

JAMES EDWARD LONG,

—

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE

TEXAS COURT OF CRIMINAL APPEALS

Petitioner respectfully requests

that a writ of certiorari issue to review

the judgment and opinion of the Court of

Criminal Appeals of the State of Texas

entered in this proceeding on July 1,

1987, for which the State's motion for

rehearing was denied on October 28, 1987.

For clarity, reference to petitioner is

by "State" and reference to respondent is

by "Defendant" or "Long."

OPINION BELOW

The opinion of the Texas Court of

Criminal Appeals, not yet reported,

appears in the Appendix as Long v. State,

No. 867-85 (Tex. Crim. App. June 7,

1987). The Appendix includes’ the

majority opinion on the State's petition

for discretionary review to the Texas

Court of Criminal Appeals as well as the

concurring and dissenting opinions there-

to. No opinion was issued on denial of

the State's motion for rehearing on

October 28, 1987. A copy of that order

appears in the Appendix.

JURISDICTION

The opinion of the Court of

Criminal Appeals holding TEX. CODE CRIM.

PROC. ANN. art. 38.071 § 2 unconstitu-

tional was entered on Suis 1, 1987. On

July 15, 1987, the State timely filed a

motion for rehearing. That motion was

overruled, without further opinion, on

October 28, 1987.! This Court's juris-

diction is invoked under 28 U.S.C. §

129/(3).

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. CONST. amend. VI, in relevant

part:

In all criminal prosecutions,

the accused shall enjoy the right

‘ to be confronted with the

witness against him.

woe wuemene. Oend. ALIV, § 1, in

relevant part:

No State shall .. . deprive any

person of life, liberty, or

property, without due process of

law.

lAn earlier motion for rehearing filed on

July 10, 1987, by the Texas State's

Prosecuting Attorney's Office, was also

overruled, without further opinion, on

October 28, 1987. A copy of that order

appears in the Appendix.

TEX. CONST. Art. I § 10

In all criminal prosecutions the

accused . . . shall be confronted

by the witnesses against him

TEX. CONST. Art. I § 19:

No citizen of this State shall

be deprived of life, liberty,

property, . . . except by the due

course of the law of the land.

TEX. CODE CRIM. PROC. ANN. Art. 38.071 §

1 and § 2 Testimony of Child Who is

Victim of Offense (Prior

to Amendment) 2

Sec. 1. This article applies

only to a proceeding in the prose-

cution of an offense, including but

not limited to an offense under

Chapter 21, Penal Code, as amended,

or Section 43.25, Penal Code, as

amended, alleged to have been

committed against a child 12 years

of age or younger, and applies only

to the statements or testimony of

that child.

Sec. 2 (a) The recording of an

oral statement of the child made

before the proceeding begins is

admissible into evidence if:

(1) no attorney for either

party was present when the

statement was made;

2Art. 38.071 § 2 was amended by Acts 1987,

70th Leg., 2nd C.S., ch. 55, $§ 1, eff.

Oct. 20, 1987, see infra at p. 30. The

amended act appears in the Appendix.

App., at 178-180.

(2) the recording is both visual

and aural and is recorded on film

or videotape or by other electronic

means;

(3) the recording equipment was

capable of making an accurate

recording, the operator of the

equipment was competent, and the

recording, is accurate and has not

been altered;

(4) the statement was not made

in response to questioning

calculated to lead the child to

make a particular statement;

(5) every voice on the recording

is identified;

(6) the person conducting the

interview of the child in the

recording is present at_- the

proceeding and available to testify

or be cross-examined by either

party;

(7) the defendant or the

attorney for the defendant is

afforded an opportunity to view the

recording before it is offered into

evidence; and

(8) the child is available to

testify.

(b) If the electronic recording

of the oral statement of a child is

admitted into evidence under this

section, either party may call the

child-to testNy, and the opposing

party may cross-examine the child.

TEX. R. CRIM. EVID. 801(e) (1) (D)

(e) Statements which are not hear-

say. A statement is not hearsay if:

(1) Prior statement by witness.

The declarant testifies at the

trial or hearing and is subject

to cross-examination concerning

the statement, and the statement

is .. . (D) taken and offered

in accordance with Article 38.071

of the Texas Code of Criminal

Procedure.

STATEMENT OF THE CASE

James Edward Long was convicted of

the felony offense of sexual abuse of a

child under TEX. PENAL CODE ANN. § 21.043

and sentenced to 20 years imprisonment

plus a $10,000 fine. The facts of the

case are not disputed; the issues concern

the constitutionality of admitting a

videotape.

In the jury's presence, the State

introduced a videotape recording of an

interview of the twelve-year-old child

complainant by a therapist associated

with the Dallas Rape Crisis Center. On

the tape, the child, uging anatomically

3The current appicable penal provisions

are TEX. PENAL CODE § 22.011 and “°§

22.2 t «

correct dolls and correct language,

detailea a number of incidents of sexual

abuse which began when she was 5 1/2 and

continued until she was approximately 9

years old.

Prior to the admission of the

videotape at trial, defendant objected,

in pertinent part, that the tape denied

him his constitutional rights of confron-

tation and due process of law and that

the statute permitting the introduction

of the videotape was unconstitutional.

These objections were overruled and the

videotape was played for the jury.

The State thereafter presented the

testimony of several witnesses, then

rested its case in chief. Defendant then

testified in his own behalf, denying the

charge of abuse. In rebuttal, the State

called the complaining witness who

recounted the same testimony previously

brought before the jury by means of the

videotape. Appellant's attorney was

allowed full opportunity to cross-examine

the child and did, in fact, cross-examine

the child.

On direct appeal, defendant reiter-

ated his constitutional challenges. The

Court of Appeals sustained these chal-

lenges and held that the videotaped tes-

timony violated defendant's right to

confrontation. Long v. State, 694 S.W.2d

185 (Tex. App. -- Dallas 1985).

The State filed a petition for dis-

cretionary review to the Texas Court of

Criminal Appeals. That court granted

review and, in a written opinion,

affirmed the judgment of the intermediate

appellate court. Long v. State, No.

867-85 (Tex. Crim. App. July 1, 1987).

Specifically, the Court held that the

statute, both facially and as applied to

-——?

defendant, was an unconstitutional depri-

vation of the right of confrontation

under both the United States and Texas

Constitutions. Additionally, the Court

held that the statute, both facially and

as applied to defendant, was an uncon-

stitutional deprivation of due process of

law under the United States Constitution

and due course of law under the Texas

Constitution.

REASONS FOR GRANTING THE WRIT

THE COURT OF CRIMINAL APPEALS

HAS DECIDED A FEDERAL QUES-

TION INVOLVING A DEFENDANT'S

RIGHT OF CONFRONTATION UNDER

THE SIXTH AMENDMENT A) IN

CONFLICT WITH APPLICABLE

DECISIONS OF THIS COURT B) IN

CONFLICT WITH DECISIONS OF

COURTS OF LAST RESORT FROM

OTHER JURISDICTIONS AND C) IN

CONFLICT WITH DECISIONS FROM

This case presents issues raised,

but not resolved, in California v. Green,

399 U.S. 149, 90 S.Ct. 1930, 26 2.80.26

489 (1970). These specific issues may be

phrased as follows:

1) does a prior out-of-court video-

taped statement which is not, at

the time it's made, subject to con-

temporaneous cross-examination or

other safeguards of testimony at

trial and which is admitted at

trial as non-hearsay substantive

evidence under a state statute and

evidentiary rule, violate a

defendant's right to confrontation

and

2) is the adequacy of a later

Opportunity to cross-examine the

declarant at trial about the state-

ment sufficient to satisfy a

defendant's right to confronta-

tion?

See Delaware v. Fensterer, 474 U.S. ‘

106 $.Ct. 292,295-296, 88 L.Ed.2d 15

(1985) wherein these questions were more

artfully framed. The Court of Criminal

Appeals' decision in Long is based

ge eee re OO ee ee PS

iiuaniael

largely on the erroneous premise that the

right of confrontation mandates face-to-

face, contemporaneous cross-examination.

In attempting to resolve the issues

presented and in reaching the holding

with respect to confrontation, the Court

of Criminal Appeals misconstrued

Celifornia vv. Green, &@ case whieh

examined one of the hearsay exceptions

vis-a-vis the confrontation clause. The

case concerned the constitutionality of a

state rule of evidence allowing for the

admission of a prior inconsistent state-

ment of a witness as substantive evidence

where the witness was available to tes-

tify at trial. In California v. Green,

the witness, one Porter, had testified at

a preliminary hearing, at which time he

made a prior inconsistent statement. This

Court noted that the prior statement

would have been admissible even if the

witness had died or had been otherwise

unavailable at trial, because the witness

had been examined at the preliminary

hearing where the defendant was repre-

sented by counsel and where the oath and

opportunity to cross-examine were also

present. While it was acknowledged that

the statement may have been made under

circumstances subject to none of the

traditional protections of the confronta-

tion clause, it was decided that "if the

declarant is present and testifying at

trial, the out-of-court statement for all

practical purposes regains most of the

lost protection." 90 S.Ct. at 1935.4

In addition, California v. Green

clearly rejected the notion that conten-

poraneous cross-examination is absolutely

4Wherever practical, all page citations

will be to the Supreme Court Reporter;

where impractical, page citations will be

to Lawyer's Edition.

mandated by the confrontation clause. In

discussing that topic, this Court said as

follows:

It may be true that a jury would be

in a better position to evaluate

the truth of the prior statement if

it could somehow be- whisked

magically back in time to witness a

grueling cross-examination of the

declarant as he first gives his

statement. The question as we see

it must not be whether one can

somehow imagine the jury in "a

better position,” but whether sub-

sequent cross-examination at the

defendant's trial will still afford

the trier of fact a satisfactory

basis for evaluating the truth of

the prior statement. On that issue,

neither evidence nor reason con-

vince us that contemporaneous

cross-examination before the ulti-

mate trier of fact is so much more

effective than subsequent examina-

tion that it must be made the

touchstone of the confrontation

clause.

90 S.Ct. at 1936 (emphasis added). This

Court held that the Sixth Amendment is

satisfied so long as the declarant is not

absent, but is present to testify and the

defendant is given an opportunity to

cross-examine the witness either before

trial or during trial. In so holding,

this Court said as follows:

Viewed historically, then, there

is good reason to conclude that the

confrontation clause is not vio-

lated by admitting a declarant's

out-of-court statements, as long as

the declarant is testifying as a

witness and subject to full and

effective cross-examination.

* * *

The inability to cross-examine

the witness at the time he made his

prior statement cannot easily be

shown to be of crucial significance

as long as the defendant is assured

full and effective cross-

examination at the time of trial.

¥ ¥ ¥

We cannot share the California

Supreme Court's view that belated

cross-examination can never serve

as a constitutionally adequate

substitute for cross-examination

contemporaneous with the original

statement.

* * *

Finally, we note that none of

our decisions interpreting the

confrontation clause requires

excluding the out-of-court state-

ments of a witness who is available

and testifying at trial.

‘ ‘

2 :

i z

”

’ a

90 S.Ct. at 1935-1936 (emphasis added).

The clear import of California v. Green

is, thus, that the requirements of the

Sixth Amendment's confrontation clause

are ication if the witness is subject

to full and effective cross-examination

at tries.

These teachings were rejected by

the Court of Criminal Appeals in Long.

The Court expressed not merely a prefer-

ence for face-to-face, contemporaneous

cross-examination but found that such is

an absolute requirement of the right of

confrontation. Indeed, the Court indi-

cates that an "exception" to the confron-

tation clause will only be permitted when

"public necessity is evident," i.e., "the

witness is unavailable to testify...

and indicia of reliability exists when a

prior opportunity for cross-examination

has occurred." App., at 72-73. By mis-

construing California v. Green, thus,

invalidating Art. 38.071 § 2, the Court

of Criminal Appeals has’- engrafted

requirements on the right of confro.ita-

tion which are not constitutionally man-

dated.

Moreover, the majority opinion in

Long completely ignored the case of

Kentucky v. Stincer,2 482 U.S. 7 ae

S.Ct. 2658, 96 L.Ed.2d 631 (1987). The

question presented in Kentucky v. Stincer

was whether the exclusion of a defendant,

but not his attorney, a public defender,

from a hearing held to determine the

competency of two child witnesses to

testify violated his rights to either

2The decision of Kentucky v. Stincer was,

however, discussed at leng’ by Judge

Teague in his concurring opin-on in Long;

Judge Teague criticized Stincer as the

product of "an aggressive and assertive

majority of the Supreme Court, which is

hell bent on mimicking the way trials are

usually conducted and held in countries

such as Russia." App., at 130-131.

te —

confrontation or to due process. In

rejecting this contention with respect to

confrontation, the Supreme Court noted

that defendant had an opportunity for

full and effective cross-examination of

the children at trial. The majority

noted that the confrontation clause is

violated when 1) hearsay evidence is

admitted as substantive evidence against

the defendant with no opportunity to

cross-examine the hearsay declarant at

trial, or 2) when an out-of-court

statement of an unavailable witness does

not bear adequate indications of trust-

worthiness. Kentucky v. Stincer, 107

S.Ct. at 2662-2663.

Neither is present in the case at

bar. TEX. R. CRIM. EVID. 801(e) (1) (D)

specifies that a videotape made pursuant

to Art. 38.071 is not hearsay. Even if

this rule were to be invalidated or

deemed inapplicable, the defendant was

not only afforded an opportunity to

cross-examine the witness at trial, but

actually took advantage of that right.

The statute specifically provided that

the witness be available to testify at

trial; hence, unavailibility was not a

consideration.

The constitutional right to con-

frontation guarantees only an opportunity

for effective cross-examination. No

particular time or place is mandated.

Indeed, it has been held by this Court

that the right of confrontation is a

trial right. Pennsylvania v. Ritchie,

480 U.S. » OS 8.Ct. 7 ae

L.Ed.2d 40,54 (1987); Barber v. Page, 390

U.S. 719,725, 88 S.Ct. 1318, 20 L.Ed.2d

255 (1968). Article 38.071 § 2 satisfies

a defendant's right of confrontation.

While testimony could be admitted into

trial under Art. 38.071 § 2 via video-

tape, the witness was required to be

available to testify at trial at the

behest of either the State or the

defendant. The right of confrontation is

not violated by the utilization as evi-

dence at trial of an out-of-court state-

ment where the person who made the state-

ment is available for cross-examination

at trial. It was therefore improper for

the Court of Criminal Appeals to declare

the statute invalid on its face as a

violation of the right of confrontation.

Further, there is no _ confrontation

problem as applied to this defendant

since the child victim actually testified

in this case and was cross-examined at

trial.

The right of confrontation is not

absolute. As early as 1895, it was held

that the right of confrontation must

occasionally give way to considerations

of public policy as well as the necessi-

ties of the individual case. Mattox v.

United States, 156 8.8023) .e00s to BeGbe

337, 386 L.Eés 609: tee In Ohio v.

Roberts, 448 U.S. 56,64, 100 S.Ct. 2531,

65 L.Ed.2d 597 (1980), it was recognized

that "competing interests" might warrant

dispensing with confrontation at trial.

See also, Lee v. Illinois, 476 U.S. ;

106 S.Ct. 2056, 90 L.Ed.2d 514 (1986),

wherein it was held-that the use of hear-

say evidence in criminal trials where the

evidence bears significant "indicia of

reliability" is not precluded by the

confrontation clause, and Chambers v.

Mississippi, 410 U.S. 284, 93 S.Ct. 1038,

35 L.Ed.2d 295 (1973).

The Texas statute was specifically

designed to promote a compelling state

interest, re the protection of

children from emotional harm. There is

ample support in the available literature

for the theory that significant emotional

trauma may result by a child testifying

in open court in the presence of their

abuser. Note: Testimony of Child

Victims, 98 Harv. L.Rev. 806,823-824

(1985); Parker, The Rights of Child

Witness: Is the Court a Protector or

Perpetrator?, 17 New Eng. L.Rev. 643

(1982); Libai, The Protection of the

Child Victim of a Sexual Offense in the

Criminal Justice System, 15 Wayne L.Rev.,

977,984 (1969), Indeed, the Court of

Criminal Appeals recognized that Art.

38.071 § 2 was enacted as "an effort to

achieve a legitimate end, the protection

of child victims as witnesses," and spe-

cifically agreed that protecting a minor

sexual assault victim from undue trauma

constitutes a compelling state interest.

App., at 79,85-86. Nevertheless, in the

Long opinion, the Court of Criminal

Appeals failed to make an adequate reso-

lution of the compelling interest of

child victims against a defendant's right

of confrontation.

It should be recognized that the

fact that face-to-face, personal confron-

tation was the only kind of confrontation

technologically possible when the

Constitution was adopted does not mean

that face-to-face personal confrontation

is the only kind that adequately protects

the rights of the accused. Applying

California v. Green, the State suggests

that, like the test adopted for determin-

ing the scope of other constitutional

rights, the test for whether the right to

confrontation has been denied requires a

balancing of the totality of the circun-

stances and the competing legitimate

interests. The accused's right to con-

frontation, not being absolute, must be

balanced against the State's interest in

protecting the child victim. The harm

from according defendant a total right to

face-to-face personal confrontation in a

case charging a sexual offense against a

child is courtroom intimidation of the

child and the resulting additional trauma

to the child. Tempering the absolute

accordance of this right to defendant,

which is face-to-face personal confronta-

tion, protects rather than demeans the

truth-seeking process. The in-court

intimidation of a child witness resulting

from the face-to-face personal confronta-

tion by defendant causes the child wit-

ness to become confused or to repress his

account of the offense. Such subverts

truth and justice to the same extent that

total denial of defendant's right to

confrontation would subvert truth and

justice. Under such a situation, a

balance must be struck. As stated in

United States v. Havens, 446 U.S. 620,

626, 100 S.Ct. 1912, 64 L.Ed.2d 559,565

(1980): "There is no gainsaying that

arriving at the truth is a fundamental

goal of our legal system."

A number of other State courts,

which have addressed substantially

similar issues, have held similar

statutes constitutional. In the case of

State v. Coy, 397 N.W.2d 730 (Iowa 1986),

jurisdiction noted sub nom Coy v. Iowa,

55: U.8.L.8. 3871. (0.8... dune 26. tees.

(No. 86-6757), the Lowa Supreme Court

considered both a confrontation and a due

process challenge to IOWA CODE §

910A.3(1) (Supp. 1985), which allowed for

a defendant to be either confined to a

separate room or to be behind a screen at

the time a child under 14 testified in

court. The Lowa Supreme Court found that

their statute violated neither the con-

frontation clause nor due process of law.

In Cogburn v. State, 732 S.W.2d 807,810-

811 (Ark. 1987), the Arkansas Supreme

Court rejected a confrontation challenge

to its videotaping statute based on the

inability of a defendant to cross-examine

the declarant at the time the out-of-

court statements were given. The

Arkansas Supreme Court noted that, under

California v. Green, the opportunity for

cross-examination at trial was sufficient

to satisfy the confrontation clause. See

also, Johnson v. State, 732 S.W.2d 817

(Ark. 1987); McGuire v. State, 706 S.W.2d

360 (Ark. 1986). In Jones v. State, 445

N.E.2d 98,100 (Ind. 1983), it was held

that the refusal to permit the defendant

to be present at the deposition of a

young sexual assault victim called by his

counsel did not deny the defendant's

right to confrontation where the witness

testified at trial and was subject to

cross-examination. bec

Other State courts of last resort

have addressed analogous situations,

finding no violation of a defendant's

right to confrontation. State v. Twist,

520° Bee 1290: ihe. FOS: Bees Fs.

Cooper, 353 S.E.2d 451 (S.C. 1987);

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

(Ky. 1986); State v. Johnson, 729 P.2d

1169 (Kan. 1986); State v. Myatt, 69/7

P.2d 836 (Kan. 1985); State v. Rogers,

692 ?.24 2 (Mont. 1966): .28ate v¥.

Sheppard, 484 A.2d 1330 (N.J. 1984). Cf.

State v. Jarzbek, 529 A.2d 1245 (Conn.

1987).

A number of federal cases have

refused to find a confrontation problem

in similar situations. In United States

vw, saunmell, 667 F.2d 1182 (Sth Cir.

1982), a criminal case arising out of

district court in the eastern district of

Texas, the prosecution was permitted to

take a videotaped deposition of a witness

who had suffered a stroke pursuant to

FED. RR. CRIM. PROC. 15a). Both

defendants were present at the deposi-

tion, attended by counsel; the witness

was examined and cross-examined. The

Fifth Circuit, relying on California v.

Green, summarily rejected a later claim

that the use of the deposition violated

the confrontation clause. See also,

United States v. Riley, 657 F.2d 1377,

1385-1386 (8th Cir. 1981), cert. denied,

459 U.S. 1111 (1983) wherein the victim

in a Mann Act prosecution was unable to

remember details of the offense at trial.

The government introduced an out-of-court

taped interview with the witness under

FED. R. EVID. 803(5) as a “recorded

recollection." ‘The Court held that the

introduction of this recording did not

violate the defendant's right of confron-

tation because the witness was available

at trial and subject to cross-examina-

tion; eto United States Vv.

Guadian-Salazar, 824 F.2d 344 (5th Cir.

1987) (the government agreed with

defendant that the admission of video-

taped deposition testimony violated the

defendant's right of confrontation; the

court cited no authority for its hold-

ing).

In United States v. Owens, 789 F.2d

750 (9th Cir. 1986), cert. granted, 55

U.S.L.W. 3569 (U.S. Feb. 23, 1987) (No.

86-877), this Court has granted review,

5 SS pee ae Tr eres

and heard oral argument, on a similar

issue. In that case, the issue was

whether the defendant's Sixth Amendment

right to cross-examination was violated

by the admission of testimony of out-of-

court identifications made by the victim

who was unable at trial, due to memory

loss, to provide the basis on which these

out-of-court identifications had been

made. The Ninth Circuit held that

defendant's rights had been violated

based on their finding that the witness

could not be subjected to cross-

examination which would afford the trier

of fact a satisfactory basis for deter-_

mining the truth of his out-of-court

identifications. A less serious situation

is involved in the instant case of Long,

where no memory loss is involved; by

statute videotaped testimony was admis-

sible only where the child was available

to testify at trial and subject to cross-

examination.

The State contends that confronta-

tion does not require live presentation

of evidence to a trier of fact in all

cases. Testimony presented via videotape,

while admittedly not a perfect substitute

for live testimony, should constitution-

ally suffice, where the child is required

to be available at trial for cross-

examination, and particularly where the

child was actually cross-examined.

The State recognizes that, subse-

quent to the Long opinion, the Texas

legislature, sitting in a second special

session, amended the videotape statute.

This fact, however, does not render the

confrontation question moot. The amended

statute applies only to an offense con-

mitted on or after the effective date of

this act, October 20, 1987, see § 6.

App., at 178-180. As such, it is not

applicable to Long. Long may still be

retried by the State of Texas, at the

taxpayers' expense, but without the use

of any videotape statement unless this

Court acts. Additionally, there are

other cases currently in the appellate

process in Texas which stand to be

affected by the Long opinion. A number of

these cases are cited in Long. App., at

3-4, n. 2. On November 4, 1987, the Court

of Criminal Appeals disposed of Jolly v.

State, No. 871-84 (Tex. Crim. App. - Nov.

4, 1987) (not yet published), based

solely on the Long opinion. And, the

revised statut@ does not apply to them

either under § 6 of the revised statute.

This Court has said it is "well

settled" that a voluntary cessation of a

challenged practice does not deprive a

federal court of its power to determine

the legality of that practice. City of

Mesquite v. Aladdins Castle, Inc., 455

U.S. 283,289, 102 S.Ct. 1070, 71 L.Ed.2d

152,159 (1982); Chicago Teachers Union v.

Hudson, U.S. .° (OSB .Ge ;

89 L.Ed.2d 232,246 fn. 14 (1986). As in

City of Mesquite v. Aladdins Castle, the

legislature's repeal of the objectionable

portions of the videotape statute would

not preclude it from reenacting precisely

the same provision if the Court of

Criminal Appeals' judgment were vacated.

See City of Mesquite v. Aladdins Castle,

Inc., 455 U.S. at 289, 71 L.Ed.2d at 160.

For these reasons’ the _ State

believes this issue is not moot.

Il.

THE COURT OF CRIMINAL APPEALS'

DECISION THAT ART. 38.071 § 2

VIOLATES THE DUE PROCESS CLAUSE

OF THE FOURTEENTH AMENDMENT BY

PLACING A DEFENDANT IN A

CRIMINAL TRIAL IN THE “UNTEN-

ABLE POSITION" OF CALLING THE

COMPLAINING WITNESS TO THE

STAND OR FOREGOING HIS RIGHT TO

CROSS-EXAMINATION IS A) UNWAR-

RANTED, AS DEFENDANT ACTUALLY

CROSS-EXAMINED THE CHILD FOL-

LOWING THE ACTION OF THE STATE

CALLING THE CHILD AS A REBUTTAL

WITNESS B) DECIDES AN IMPORTANT

QUESTION OF FEDERAL LAW WHICH

HAS NOT BEEN, BUT SHOULD BE,

SETTLED BY THIS COURT AND C)

CONFLICTS WITH A DECISION OF

THE GEORGIA SUPREME COURT.

The Court of Criminal Appeals

found, on its face, that Art. 38.071 § 2

violated due process under U.S. CONST.

amend. XIV and due course of law under

TEX. CONST. art. I § 196 because the

procedure operated so as to place an

accused in the “untenable position" of

calling the complaining witness to the

6I1t has long been settled law in Texas

that the due course of law provisions of

Art. L, § 19 were meant to be construed

in the same way as the Fourteenth

Amendment. Mellinger v. City of Houston,

68 Tex. 37, 3 S.W. 249 (1887). Indeed,

the Court of Criminal Appeals recognizes

this in Long. App., at p. 9/7.

34,

stand for purposes of cross-examination./

App., at 107. The State perceives no due

process problem.

This Court has held, in an analo-

gous situation, that one's conduct should

be examined before an analysis is per-

formed of other hypothetical applications

of law. Ulster County Court v. Allen,

442 U.S. 140,154-155, 99 S.Ct. 2213, 60

L.Ed.2d 777,790-791 (1979). See also,

Village of Hoffman Estates, et al v.

Flipside Hoffman Estates, Inc., 455 U.S.

489, 102 S.Ct. 1186,1191-2, 71 L.Ed.2d

362 (1982).

While it is true that defendant did

not elect to call the child for cross-

examination immediately after the video-

were violated by his absence at the time

the videotape was made. See an analogous

discussion in Kentucky v. Stincer, 96

L.Ed.2d at 647.

tape was played for the jury, defendant

did cross-examine the child following her

testimony on rebuttal. This was recog-

nized by the Court. App., at 10-11; 158.

An asserted denial of due process

of law is to be tested by an appraisal of

the totality of facts in a given case.

Betts v. Brady, 316 U.S. 455, 62 S.Ct.

1252, 86 L.Ed. 1595 (1942). Since Long

exercised his rights of cross-examination

in this case, following the action of the

State in producing the child as a wit-

ness, any denial of due process which may

be inherent in hypothetical applications

of Art. 38.071 § 2 was absent from the

instant prosecution.

The State admits that it is aware

of no federal case directly on point. A

similar issue was, however, raised in the

Georgia case of Sosebee v. State, 35/7

S.E.2d 563 (Ga. 1987) wherein the Georgia

Supreme Court decided a due process chal-

lenge to GA. CODE ANN. § 24-3-16, a

statute which provided for the admission

of a videotaped interview where indicia

of reliability had been met and where the

child was available to testify at trial.

That court interpreted the statute as

requiring the trial court to call the

child as its own witness. The Texas

statute is clearly subject to a similar

construction.

By introducing tne videotape into

evidence and by playing the tape for the

trier of fact, the prosecution has, in

effect, "called" the child witness to the

stand. Certainly, the State will always

be sponsoring the videotape as its own.

Indeed, it would be a rare prosecutor who

would be unwilling to stipulate that the

child witness was, in fact, the prosecu-

tion's witness. For the defendant to

request that the child take the stand for

purposes cf cross-examination is not so

burdensome as to constitute a denial of

due process of law.

Ill.

CERTIORARI IS PROPER, AS THIS

COURT IS THE FINAL ARBITER OF

ITS OWN JURISDICTION.

In Michigan v. Long, 463 U.S. 1032-

1041, 103 S.Ct. 3469, 77 L.Ed.2d 1201,

1214 (1983), this Court set out the rule

for determining whether review should be

denied on the basis that an adequate and

independent state ground exists:

Accordingly, when, as in this case,

a state court decision fairly

appears to rest primarily on

federal law, or to be interwoven

with the federal law, and when the

adequacy and independent of any

possible state law ground is not

clear from the face of the opinion,

we will accept as the most reason-

able explanation that the state

court decided the case the way it

did because it believed that

federal law required it to do so.

(Emphasis added). This Court continued:

If a state court chooses merely to

rely on federal precedents as it

would on the precedents of all

other jurisdictions, then it need

only make clear by a plain state-

ment in its judgment or opinion

that the federal cases are being

used only for the purpose of

guidance, and do not themselves

compel the result that the court

has reached. In this way, both

justice and judicial administration

will be greatly improved.

(Emphasis added). Where such a plain

statement is made by the state court,

this Court concluded:

If the state court decision indi-

cates clearly and expressly that it

is alternatively based on bona fide

separate, adequate, and independent

grounds, we, of course, will not

undertake to review the decision.

(Emphasis added).

In International Longshoremen's

Assn. v. Davis, 476 U.S. , 06.8.Ct.

, 90 L.Ed.2d 389 (1980), this Court

stated:

The inquiry into the sufficiency of

the asserted state ground, however,

is one that we undertake our-

selves.

90 L.Ed.2d at 398. See also Ohio v.

Jonnason, 467 U.S. 693,497 fh. 7, 106

SeGG. 2336, 81. Libd.2d 425,432 fan. 7

(1984).

Therefore, the State believes this

means that even where the state court

clearly and expressly makes a plain

statement in its opinion that federal

cases are being used "only for the pur-

pose of guidance, and do not themselves

compel the result" that the court has

reached, as the Texas Court of Criminal

Appeals did at Footnote 22, App., at 120,

this Court under Michigan v. Long will

determine whether the opinion is based on

bona fide separate, adequate, and inde-

pendent grounds, or whether the opinion

rests on federal grounds (or. state

grounds totally interwoven with federal

grounds) so that the state court, by its

clear and express plain statement is

merely giving lip-service to Michigan v.

Long in order to preclude further review.

Since the Sixth Amendment right of

confrontation and Fourteenth Amendment

right to due process are applicable to

the states, see Pointer v. Texas, 380

U.S. 400,406, 85 S.Ct. 1065, 13 L.Ed.2d

923,928 (1965), the states may not impose

greater restrictions, as a matter of

federal constitutional law, than this

Court. Oregon v. Hass, 420 U.S. 714, 719

95 S.Ct. 1215, 43 L.Ed.2d 570,576 (1975).

Thus, as a practical matter, in rendering

an opinion on a matter of first impres-

sion where both federal and state consti-

tutional grounds are alleged, the state

court must first determine federal law to

determine the minimum amount of protec-

tion required by the federal constitution

since a state may not afford less protec-

—EEE

tion than the minimum required by federal

law applicable to the states. Once this

minimum amount is determined, and no

federal constitutional violation is

found, the state may go on to require

greater protection as a matter of state

constitutional law if it believes the

amount of protection minimally mandated

by the federal constitution is not ade-

quate. See Oregon v. Hass, 420 U.S. at

719. If the minimum amount is determined

and a federal constitutional violation is

found, the state constitution is neces-

sarily violated and not "independent" of

the federal violation.

The Court of Criminal Appeals found

violations of the federal constitution

and concomitant to that found violations

of the state constitution, see South

Dakota v. Neville, 459 U.S. 553,556 fn.

5, 103 S.Ct. 916, 74 L.Ed.2d 748,754

(1983). A fair reading of the Court of

Criminal Appeals opinion, with its empha-

sis on the common historical roots of the

federal and state rights to confronta-

tion, ‘dimes they are interpreted the

same. Cf. Kentucky v. Stincer, 482 U.S.

Sg ERs F, 109 SCC. 2038, 96 La Bd. 2d

631,641 (1987). The Court of Criminal

Appeals made no specific finding that the

state constitution provided greater pro-

tection. Nor could it honestly have done

so since the right of confrontation pro-

vided by TEX. CONST. art. I, § 10 has

always been interpreted the same as the

Sixth Amendment right of confrontation.

avtictie. i; -% 10 of the Texas

Constitution has never been interpreted

more stringently than the Sixth Amendment

to the United States Constitution. The

State's research reveals Texas cases have

addressed the question of confrontation

under interwoven standards of the state

constitution and the Sixth Amendment

and/or under federal cases. The

majority of Texas cases which have

addressed issues with respect to confron-

tation have considered the Sixth

Amendment and Article I, § 10 of the

Texas Constitution in tandem. Federal

cases have, more often than not, been

relied upon.8

Those reported cases which have

been decided solely on state grounds do

not reveal any more stringent application

932 (Tex. Crim. App. %*985); Harris v.

State, 642 S.W.2d 471,472,476-480 (Tex.

Crim. App. 1982); Spain v. State, 585

S.W.2d 705,709-710 (Tex. Crim. App.

1979); Raley v. State, 548 S.W.2d 33,35-

36 (Tex. Crim. App. 1977); Bass v. State,

5927 S.4.20 336,350 (Tex. Gri@.. App.

1975); Carver v7. State, 510 $.W.2¢ 349,

351-352 (Tex. Crim. App. 1974); whitehead

¢,. SEeee, > Gon eaieee 11453 2°1o, teens

Crim. App. 1968); and Kemper v. State,

138 S.W. 1025,1038-1048 (Tex. Crim. App.

1911).

of TEX. CONST. art. I, § 10 than that of

the Sixth Amendment.9 Indeed, the Court

of Criminal Appeals has stated: "The

Sixth Amendment to the Federal Constitu-

tion .. . provides for confrontation in

language not materially different to that

of our State Constitution.” Garcia v.

State, 210 S.W.2d 574 (Tex. Crim. App.

1948). Other Texas cases have discussed

the right to confrontation without really

9See Fontenot v. State, 500 S.W.2d 843,844

(Tex. Crim. App. 1973) (a commission

Opinion approved by the court); Johnson

v. State, 379 S.W.2d 329 (Tex. Crim. App.

1964) (a commission opinion approved by

the court); Ludwig v. State, 298 S.W.2d

166,167 (Tex. Crim. App. 1956); Garcia v.

State, 210 S.W.2d 574 (Tex. Crim. App.

1948) (opinion on motion for rehearing);

Newborn v. State, 292 S.W. 247,249 (Tex.

Crim. App. 1927); and Cline v. State, 36

S.W. 1099,1104-1109 (Tex. Crim. App.

1896).

specifying whether the holding rests on

state grounds, federal grounds, or both. 19

The Court of Criminal Appeals'

opinion in Long speculates in dicta,

without citing any state law, that the

"syntax" of Art. I, § 10 is "easily sus-

ceptible to a more affirmative and vigor-

ous interpretation" and is "arguably more

emphatic." In fact, however, the state

and federal constitutional guarantees of

confrontation have been and are the same

and are so closely interwoven as to be

identical.

10See Beid v. State, 692 S.W.2d 65,72-73

(Tex. Crim. App. 1985); Ex parte Grothe,

687 S.W.2d 736,739 (Tex. Crim. App. 1984)

(federal cases only cited); Estes v.

State, 283 S.W.2d 52,54 (Tex. Crim. App.

T7955); Walding v. State, 120 S.W.2d 1052

(Tex. Crim. App. 1938); Hays v. State,

164 S.W. 841,842-843 (Tex. Crim. App.

1914).

BEST AVAILABLE COPY:

The Texas Court of Crimi. .1 Appeals

itself, in its opinion in Long, recog-

nized that the due process clause of the

Fourteenth Amendment and the due course

of law clause of TEX. CONST. art. I, § 19

have always been equated and are deemed

Synonymous. App., at 9/7.

Accordingly, a fair reading of the

state court's opinion shows the court

analyzed many federal cases, and a few

state cases which were based on the same

interwoven federal/state standard of

confrontation and the same interwoven

federal/state standard of due process to

hold the child videotape statute, Art.

38.071 § 2 unconstitutional. A fair

reading of the opinion below shows that

in deciding this matter of first impres-

sion the Court of Criminal Appeals deter-

mined the minimal protection afforded by

the federal constitution and necessarily

aad Pane e

determined the Texas Constitution was

also violated. Hence, when the Court of

Criminal Appeals says its finding of

violations ef Act. 1, § 10 and Act. 1,°%

19 is "independent" of the Sixth and

Fourteenth Amendments, respectively, it

only means that there is an equal (inde-

pendent) violation of the equivalent

state and federal constitutions; see

South Dakota v. Neville; Kentucky v.

Stincer; the equivalent confrontation

protections of Art. I, § 10 and the Sixth

Amendment have each been violated and the

equivalent due process protections of

Art. I, § 19 and the Fourteenth Amendment

have each been violated.

To date, Texas cases have always

construed the rights of confrontation and

due process of law under the state and

federal constitutions to be identical.

The Texas Court of Criminal Appeals has

never construed its constitution to

impose standards higher than the federal

constitution with regard to either con-

frontation or due process. The Court

does not do so in Long. Thus, despite

the conclusory statement of Footnote 22,

which admittedly tracks the language of

Michigan v. Long, a fair reading of this

opinion reveals no_ bona fide separate,

adequate and independent state grounds on

which the Court based its opinion. Foot-

note 22 is a blatant attempt to thwart

certiorari.

This Court is obviously the final

arbiter of its own jurisdiction. Long

raises important issues under the Sixth

and Fourteenth Amendments which require

resolution by this Court. The State thus

respectfully urges this Court to exercise

its certiorari jurisdiction and to

examine the federal questions raised.

TREE AT CPO TT

granted.

CONCLUS ION

It is respectfully submitted that,

for the reasons outlined above, this

Petition for Writ of Certiorari should be

Respectfully submitted,

JOHN C. VANCE

CRIMINAL DISTRICT ATTORNEY

DALLAS COUNTY

STATE OF TEXAS

Keoki. CL. a)

KATHI ALYCE DREW

ASSISTANT DISTRICT ATTORNEY

(214) 653-7249

COUNSEL OF RECORD

ANNE B. WETHERHOLT

ASSISTANT DISTRICT ATTORNEY

(214) 653-7253

COUNSEL FOR PETITIONER

APPENDIX

INDEX TO APPENDIX

OPINION ON STATE'S PETITION

FOR DISCRETIONARY REVIEW....

CONCURRING OPINION.............

CONCURRING AND

DISSENTING OPINION..... eeeee

DISSENTING OPINION ON

STATE'S PETITION FOR

DISCRETIONARY REVIEW........

OFFICIAL NOTICE

COURT OF CRIMINAL APPEALS...

OFFICIAL NOTICE

COURT OF CRIMINAL APPEALS...

OFFICIAL NOTICE

COURT OF CRIMINAL APPEALS...

ART. 38.071. cccccccccccccccscces

App. 1

App.

124

158

163

175

176

177

178

JAMES EDWARD LONG, Petition for

Appellant Discretionary

Review from the

NO. 867-85 v. - - - Court of Appeals,

Fifth Supreme

THE STATE OF TEXAS Judicial District

Appellee of Texas

(DALLAS COUNTY)

OPINION ON STATE'S

PETITION FOR DISCRETIONARY REVIEW

The appellant was indicted for sexual

abuse of a child as then proscribed by

§21.10, Tex. Penal Code.+ Following a

jury trial, the appellant was convicted

and assessed the maximum punishment at

that time permitted under the statute:

twenty years in the Texas Department of

Corrections and a $10,000.00 fine.

Now §22.011 and §22.021, Tex.

Penal Code (Supp. 1986-1987).

App. 2

Long - 2

On appeal to the Fifth Court of

Appeals the appellant claimed, inter

alia, and most significantly, that the

trial court's admission of a pre-trial

videotaped interview of the

complainant, as authorized by Art.

38.071, §2, V.A.C.C.P., was improper

because the statute is an

unconstitutional deprivation of his

right of confrontation under the Sixth

Amendment to the United States

Constitution, as made applicable to the

states by the Fourteenth Amendment.

See: Pointer v. Texas, 380 U.S. 400, 85

S.Ct. 1065, 13 L.Ed.2d 923 (1965).

And, is Similarly unconstitutional

under Art. I, §10 of the Texas

Constitution (1876). In a _ published

Long - 3

opinion, Long v. State, 694 S.W.2d 185,

(Tex.App. Dallas 1985 pet. granted),

the Court of Appeals agreed with the

appellant's contentions and decided

that Art. 38.071, §2, supra is

patently and as utilized in the -

appellant's prosecution unconstitional.

Because there are conflicting Court of

Appeals’ opinions we granted the

State's Petition for Discretionary

Review to review that decision. 2

2 In addition to this case, the

Courts in the following cases have

declared Art. 38.071, §2, supra

unconstitutional’ Buckner v. State,

719 S.W.2d 644 (Tex.App. - Fort

Worth 1986, pet. filed); Romines v.

State, 717 S.W.2d 745 (Tex.App. -

Fort Worth 1986-, pet. filed). In

the following cases th@ Courts of

Appeal found the statute

constitutional: Whittemore Vv.

(continued on next page)

Long - 4

According to the’ record, shortly

before the appellant's trial, at the

request of the District Attorney's

Office, the assistant director of the

Dallas Rape Crisis Center had a

videotaped interview with the twelve-

year-old complainant. During the taped

interview, the complainant commented

upon her relationship with the

(continued from prior page)

State, 712 S.W.2d 607 (Tex.App.

Beaumont, 1986, pet. granted);

Mallory v. State, 699 S.W.2d 946

(Tex.App. Texarkana 1985, pet.

granted); Tolbert v. State, 697

S.W.2d 795 (Tex.App. Houston [lst]

1985, pet. granted); Alexander v.

State, 692 S.W.2d 563 (Tex.App.

Eastland 1985, pet. granted); Jolly

v. State 681 S.W.2d 689 (Tex.App.

Houston [4th] 1984, pet. granted);

Woods v. State, 713 S.W.2d 173

(Tex.App. - Texarkana 1986, pet.

filed).

— a

een

Long =~ 5

appellant and revealed a number of

sexually related incidents occurring

between her and the appellant.

According to M P ’ the

appellant was her mother's boyfriend

who had lived with them _ for some

extended period of time. That her

first sexual experience with the

appellant occurred when she was about

five and one-half years old. At that

time, while the child's mother was

working, the appellant took her _ into

her mother's bedroom and "started

sucking my vagina."

Then, utilizing anatomically

correct dolls, the complainant revealed

a sordid and disgusting series of

sexual activities between her and the

App. 6

Long - 6

appellant that included both anal and

Oral sex, which occurred anywhere from

two to seven times a day during the

approximately three years he lived with

the complainant and her mother.

At the appellant's trial, the

videotape of the interview was admitted

into evidence and played for the jury.

Prior to the tape being admitted into

evidence the appellant interjected an

objection to the admissibility of the

videotape essentially on the basis that

it denied the appellant his right of

confrontation.

After the videotape was displayed

to the jury, the State called several

witnesses, including the complainant's

mother. Since their testimony is not

App. 7

Long - 7

pertinent to the issue confronting the

Court it will not be summarized.

Thereafter, the State rested its case

in chief.

The appellant then testified. In

Summary, after recounting the events

Surrounding his arrest and a

conversation he had with the

complainant's mother, the appellant

stated that the complainant's

allegations were not true. He then

testified to his prior relationship

with the complainant and her mother,

i.e., how long and when he lived with

them. He also testified to certain

additional matters not relevant to this

appeal; therefore, that portion of his

testimony will not be summarized.

Long - 8

On cross-examination, in addition

to several other matters that are also

not pertinent to this appeal, the

appellant again denied ever engaging in

anal or oral intercourse with the

complainant.

The appellant's wife then

testified essentially about their

relationship and the appellant rested.

The State in rebuttal, pursuant to

Art. 38.071, §2(b), supra called the

complainant, M P to testify.

After preliminary questioning relative

to her age, school attendance, and

apparent nervousness the State began to

ask questions more pertinent to the

prosecution. At that point the

appellant objected, asserting that the

App. 9

Long - 9

State's questioning was "improper

rebuttal [and] nothing more than

reiteration of what occurred on

direct." The appellant's objection was

overruled. The complainant then

proceeded to relate essentially the

same series of sexually related

encounters with the appellant that had

been recorded on the videotape and

previously displayed to the jury.

During her testimony the appellant

again objected, this time, however, he

claimed the testimony was "improper

bolstering." The trial court also

overruled this objection and the

complainant's testimony continued. It

is satisfactory and sufficient to note

that the balance of her direct

Long - 10

testimony was her recounting the same

specific sexual experiences she had

with the appellant that had already

been displayed to the jury in the

videotape.

On cross-examination the

complainant recalled the videotape tape

session, conversations she had with the

prosecutor and a District Attorney's

investigator, as well as who, what and

when she told of the sexual abuse.

Concluding his cross-examination the

appellant asked the following question,

that was answered as noted:

"Q. Okay. Now, M » did

you tell someone that

back down in the past

that the reason that you

told your mother that you

were having this type of

relationship with Mr.

App. ll

Long - ll

Long here is because you

didn't want them to get

back together?

~ ore. & that [sic],

true."

On redirect the complainant claimed

that she also told of the sexual abuse

"because they were talking about getting

back together, and I just went through so

much pain and it hurt so bad, .. ."

The appellant returned to the stand

and reiterated that none of the sexual

encounters with the complainant had

cccurred, and that he had requested her

mother have the complainant physically

examined.

App. 12

Long - 12

At that point both sides rested and

closed. 3

II.

At issue in this case is whether

Art. 38.071, §2, V.A.C.C.P. infringes

upon a defendant's right to be confronted

by his accusers as guaranteed by the

3 Prior to the charge being read to

the jury, however, the State

received permission to reopen for

the purpose of showing “that there

would be no medical evidence after a

period of three months, of sexual

abuse of a child involving anal

intercourse ... .”"

Outside the presence of the

jury the State recalled its first

witness, Jan Delipsey, to elicit

such testimony.

After an extensive voir dire

examination into the witness

qualifications as an expert by the

State, defense, and the judge, the

State abandoned its efforts and

closed.

No further evidence was

offered by either party.

App. 13

Long - 13

Sixth and Fourteenth Amendments of the

United States Constitution and Art. I,

4 Because

§10 of the Texas Constitution.

of the very significant and controversial

nature of this issue a thorough analysis

of one's right of confrontation is

necessary.

It is undeniable that the theory and

principle of confrontation is indelibly

linked to the practice of excluding from

evidence hearsay statements. In fact,

confrontation arose from the evolution of

what we know as the hearsay rule.

Historically, the judicial policy of

excluding hearsay statements 2

distinct and living idea, . .. [did] not

‘ See also Art. 1.05, V.A.C.C.P.

App. 14

Long - 14

gain a complete development and final

precision until the early 1700s."

Wigmore, Wigmore on_ Evidence, 3rd ed.,

vol. 5, p. 9 (Boston' Little, Brown and

Co., 1940) [hereinafter referred to as

Wigmore].

At the inception of the procedure

that was to ultimately become the jury

trial (circa 1300's), the trial witness,

as we perceive him today, was an unknown

character. Instead, evidence was

reviewed by the jury principally from

previously designated witnesses who did

not testify in open court. Rather, the

jury solicited their knowledge, which

they had acquired from some usually

undisclosed source, and conferred with

them privately. Consistent with that

ena

App. 15

Long - 15

practice, in those disputes "where facts

were involved which, as we should think,

needed other testimony, the counsel

stated them by allegations, and a special

witness might or might not be present to

Sustain the allegation." Id., p. ll.

Therefore, as late as at the beginning of

the Sixteenth century it was common

practice for a jury to obtain "evidence"

from sources outside the court, including

assertions of what another had said or

would say.

Gaining in popularity at this time

was the frequent use of ex parte

depositions, both sworn and _unsworn.

During this period of time, however,

these methods of acquiring evidence were

App. 16

Long - 16

also being Sincerely questioned.

Nevertheless, the practice persisted.”

By the 1680's the wholesale

acceptance of hearsay statements had

fallen into disfavor and excluding such

evidence was quickly becoming common

practice. Although, according to

Wigmore, "([nJo precise date or ruling

stands out as decisive... ," Id., p.

16, it is generally accepted that the

2 The right of a defendant to confront

complaining witnesses essentially

begins with the public's reaction to

Sir Walter Raleigh. Sir Walter

Raleigh was convicted of treason

after trial by affidavit, without

ever being allowed to confront his

accusers. See: Graham, "The Right

of Confrontation and the Hearsay

Rule' Sir Walter Raleigh Loses

Another,” 8 Crim. L. Bull. 99 (1972

\e)

Long - 17

hearsay rule became established "between

1675 and 1690." Id.

The hearsay rule came about

principally because the former methods of

obtaining evidence failed to protect one

against errors or untrustworthiness. One

means of exposing these deficiencies was

the procedure of cross-examination in

which the adverse witness' statements

were scrutinized. It has been stated

that "many possible deficiencies,

suppressions, sources of error and

untrustworthiness, which lie underneath

the bare untested assertion of a witness,

may be best brought to light and exposed

by the test of cross-examination. Id.,

p. 3. Thus, the principal purpose of

the hearsay rule and the primary factor

App. 18

Long - 18

responsible for the doctrine's evaluation

and acceptance was that it ensured the

right of cross-examination. Accordingly,

the fundamental purpose of the rule, at

least historically, was to provide an

opportunity to cross-examine the witness.

Going hand-in-hand with the

development of the hearsay rule was the

concept of physical confrontation, or the

right of having the witness present for

the purpose of cross-examination. As the

hearsay rule became entrenched in English

common law so did the means of

accomplishing its primary purpose (cross-

examination): physical confrontation.

Thus, although "the main idea in the

process of confrontation is that of the

App. 19

Long - 19

opponent's opportunity of cross-

examination; the former {physical

confrontation] is merely the dramatic

feature, the preliminary measure,

appurtenant to the latter." Id., p. 124.

This is not to ignore, however, the

Substantial benefit that can be derived

by requiring witnesses to present

themselves for cross-examination. That

is, the trier of fact is given the

Opportunity of observing the demeanor of

the witness) and may draw whatever

appropriate subjective conclusions that

can be associated with that observation.

With the witness-physically present the

witness' credibility can be judged not

from just what is’ said, but how it is

App. 20

Long - 20

said. In judging the credibility of a

witness this is a most valuable right.

So, historically, the right of

confrontation has essentially two

purposes. First and foremost is that it

affords the accused the opportunity of

cross-examination. Second, and almost

incidental to cross~examination, is

physical confrontation. Therefore, again

in at least historical terms, "{i]f there

has been a cross-examination, there has

been a confrontation." Id., p. 127. In

other words, the right to a witness'

physical presence was secondary to the

necessity of one being given the

opportunity to cross-examine the witness.

While the hearsay rule was in its

early stages of development so too was

App. 21

Long - 21

the colonization of America at Jamestown

and Plymouth Rock. There is no doubt

that the Crown intended that English law

was to move with the colonists across the

Atlantic to their new home in America.

For example, the patents Queen Elizabeth

granted to Gilbert and Raleigh contained

statements "that the colonists settled

under these grants should possess’ the

same constitutional rights as were

enjoyed by Englishmen in the _ homeland."

Heller, The Sixth Amendment to the

Constitution of the United States: A

Study in Constitutional Development

(Greenwood Press' New York, 1969), op.

13-14. However, the colonial experience

produced some divergences from the law of

England.

App. 22

Long - 22

One departure the colonists made

from the English law that is particularly

Significant was the colonies' adoption of

Europe's system of the public prosecutor.

The result of this action "was that, at a

time when virtually all but treason

trials in England were still in the

nature of suits between private parties,

the accused in the colonies faced a

government official whose specific

function it was to prosecute... ."

Id@., pe. 21. The practical effect of

such prosecutorial authority was that the

government would have a substantial

advantage over a defendant “unless

extreme vigilance was practiced to

safeguard the precarious privileges so

recently granted to the accused." Id.

App. 23

Long - 23

These "privileges" were so valued

that the Continental Congress’ in 1774

declared that the colonies were entitled

to them. In fact, as early as 1776 the

Declaration of Rights of Maryland, in

addition to declaring that its citizens

were entitled to the common law of

England, also stated that they were

entitled to a trial by jury and "the

rights which every man had in criminal

proceedings' . . . to be confronted with

the witnesses against him... ." Id.,

p. 22.

The right of confrontation had

become a part of accepted criminal

procedure in the colonies even prior to

App. 24

Long - 24

the American Revolution. ® This is

reflected in the North Carolina

Constitution' "in all criminal

6 The Puritans who settled in

Massachusetts had a low opinion of

lawyers and did a20t permit the

practice of law in the colonies.

Conseq@ently, many of the principles

of English common law were not

applicable to their criminal justice

proceedings. For example, at the

Salem witch trials in 1692 the

numerous defendants did not enjoy

the presumption of.inmocence, they

obv@ously were not entitled to

counsel and jury verdicts were only

advisory. It is rather interesting

to note, however, that all of the

possessed children were required to

come into court and in the presence

of the defendant witch detail the

sorcery. Thus, the one right that

even the alleged witch did enjoy was

the right of confrontation. For a

detailed description of the Salem

witch trials see' MNarion Starkley,

The Devil in Massachusetts (New

York, A. A. Knopf' 1949@.

App. 25

Long - 25

proceedings, every man has a right to

- + « confront the accusers." Id. The

Virginia Bill of Rights similarly

guaranteed that an accused has a right

"to be confronted with the accusers’ and

WanmGeeee «+ « 2» IGee Be 230. The

Declaration of Rights of Massachusetts

and the Bill of Rights of New Hampshire

contained identical rights, including

that of confrontation.

Although the details of criminal

procedure were not embodied in the draft

constitution submitted to the

Constitutional Convention delegates in

1787, it was not very long afterwards

that a cry for a Bill of Rights was being

heard. There was a great deal of

opposition to the proposed Constitution

App. 26

Long - 26

because it did not contain a Bill of

Rights, a part of which would ensure

certain accepted criminal procedures.

For example, in one of the Anti-

Federalist papers, which opposed the

proposed constitution, it was stated'

"Por the security of life, in criminal

prosecutions, the bills of rights of most

of the states have declared, that no man

shall be held to answer for a crime until

- . ~ the witnesses against him shall

be brought face to face. ..." Kammen,

The Origins of the American Constitution'

A Documentary History (Viking Penguin

Inc.: New York, 1986), p. 315-316.

The Constitution was ratified

without a Bill of Rights. However, it

achieved ratification "only because

App. 27

Long ~- 27

Crucial states where ratification had

been in doubt, were willing to accept the

promise of a bill of rights in the form

of subsequent amendments to the

Constitution." Levy, Constitutional

Opinions' Aspects of the Bill of Rights

(Oxford University Press: New York,

1986), p. 117.

The nucleus of the Bill of Rights

was the various state constitutions that

were developed after America became

independent. At the time of the

Convention twelve states had produced

constitutions. None of the state

constitutions, however, included as

comprehensive a bill of rights which

recognized the guarantees that evolved

into the first ten amendments. The one

Long - 28

thing the various state constitutions did

have in common, however, was that they

all secured the right to trial by jury

and this included the right to be

confronted by one's accusers. Some, such

as Virginia's Constitution of 1776,

failed to protect freedom of speech,

ensure the writ of habeas corpus, or

guarantee the right to grand jury

proceedings. Pennsylvania's bill of

rights was more comprehensive than

Virginia's, but it failed to, among other

things, ban excessive fines’ and cruel

punishments. But even these states, who

overlooked or rejected several of our

most treasured values, did not ignore or

reject the right of confrontation.

Long - 29

Almost passively the right of

confrontation found its way into every

document that could be considered the

forerunner of the Constitution. The

necessity of its inclusion into the

Constitution was apparently viewed to be

simpiy absolute and so it was that

confrontation became one of the

guarantees accorded accused individuals.

Its incorporation was apparently a

foregone conclusion that generated no

serious debate among the delegates simply

because the right to confront one's

accusers is one of the fundamental

Guarantees of life and liberty. It was

thought: because "the rights of the

criminally accused are legitimate

defenses of the individual against

Long - 30

government, [and] because the enduring

interests of that society require justice

to be done as fairly as possible," Id.

at 134, the right of confrontation must

be explicitly protected. And so it was.

On June 8, 1789, James Madison

introduced the Bill of Rights in

Congress., On September 26, 1789,

Congress adopted the Bill of Rights’ and

submitted them to the states for

ratification. On December 15, 1791,

Virginia ratified the Bill of Rights and

they became a part of the Constitution.

The right of confrontation, as a

state guaranteed right, has a history

that parallels that of Texas as an

independent republic, and later as a

wry SR

Long - 3l

State. For example, the Constitution of

the Republic of Texas includes, under the

title "Declaration of Rights," the

Following:

Sixth. In all criminal

prosecutions the accused shall

be confronted with the

witnesses against him, ...

See: Sayles, The Constitution

of the State of Texas (E. H.

Cushing' Houston, 1872), p.

173.

In 1845 the new State of Texas

adopted the first of several successive

constitutions. It continued the

guarantee of confrontation, Id., p. 186.

On February 1, 1861 an "“ordinance" was

adopted at a state convention which

seceded Texas from the United States.

After becoming a part of the Confederate

States of America, Texas adopted a new

Long - 32

constitution. It also continued the

policy of guaranteeing to accused persons

the right of confrontation (Art. I,

§8). Id., p. 226.7

Following the Civil War the

Constitution of 1861 was amended in 1866

at a convention in Austin. The guarantee

of eonfrostation was not disturbed (Art.

Ae BS); Id. at 300. However, the

government Organized under the 1866

Constitution was not approved by the

Congress of the United States.

Consequently, another Constitution, which

was later approved by Congress, was

7 The Constitution of the Confederate

States of America also included the

right of confrontation (Art. I, §IX,

paragraph 17). Sayles, supra, p.

287.

’

H :

‘

;

Long - 33

ratified in July, 1869. That

Constitution also included the right of

confrontation (Art. I, §8) Vernon's Texas

Const. Ann., "Early Constitutions and

Organic Laws," vol. 3, p. 640 (1955).

In 1876 the people of Texas ratified

the present Constitution. The

confrontation clause in the present

Constitution provides:

Sec. 10. Rights of Accused in

Criminal

Prosecution.

In all criminal

prosecutions the

accused .. . shall

be confronted by the

witnesses against

+) 2 ee oer | 4 oy

I, §10, Texas

Constitution.

8 The latter portion of the Texas

Confrontation Clause provides as

follows' “except that when the

(continued on next page)

App. 34

Long - 34

The right of confrontation enacted

in the earliest of the Texas

Constitutions actually was consistent

with an express provision that "in all

(continued from prior page)

witness resides out of the State and

the offerse charged is a violation

oF any of the anti-trust laws of

this State, the defendant and the

State shall have the right to

produce and have the evidence

admitted by deposition, under such

rules and laws as the Leg ‘ature

may hereafter provide."

This is one of 2 few

amendments made to the Texas Bill of

Rights. It was adopted in 1917, and

obviously applies only to violations

for state anti-trust laws.

According to one authority, "A

search of historicsi records failed

to turn up any clear reason for the

amendment." Seth S. Searcy III,

"Bill of Rights: §§9 & 10," in The

Constitution of the State of Texas'

An Annotated and Comparative

Analysis, ed. George D. Braden

(n.p.:n.p., 1977), vol. .l p. 36.

App. 35

Long - 35

Criminal cases the common law shall be

the rule of decision." Art IV, §13

Republic of Texas Constitution (1836).

Therefore, the same right of

confrontation that was adopted by the

thirteen original United States in 1787

found its way to Texas by 1836.

It is relevant at this point to note

that the syntax of the confrontation

clause in Art, I, §10, Texas

Constitution (1876) is easily

Susceptible to a more affirmative

and. vigorous interpretation than

the comparable confrontation clause

of the Sixth Amendment. The right

of confrontation guaranteed under

the Sixth Amendment is presented in

a more or less passive style: "In

all criminal prosecutions, the

accused shall enjoy the right

to be confronted with the witnesses

against him; .. ." Whereas, Art.

I, §10 is arguably more emphatic'

"In all criminal prosecutions’ the

accused shall be confronted by the

witnesses against him." Or, Art. I,

(continued on next page)

App. 36

Long - 36

What came with this very valuable right

were the interpretations and exceptions

that ‘had been impressed upon it in

England. Accordingly, in its historical

evolution the main and essential purpose

of confrontation was to secure for the

accused the opportunity of cross-

examination. Secondary to that purpose,

however, was the presence of one's

accuser in court. These distinct

purposes were the foundation of the rule

(continued from prior page)

§10 is framed, not "in terms of

rights granted, but in terms of

clear mandate [sic] that the accused

"shall be confronted’ .. . ." by

the witnesses against him. Miller,

"Does the Child Witness Videotape

Statute Violate the Confrontation

Clause?: Article 38.071, Texas Code

of Criminal Procedure," 17 Tex.Tech

L.R. 1669 (1986) at 1681.

App. 37

Long - 37

because common law never recognized as

absolute the right to physically face

one's accusers. The right of cross-

eustiinat ion, however, was viewed as

indispensable. These purposes or

distinctions were necessarily adopted

when the theoretical principle of

confrontation was later adopted in Texas.

As stated, confrontation was not

without its limitations and exceptions.

Even the "indispensable" right of cross-

examination "involved the idea of

exceptions, and the Constitution makers

endorsed the general principle merely as

such." Wigmore, supra at 130. And, as

noted, actual physical confrontation was

not ever absolute--it was generally

viewed as a viable means to reach the

Long - 38

indispensable end. In other words, by

requiring an accuser's presence in court

the opportunity of cross-examination is

necessarily attained

In its evolution as a form of

guaranteeing cross-examination numerous

exceptions were impressed upon the

hearsay rule. If an exception was

applicable then the denial of cross-

examination was forgiven. The early

exceptions were based upon two

considerations: a necessity for the

evidence and the probability of it being

trustworthy. Necessity could, in most

instances, be equated with a witness

being dead or otherwise legally

unavailable. The probability of its

trustworthiness was actually a

App. 39

Long - 39

shorthanded rendition of asserting that

when experience indicates that under

certain circumstances the accuracy of the

evidence would not be adversely affected

by cross-examination it was sufficiently

reliable. In other words, certain types

of hearsay information is normally

accurate and valid to the extent that the

purpose of cross-examination would not be

served by subjecting it to cross-

examination. Consequently, such evidence

will be admissible even though cross-

examination does not occur. As a result,

dying declarations, reputation, and

business records, among numerous other

exceptions, are admissible even though

10 See Tex. R. Crim. Evid., R. 803 and

R. 804.

App. 40

Long - 40

neither the opportunity for cross-

examination nor physical confrontation

have occurred.

IV.

In 1895 the United States Supreme

Court examined the confrontation clause

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

15 S.Ct. 337, 39 L.Ed. 409 (1895). In

Mattox the defendant had originally been

convicted of murder. That conviction had

been reversed and remanded for a new

trial. Prior to the new trial both of

the government's prosecution witnesses

died. During the second trial, over the

defendant's objection, "a transcribed

copy of the reporter's stenographic notes

- eof” Id. at 240, of the dead

App. 41

Long - 41

witnesses' previous trial testimony was

admitted into evidence.

Concluding that the "rights of the

public . . .," Id. at 241, would not be

served by declaring such evidence

inadmissible, the Court identified the

purpose of the confrontation clause in

the Sixth Amendment. The Court stated:

The-primary object of the

constitutional provision in

question was to prevent

depositions or ex parte

affidavits, such as were

sometimes admitted in civil

cases, being used against the

prisoner 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 gauge by his

demeanor upon the stand and the

App. 42

Long - 42

manner in which he gives his

testimony whether he is worthy

of belief. Id. at 242-243.

In Mattox v. United States, supra

the historical and primary purpose of the

right of confrontation was given judicial

approval. Continuing to adhere to such

recognition the Supreme Court in Alford

v. UMmttead states, 282 U.S. 687, 51 S.Ct.

218, 75 L.Ed. 624 (1931), commented that

the right of cross-examination is "one of

the safeguards essential to a fair

trial." Id. at 692. See also' Parker v.

Gladden, 385 U.S. 363, 87 S.Ct. 468, 17

L.Ed.2d 420 (1966).

Further, in Douglas v. Alabama, 380

U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934

(1965), while conceding the inferior

aspect of physical confrontation, the

en |

RAR foe nemte

App. 43

Long - 43

court stated' "Our cases construing the

Clause hold that a primary interest

secured by it is the right of cross-

examination; an adequate opportunity for

cross~examination may satisfy the clause

even in the absence of physical

confrontation." Id. at 418.

The commitment of the Supreme Court

to ensuring confrontation, or more

accurately the opportunity for cross-

examination, as guaranteed by the Sixth

Amendment, is particularly evident in

Pointer v. Texas, 380 U.S. 400, 85 S.Ct.

1065, 13 L.Ed.2d 923 (1965). In summary,

Pointer v. Texas, Id., imposed the Sixth

Amendment right of confrontation upon the

States by the operation of the Fourteenth

Amendment. Briefly, in Pointer the

App. 44

Long - 44

defendant and another were charged with

robbery; at an examining trial, the

complainant testified that the defendant

and his co-defendant robbed him at

gunpoint. Inasmuch as neither defendant

was repr:sented by counsel n effective

cross-examination occurred. The

defendants were later indicted; however,

prior to their trial the complaining

witness moved to California with no

intention of returning to Texas. With

this information” as a predicate, the

trial court admitted the complainant's

examining trial testimony into evidence

over the objection of the defendant.

Understandably, the defendant was

convicted.

App. 45

Long - 45

After this Court affirmed his

conviction the Supreme Court held that

"the Sixth Amendment's) right of an

accused to confront the witnesses against

him is likewise a fundamental right and

is made obligatory on the State by the

Fourteenth Amendment." Id. at 403.

Emphasizing the necessity of the

opportunity for cross-examination, the

Supreme Court simply concluded that under

the facts the defendant was not provided

with “an adequate opportunity to cross-

examine Phillips [the complainant ]

( o~ « Sie Be ORT Accordingly, the

defendant's conviction was reversed.

The inarguable recognition is that

the opportunity of cross-examination as

the principle laying at the foundation of

ue)

Long - 46

the Sixth Amendment right of

confrontation has enjoyed a consistent

commitment by the United States Supreme

Court. Quite recently, the Supreme Court

reiterated this perception of the

confrontation clause by commenting:

The opinions of this Court show

that the right of confrontation

is a trial right, designed to

prevent improper restrictions

on types of questions that

defense counsel may ask during

cross-examination.

eeeeestkee#eses#ssersk#treéerstfesenrseeeetekeeeeeetee#ese#e?#@

In short, the confrontation

clause only guarantees ‘an

opportunity for effective

cross~-examination, . . . e'

Pennsylvania =. Ritchie,

U.S. SeGee

L.Ed.2d , 40 Cr. Law Rept. 3277

(February 25, 1987).

But, physital confrontation has not

been ignored by the Supreme Court. For

Long - 47

example, a somewhat recent per curiam

opinion of the Court included these

rather clear comments:

This Court's Confrontation

Clause cases fall into two

broad categories' cases

involving the admission of out-

of-court statements and cases

involving restrictions imposed

by law or by the trial court on

the scope of cross-examination.

The first category reflects the

Court's longstanding recog-

nition that the “literal right

to ‘confront' the witness at

the time of trial forms’ the

core of the values furthered by

the Confrontation Clause."

Delaware v. Fensterer, 474 U.S.

106 S.Ct. 292, 294, 88 L.Ed.2d

15 (1985).

Understandably, there have been no

cases decided by the United States

Supreme Court that authorizes the

practice of that which the Sixth

Amendment's Right of Confrontation was

Long - 48

created to exclude' "depositions or ex

parte affidavits Mattox v. United States,

Supra.

Obviously, and as previously noted,

exceptions to this right, however, have

arisen and been approved by the Supreme

Court. For example, in California v.

Green, 399 U.S. 149, 90 S.Ct. 1930, 26

L.Ed.2d 489 (1970) the statements of a

witness that were made at a preliminary

hearing, then subject to cross-

examination, were admissible at the

defendant's trial as a prior inconsistent

Statement. In Mancusi v. Stubpds, 408

U.S. 204, 92 §.Ct. 2308, 33 L.Ed.2d 293

(1972) the Supreme Court held that

testimony subject to cross-examination at

App. 49

Long - 49

a previous trial was admissible when the

witness was out of the country.

In Ohio v. Roberts, 448 U.S. 56, 100

$.Ct. 2531, 65 L.Ed.2d 597 (1980), the

Supreme Court again visited the Sixth

Amendment and its Confrontation Clause

and although an exception was recognized

nonetheless emphasized its commitment to

the opportunity for cross-examination.

Factually, the defendant was arrested and

charged with forgery. At his preliminary

hearing he called as a witness the

complainant's daughter anticipating that

she could testify that she had authorized

his execution of the check. However, she

did not do this. Rather, she denied _ she

gave the check to the defendant.

App. 50

Long - 50

At his trial the defendant testified

as he had anticipated the complainant's

daughter would have, i.e., she had given

him her father's checkbook and had

permission to do so. During the interim

between the defendant's arrest and his

trial the complainant's daughter had

moved and her whereabouts were unknown.

As a result, the State offered a

transcript of the daughter's testimony

pursuant to a state statute authorizing

the admissibility of such evidence to

rebut the complainant's testimony. The

defendant claimed that his’ right of

confrontation was violated by admitting

such statement.

In reviewing this case the Supreme

Court again recognized the role of

}

]

App. 51

Long - 5l

confrontation in the Constitution by

observing that "{t)he Court has

emphasized that the confrontation clause

reflects a preference for face-to-face

confrontation at trial, and that a

primary interest, secured by [the Sixth

Amendment] is’ the right of cross-

examination.'" Id., 63. This

predisposition is based primarily upon

the principle that the absence of the

opportunity to test the truthfulness’) and

accuracy of a witness' testimony (cross-

examination) is "so important that the

absence of proper confrontation at trial

‘calls into ~ question the ultimate

integrity of the fact-finding process.'"

Id., 64. Continuing, the court noted,

however, that public interest may demand

4°)

Long - 52

deviations from a literal interpretation

of the language of the Sixth Amendment

and as a result of the public interest

exceptions are born and gradually evolve.

These exceptions, on the other hand, are

only applicable when established

guidelines are met. First, relative to

hearsay statements, a "rule of

necessity," Id., 65 is imposed. Thus,

even in those instances where cross-

examination has previously occurred "the

prosecution must either produce, or

demonstrate the unavailability of the

declarant whose statement it wishes to

use against the defendant." Id., before

the hearsay statement will be deemed

admissible. Second, if it is proven that

the witness is unavailable, "the Clause

ue,

Long - 53

[confrontation] countenances only hearsay

marked with such trustworthiness that

‘there is no material departure from the

reason of the general rule.'" Id. There

must, therefore be, as noted in

California Vv. Green, supra, some

“indicia of reliability,'" Id., before

the hearsay testimony will be admitted

into evidence, even if the witness is

unavailable.

In some instances, according to the

court, this indicia of reliability can be

assumed, provided "the evidence falls

within a firmly rooted [emphasis added]

hearsay exception." Id., 66. In other

instances the evidence must be excluded

"absent a showing of particularized

guarantees of trustworthiness." Id.

App. 54

Long - 54

Again citing and in essence relying

upon the principles announced in

California v. Green, supra, the Court

observes “that the opportunity to cross-

examine at the preliminary hearing--even

absent actual cross-examination--

satisfies the Confrontation Clause." Id.,

70. This, taken in conjunction with the

prosecution proving that the witness was

unavailable rendered the transcribed

testimony admissible.

In summary, Ohio v. Roberts, supra,

is supportive of the proposition that for

prior-testimony to be admissible there

must be proof that the witness was

unavailable and there had been a previous

opportunity for cross-examination. If,

however, the witness is available,

App. 55

Long - 55

irrespective of the "indicia of

reliability". otherwise present in her

statements, the “purposes behind the

confrontation requirement," California v.

Green, supra, are not achieved by

dispensing with the right of face-to-face

confrontation. Although the opportunity

for cross-examination is the dominant

concern of the confrontation clause, the

physical presence of an accuser is not so

subservient that it can be ignored. Nor,

will it be.

Ohio Vv. Roberts, supra, is

consistent with the Supreme Court's

comments in Barber v. Page, 390 U.S. 719,

88 s§.Ct. 1318, L.Baé.2¢ (1968). In

that case the Court held that the

preliminary hearing testimony of a co-

App. 56

Long - 56

defendant was inadmissible, irrespective

of a previous waiver of cross-

examination, because the State failed to

show the co-defendant was actually

unavailable.

The ratification of the federal Bill

of Rights was an exercise to limit the

power and authority of the federal

government. It was not the original

intent of the delegates to the second

Congress to create any limitation upon

the authority of the thirteen states to

regulate conduct within their borders.

The Fourteenth Amendment obviously

changed that. However, it was not until

Pointer v. Texas, supra, that the Sixth

Amendment was expressly applied to the

}

ADD. “37

Long - 57 as

States. Therefore, prior to 1968 and

Pointer Supra, the only source that

guaranteed confrontation to Texas'

defendants were those provisions in

Texas' several constitutions, most

recently that of 1876.

Nevertheless, the interpretation

given to Art. Tt, . $10 of the Texas

Constitution Closely - parallels the

evolution of the Sixth Amendment as

interpreted by the United States Supreme

Court. The reason that the guarantees

are so identifiable goes beyond the

Similar language, that is, the source of

the right of confrontation is the same'

English common law. Dissenting in- Cline

v. State, 36 S.W. 1099 (1896) (Dissenting

Opinion, 37 S.W. 722), Judge Henderson

Long - 58

Supports his opinion that examining trial

testimony is admissible when the witness

is dead by noting that in England such

evidence is admissible and the right of

confrontation "came to us as understood

and defined in England ... .” Id. at

724. He further noted that the right of

confrontation "is not, however, a stiff,

unbending rule, extending to any case

without exception, ......." Id at 726.

And, rather persuasively he continues:

I apprehend no _ one will dare

question at this day that when

the amendment to the

constitution of the United

States on this subject was

adopted, and when the states of

the Union adopted that part of

their constitutions requiring

‘in all criminal prosecutions

that the defendant be

confronted by the witnesses

against him,' it was done with

reference to and having in view

Long - 59

the rule on the subject +0

Great Britain. Ge 270

Contra: Cline _v. State, 36

S.W. 1099 (Tex.Cr.App. 1896)

{this is the majority opinion].

See also: Kemper v. State, 138 S.W. 1925

(Tex.Cr.App. 1925).

The Texas Confrontation Clause has

thus evolved to a great extent because of

the influence of the English common law.

This is evident by the Texas courts'

recognition of the superior role that the

opportunity for cross-examination plays

11 The issue regarding the

admissibility of examining trial

testimony has been on a merry-go-

round since Greenwood v. State, 35

Tex. 588 (1871), but resolved

(hopefully) as recently as 1980 in

Russell v. State, 604 S.W.2d 914

(Tex.Cr.App. 1980). A brief but

telling history of this issue is

related by Judge Clinton in footnote

5 of that opinion.

App. 60

Long - 60

in the right of confrontation. Garcia v.

State, 210 S.W.2d 574 (Tex.Cr.App.

1948). However, one should not simply

assume that the courts in reviewing

claims of violations of the Texas

Constitution's right of confrontation

were mere mimics of the common law. To

the contrary, the factual settings in

which it was claimed that one's

confrontation rights were abused

necessitated independent and at times

courageous opinions.

In 1948, for example, this Court was

Faced with deciding whether a Mexican

national, charged with murder, who could

not speak English, was entitled to an

interpreter under Art. I, §10 of our

Constitution. As absurd as it may now

RTE

wet

Slat Se ee

App. 61

Long - 61

appear the Court initially responded in

the negative. However, on the

Appellant's Motion for Rehearing the

Court stated:

[T]hey [defendants] are

entitled to be confronted by

the witnesses under the same

conditions as apply to all

others. Equal justice To)

requires. The constitutional

right of confrontation means

something more than merely

bringing the accused and the

witness face to face, it

embodies and carries with it

the valuable right of cross-

examination of the witness.

Garcia v. State supra at 580.

Accordingly, the Court imposed through

constitutional interpretation the

necessity of furnishing an interpreter to

a defendant who cannot speak English.

Indeed, consistent with the

principal purpose of the confrontation

App. 62

Long - 62

clause: "to prevent depositions or ex

parte affidavits," Mattox Vv. United

States, supra, as far back as 1887 the

old Court of Appeals reversed a

conviction that was obtained through the

use Of a telegram sent by a witness’ who

was not present in court. Chester v.

State, 5 S.W. 125 (Ct. of Apps. 1887).

Chronologically progressing, in Hays v.

State, 164 S.W. 841 (Tex.Cr.App. 1914)

this Court reversed a murder conviction

because the trial, court admitted into

evidence two written witness' statements

as Original evidence. The Court tersely

stated: "Appellant was entitled to be

confronted by these witnesses and have

them testify to the facts." Id. at 842.

Later, in Newton v. State, 292 S.W. 247

«a

;

{

ue)

ro)

Long - 63

(Tex.Cr.App. 1927) another conviction

was reversed because of the erroneous use

of written statements when there was no

suggestion that the witness was

unavailable.

Eleven years later in Walding v.

State, 120 S.W.2d 1052 (Tex.Cr.App.

1938) it was decided that because of the

defendant's right of confrontation the

State could not prove the _ essential

elements of the old adultery statute

(Penal Code 1925, Art. 500) by

introducing into evidence the inculpatory

ex parte affidavit of the allegedly

involved woman. See also' Estes Vv.

State, 283 S.W.2d 52 (Tex.Cr.App. 1955).

Similar to the United States Supreme

Court, this Court has also recognized and

App. 64

Long - 64

continues to approve exceptions to the

right of face-to-face confrontation. For

example, the regularly maintained

business record exception to the hearsay

rule is applicable to criminal cases.

Phillips v. State, 538 S.W.2d 116

(Tex.Cr.App. 1976). But even in the case

of a well-recognized exception to the

hearsay rule this Court has mandated that

every case be considered on its _ own

merits. In Porter v. State, 578 S.W.2d

742 (Tex.Cr.App. 1979), appeal after

remand, 623 S.W.2d 374 (Tex.Cr.App.

1981), cert. denied 102 S.Ct. 2046 (1982)

the Court conceded that the Business

Records Act, as a recognized exception to

the hearsay rule, was applicable to

Criminal cases. But, the Court imposed

—

App. 65

Long - 65

the indicia of reliability consideration

upon the Business Records Act by stating:

"It must be determined in each instance

whether the particular record is of such

trustworthiness as to guarantee the same

protection provided by the constitutional

rights of confrontation and cross-

examination." Id., 747. Accord: Coulter

v. State, 494 S.W.2d 876 (Tex.Cr.App.

1973).

This Court's imposition of the

"indicia of reliability" standard upon a

well-established exception to the hearsay

rule is simply indicative of our

determination that intrusions upon a

defendant's state guaranteed right of

confrontation must be considered on a

case-by-case basis to ensure that the

App. 66

Long - 66

"integrity of the fact-finding process,"

Chambers v. Mississippi, 410 U.S. 284,

295, 93 S.Ct. 10 38, 35 L.Ed.2d 297

(1973), is constitutionally maintained.

VI.

Focusing our attention on the

challenged statute, Art. 38.071, §2,

V.A.C.C.P., provides as follows:

Sec. 2. (a) The recording of

an oral statement of the child

made before the proceeding

begins is admissible into

evidence if:

(1) no attorney for either party was

present when the statement was made;

(2) the recording is both visual and

aural and is recorded on film or

videotape or by other electronic

means;

(3) the recording equipment was

capable of making an accurate

recording, the operator of the

equipment was competent, and the

Long - 67

recording is accurate and has not

been altered;

(4) the statement was not made iin

response to questioning calculated

to lead the child to make a

particular statement;

(5) every. voice on the recording is

identified;

(6) the person conducting the

interview of the child in the record

is present at the proceeding and

available to testify or be cross-

examined by either party;

(7) the defendant or the attorney

for the defendant is afforded an

opportunity to view the recording

before it is offered into evidence;

and

(8) the child is, available to

testify.

As is patently obvious, this statute

basically authorizes a Significant

departure from established trial

procedure by dispensing with the

requirement that the prosecution develop

App. 68

Long - 68

its case in chief in the courtroom, in

the presence of the judge, jury, and the

defendant. i it a substantial

modification of recognized trial

procedure the motive that produced such

alteration of established procedures was

Similarly substantial and well

intended. 22 According to Senator Hugh

12 Numerous other states have enacted

Statutes that authorize videotape

testimony in sexual abuse of

children prosecutions. Since the

various states' legislatures are

continuously active in this area the

following list may be incomplete:

Alabama‘ 1985 Ala. Acts No. 85-

743; Alaska’ Alaska Stat. §12.45.047

(1984); Arizona’ Ariz. Rev. Stat.

Ann. §13-4235 (1985); Arkansas'

Ark. Stat. Ann. §§43-2035 to 2037

(1985); California: Cal. Penal

Code §1346 (West 1985); Colorado’

Colo. Rev. Stat. §18-3-413 (1984);

Connecticut’ 1985 Conn. Acts 85-587

Jan. Sess.; Delaware’ Del. Code Ann.

(continued on next page)

App. 69

Long - 69

Parmer (D-Fort Worth), sponsor of S.B.

836 (Art. 38.071, supra), the bill was in

response to increased incidents of

(continued from prior page)

tit. ll, §3511 (1985); Florida’ Fla.

Stat. §90.90 (West 1984); Act of

May 30, 1985, ch. 85-53, §92.53,

Fla. Laws 140, 146 (redesignated

from §90.90); Kansas: Kan. S.B.

No. 107, 1985 Regular Session;

Kentucky’ Ky. Rev. Stat. §421.350

(1984); Maine: Me. Rev. Stat.

Ann. tit. 15 §1205 (1985);

Missouri’ H.R. 366, 83rd Gen.

Assembly lst Sess., 1985 Mo. Legis.

Service 20, 61-69 (Vernon); Montana’

Mont. Code Ann. § 46-15-401 to 403

(1977); Nevada: Act of June 3,

1985, ch. 462, 1985 Nev. Stat.

1423; New Hampshire: N.H. Rev.

Stat. Ann. §517:l13-a (1985), New

Mexico: N.M. Stat ,Ann., 30-9-17

(1984); New York: N.Y. Crim. Proc.

Law §190.32 1Consol. 1984);

Oklahoma: Okla Stat. Ann. tit 22,

§753 (West 1984); Rhode Island' R.I.

Gen. Laws §11-37-13.1 (1985); South

Dakota’ §.D. Codified Laws Ann.

§23A-12-9 (1985); Utah' Utah Code

Ann. §77-35-15.5 (1985); Vermont'

(continued on next page)

App. 70

Long - 70

reported sexual abuse of children and the

"many, many times . . .," Testimony,

April 19, 1983, the child victim is

emotionally and physically unable to

testify. S.B. 836, according to Senator

Parmer “attempts to address that problem

-" Id. The intent of the bill in

its initial form was to preserve the

statement of a child sexual abuse victim,

provide a procedural means for it to

later be admissible in evidence and

collaterally create a procedure that

accommodates the absence of the victim

from the courtroom.

(continued from prior page)

V@. R. Evid. 807; Wisconsin: Wis.

Stat. §967.04(7) (1985).

App. 71

Long - 71

Apparent to Senator Parmer and other

Supporters of the bill was the

possibility that the bill in its original

form intruded upon a defendant's right of

confrontation. In an effort to alleviate

such a challenge an amendment to the bill

was added. It provides:

If the electronic recording of

the oral statement of a child

is admitted into evidence under

this section, either party may

call the child to testify and

the opposing party may cross-

examine the child. Art.

38.071, §2(b), supra.

In other words, the intent of the

bill was to provide the state a means of

introducing the statement of a child

accusing a defendant of sexual abuse

without the necessity of calling the

child as a witness. This was supposed to

App. 72

Long - 72

have protected the child from the trauma

of confronting the abuser in an

intimidating courtroom atmosphere.

However, the bill includes a provision

that seems to nullify that portion of the

bill that protects the child from the

courtroom by requiring the child to

testify in the courtroom at the

insistence of either the State or the

defendant. Thus, the purpose of the

Statute, at least in part, is subverted

by the operation of the statute.

A divergence from face-to-face

confrontation has received judicial

approval in only two instances: first,

when the exception is a well-recognized

exception to the hearsay rule

(understandably, the State, does not

Long - 73

argue or even suggest that is a basis for

approving the statute). The second

instance in which an infringement on

literal confrontation is -judicially

condoned is when public necessity is — —_

evident and that is coupled with the

testimony having an indicia of

reliability. In this context necessity

Simply means that the witness is

unavailable to testify, Ohio v. Roberts,

Supra, and indicia of reliability exists

when a prior opportunity for cross-

examination has occurred. California v.

Green, supra.

As noted, under Art. 38.071, supra,

necessity, in the sense of

unavailability, is obviously not: -@

consideration and the idea of acquiring

ue)

Long - 74

the testimony in a "neutral, safe

environment .. .," Ann French Clark,

Senate Jurisprudence Committee, April 19,

1983, absent cross-examination is

certainly not indicative of the testimony

having an indicia of reliability. This

is so because it was recognized long ago

that cross-examination is a defendant's

opportunity of "not only testing the

recollection [of the witness] and sifting

through 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 testimony whether he is worthy of

belief." Mattox v. United States, supra

at 242.

ue)

Lene ~< 75

Although the electronic advances

that this statute attempts to utilize

operates to make this a case without

state precedents, this is not the first

occasion this Court has had to weigh the

rights of a child victim with those of

the defendant's right of confrontation.

In Vasquez v. State, 167 S.W.2d 1037

(Tex.Cr.App. 1942) the defendant was

convicted of raping an eight-year-old

child and was given the death penalty.

The principal evidence against the

defendant was not the child's testimony

because she was not called as a witness.

The child's grandmother was called as a

witness and testified to the child's

condition, appearance, and what the child

told her the defendant had done to her.

App. 76

Long - 76

Interestingly, the Court reviewed

the failure of the child to testify not

only as a violation of the defendant's

right of confrontation but also in the

nature of insufficient evidence.

Dispensing with the latter consideration,

which is obviously irrelevant to our

present concern, the Court noted that:

The little girl was nervous and

excited and this was’ relied

upon as a reason for the State

not offering her as a witness,

though she was an_ unusually

smart child. We do not believe

that it is sufficient under the

facts stated to defeat the

right of the accused to be

confronted by the witness

against him. Vasquez v. State,

Id. at 1032.

What the court condemned in Vasquez,

Supra, is essentially what Art. 38.071,

—

App. 77

Long - 77

§2, supra, was enacted to accomplish--

except in more pervasive terms.

The State urges the Court to approve

the adeipsibility of the videotape

statute on the basis of a compelling

state interest--the protection of

children. We do not question the

explosive number of child sexual

abuse cases that have beent3

reported

over the last several years. Nor, do we

doubt that in some instances trauma to

13 See: State v. Myatt, 697 P.2d 836

(Kan. 1985) citing the alarming

statistical information detailed in

Note, "A Comprehensive Approach to

Child !!earsay Statements i@ Sex

Abuse Cases," @3 Colum. L. Rev.

inf5 (1983); McAllister, "Article

38.071 of the Texas Code of Criminal

Procedure' A Legislative Response to

the Needs of Children in the

Courtroom," 18 St. Mary's L..

Journal, 279 (1986.-.}.

Long - 78

a child does result by the chilal4

testifying in open court in the presence

of the accused. The literature and what

little statistical evidence is available

Support such assertions.

However, prior to taking the massive

step of suspending a constitutional right

by impressing an exception upon it on the

basis of a compelling state interest

there must be evidence that the interest

of the public in a specific case

substantially outweighs the established

constitutional right of the defendant.

As the United States Supreme Court has

stated: although the right of

14 Parker, "The Rights of Child

Witnesses: Is the Court a Protector

Or Perpetrator?,” 17 New Enq. UL.

Rev. 643 (1982).

TTT

ETT

App. 79

Long - 79

confrontation is not absolute, and can be

infringed upon when necessary, before

doing so the "'integrity of the fact

finding process' requires that the

competing interests be closely examined."

Chambers v. Mississippi, supra. While it

is true that the action of the

legislature in enacting the videotape

statute was an effort to achieve a

legitimate end, the protection of child

victims as witnesses, it is equally true

that a legitimate end in and of itself

Can never be an acceptable motive for

diminishing constitutional rights. g

such a basis were to be condoned then the

principle of constitutional rule would be

subservient to the will of the

legislature.

Long - 80

Since Marbury v. Madison, 5 U.S.

137, 1 Cranch 137, 2 L.Ed. 60 (1803) the

authority of the courts to review

legislation in its relation to

constitutional dictates is axiomatic.

However, this is an area that courts are

understandably reluctant to exercise

their authority. Notwithstanding our

concession that the legislature's motives

in enacting Art. 38.071, §2, supra were

vaiid, it is a basic principle of

constitutional review that the wisdom and

reasonableness of legislation is

something that will not be considered.

See' 12 Tex.Jur.3rd Constitutional Law

§30 (1981). What will be considered is

whether the legislation is violative of

any federal Or state constitutional

App. 81

Long - 81

provision. There is no question that at

times and under certain circumstances

legislation that intrudes upon

fundamental rights is acceptable.

Mattox v. United States, supra. When

legislation does limit these fundamental

rights such acts can be justified only by

a compelling state interest. Roe_ v.

Wade, 410 U.S. 113, 93 S.Ct. 705, 35

L.Ed.2d 147 (1973). Further, a statute

that encroaches upon a fundamental right,

even if there is a compelling state

interest supporting it, “must be narrowly

drawn to express only the legitimate

state interests at stake." Id. at 156.

In Shelton v. Tucker, 364 U.S. 479,

81 S.Ct. 247, 5 L.Ed.2d 231 (1960) the

Supreme Court declared unconstitutional

App. 82

Long - 82

an Arkansas statute that required all

school teachers, as a condition of

employment, to annually file a sworn

statement of every Organization the

teacher belonged or contributed to over

the preceding five years. Similar to our

conceding the legitimate interest of the

legislature in the present case, the

Supreme Court conceded that a state has a

legitimate interest in investigating the

competence and fitness of teachers.

However, according to the Court this

Statute went too far. Accordingly, it

stated:

{E]ven though the governmental

purpose pe legitimate and

substantial, that purpose

cannot be pursued by means that

broadly stifle fundamental

personai liberties when the end

can be more narrowly achieved.

ee ee eee ee eee le |

App. 83

Long - 83

The breadth of legislative

abridgment must be viewed in

the light of less drastic means

for achieving the same basic

purpose. Id., 252.

Legitimate legislative action will

not survive a constitutional scrutiny if

it utilizes a means that is unnecessarily

broad in its invasion of fundamental

rights. Griswold v. Connecticut, 381

U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510

(1965).

Unquestionably in specific cases a

compelling state interest will exist toa

degree sufficient to create @ necessity

that requires a diminution of a

defendant's right of confrontation. But,

this necessity must be the _ practiced

equivalent of a witness' unavailability.

In such a case the Sixth Amendment and

App. 84

Long - 84

Art. I, §10 of the Texas Constitution

could bend. But a statute that is not

individualized to a particular

prosecution and on its face and in its

operation assumes that confrontation in

a particular class of cases will

produce unnecessary trauma is

constitutionally unacceptable.

In Globe Newspaper Co. v. Superior

Court, 457 U.S. 596, 102 §8.Ct. 2613, 73

L.Ed.2d 248 (1982) the Supreme Court

reviewed the constitutional propriety

of a Massachusetts statute that

required, "under all [emphasis added]

circumstances, the exclusion of the press

and general public during the testimony

of a minor victim in a sex-offense [sic]

trial.” Id. at 602. Massachusetts

App. 85

Long - 85

claimed, similar to the State's argument

in the present case, that the law was

designed to facilitate the reporting of

seek offenses involving minors’ and

protect the minor complainant from “undue

psychological harm at trial." Id. at

600. According to the Court, when a

constitutional right is being adversely

affected by legislation, e.g., the right

of the public's access to jury trials

under the First Amendment, then "it must

be shown that the denial is

necessitated by a compelling

governmental interest, and is narrowly

tailored to serve that interest." Id. at

607. The Court agreed, as we do herein,

that protecting a minor sexual assault

victim from undue trauma is a compelling

2»

4°)

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Long - 86

state interest. However, the Court

identified the deficiency in the statute

by stating:

But as compelling as that

interest is, it does not

justify a mandatory closure

rule, for it is clear that the

Circumstances of the particular

case may affect the

Significance of the interest a

trial court can determine on a

case-by-case basis whether

closure is necessary to protect

the welfare of the minor

victim. Id. 608.

Allen v. State, 700 S.W.2d 924

(Tex.Cr.App. 1985) was concerned with

whether the rape shield laws (§22.065,

V.A.C.C.P.), and their necessary

limitation on cross-examination violated

a defendant's right of confrontation. In

an opinion by Presiding Judge Onion the

App. 87

Long - 87

Court rejected the defendant's appeal by

pertinently stating:

Thus a statute that purports to

prohibit completely the

introduction of the victim's

consensual sexual activity with

persons other than the defendant

is unconstitutional unless given

a judicial gloss requiring a

hearing out of the jury's

presence so that the defendant,

upon motion, may be given an

opportunity to demonstrate that

due process requires the

admission of such evidence

because probative value in the

context of that particular case

[emphasis added] outweighs its

prejudicial effect on the

prosecutrix. Id. at 932.

What makes these cases instructive to the

present issue is the recognition by the

Courts that each case had to be judged on

its own merits, otherwise the statute

would be unconstitutional.

App. 88

Long - 88

This is the constitutional

deficiency that plagues Art. 38.071,

supra. It is simply too broad in its

reach ki Support the infringement that it

endorses and if a reasonable alternative

and lesser intrusive procedure is

available that would satisfactorily

accomplish the legislative purpose then

the offending statute must be viewed in

that light. United States v. Jackson,

390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d

138 (1968).

The necessity of approaching each

case cautiously and considering the

effect of testifying on the victim in

each case rather than all cases as a

class is readily apparent in this’ case.

Although the videotaped interview of M

}

ue)

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Long - 89

Pp .. was played to the jury the

State elected to call the child to

testify in open court, in the presence of

the accused. Three things immediately

come to mind when reviewing the State's

action. One, the prosecutors had no

concern for the victim and were merely

interested in effectively prosecuting the

appellant. Two, the prosecutors were

convinced that the child would suffer no

undue trauma from her testimony and _ she

could testify effectively. Or, three, it

is possible that they wanted to ensure

the appellant had the opportunity to

question the witness. Irrespective of

the concern, or possibly lack thereof,

the purpose of the statute was not

os)

ue)

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Long - 90

achieved except to the extent of

admitting the videotape.

Even when the effect of

confrontation on a child can be classed

as unavailablel? it is still necessary

that the recorded testimony carry the

necessary indicia of reliability. And,

this can only be achieved by giving the

accused the opportunity for cross-

examination. 1®

Irrespective of the

agent of a victim, without at least the

opportunity for cross-examination the

15 See: Jernigan v. State, 589 S.W.2d

661 -(1973S)3: Art. 39.kds Vebslslar«

16 Whether such opportunity for cross-

examination requires physical

presence of both the child victim

and the accused or just the attorney

representing the accused is not’ the

issue in this case; therefore, we

express no opinion in this regard.

4°)

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Long - 91

reliability of the truth finding process

must be questioned. Ohio v. Roberts,

Supra.

The State also predicates its

Support of Art. 38.071, supra upon the

United States Supreme Court decision in

California v. Green, supra. In Green

the Supreme Court basically considered

the application of the Confrontation

Cle:se of the Sixth Amendment to the

admissibility of prior inconsistent

statements proffered as substantive

evidence under a section of the

California Evidence Code. Green, the

defendant, was convicted of supplying

marihuana to a minor. At a preliminary

hearing the minor identified the

defendant as his’ supplier. At trial,

ue)

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Long - 92

however, the child witness was

particularly evasive, claiming he could

not remember who gave him the marihuana

because he was under the influence of

drugs at the time.

Over the defendant's objection, the

trial court admitted the witness' prior

inconsistent statements. The California

Supreme Court reversed the defendant's

conviction because admitting the prior

inconsistent statement violated the

defendant's right of confrontation. The

United States Supreme Court, however,

affirmed the conviction finding no Sixth

Amendment violations in the admissibility

of the prior inconsistent statement.

The State claims that the issue in

this case and that in Green are

ue)

se)

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Long - 93

principally the same. They summarize the

question as: "given the subsequent

opportunity to confront the witness [as

authorized by Art. 38.071, §2(b)],

whether any confrontation problem exists

at all. In other words, the State claims

that the opportunity of the defendant to

call the child to testify nullifies the

question of confrontation.

The vital and significant difference

between the facts of Green and the

content of Art. 38.071, §2, supra, is:

the defendant in Green _ had the

opportunity to cross-examine the minor

witness at the preliminary hearing or

contemporaneous with his statement. The

Court observed:

App. 94

Long - 94

We also think that Porter's

preliminary hearing testimony

was admissible as far as_ the

constitution is concerned

wholly apart from the question

of whether respondent had an

effective opportunity for

confrontation at the subsequent

trial. For Porter's statement

at the preliminary

hearing had already been given

under circumstances closely

approximating those that

Surround the typical trial.

Porter was under oath;

respondent was represented by

counsel--the same counsel in

fact who later represented him

at the trial; respondent had

every opportunity to cross-

examine Porter as to his

statement; and the proceedings

were conducted before a

judicial tribunal, equipped to

provide a judicial record of

the hearings.

In the present case

respondent's counsel does not

appear to have been

Significantly limited in any

way in the scope or nature of

his cross-examination of the

witness Porter at the

preliminary hearing. If Porter

4 @)

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Long - 95

had died or was otherwise

unavailable, the Confrontation

Clause would not have been

violated by admitting his

testimony given at the

preliminary hearing--the right

of cross-examination then

afforded provides substantial

compliance with the purposes

behind the confrontation

requirement, as long as_ the

declarant's inability to give

live testimony is in no way the

fault of the State.

As in the case where the

witness is physically

unproducible, the State here

has made every effort to

introduce its evidence through

the live testimony of the

witness; it produced Porter at

trial, swore him as a witness,

and tendered him for cross-

examination. Whether Porter

then testified in a manner

consistent or inconsistent with

his preliminary hearing

testimony, claimed a loss of

memory, claimed his privilege

against compulsory self-

incrimination or simply refused

to answer, nothing in the

Confrontation Clause prohibited

the State from also relying on

App

Long - 96

his prior testimony to prove

its case against Green.

What was present in Green (opportunity

for cross-examination when statement was

made) and absent in Art. 38.071, §2,

supra is their most significant

contrasting feature. Under Art. 38.071,

supra the ex parte statement (albeit it

is videotaped) is expressly taken without

the defendant being present or

represented. Whereas, in Green the

opportunity for contemporaneous’ cross-

examination was extant and occurred.

VII.

Art. 38.071 §2, supra is also

violative of the due process clause of

the Fourteenth Amendment = and the due

course of law provisions in Art. I,

—-- _—

App. 97

Long - 97

§19 of the Texas Constitution.?/

Historically, the due course of law

clause in Art. I §19 of the Texas

Constitution has been equated and deemed

synonymous with the guarantee of due

process under the Fourteenth Amendment.

Mahee v. McDonald, 175 S.W. 676 (Tex.

1915). As recent as 1982, however, the

United States Supreme Court commented

that Art. I, §19, supra, "is different

from, and arguably significantly broader

than e ~- ef" City of Mesquite vy.

Aladdin's Castle, Inc., 455 U.S. 283,

293, 102 §.Ct. 1070, 71 L.Ed.2d 152

(1982), the comparable Fourteenth

Amendment. Such an expansive distinction

17 Due course of law will be referred

to hereafter as due process.

App. 98

Long - 98

is not necessary to this opinion. What

is necessary and what one must keep in

mind is that the rights guaranteed to be

protected from deprivation are identical:

life, liberty, and property.

Due process does not lend itself to

Simple, concise definitions. In its most

basic sense due process is the impediment

that is constitutionally imposed on

governmental conduct that offends our

fundamental rights. Relative to the

protection of one's’ liberty: "(t]he

essential guarantee of the due process

Clauses is that the government may not

imprison or otherwise physically restrain

a person except in accordance with fair

procedures." Rotunda, et al, Treatise on

Constitutional Law: Substance and

App. 99

Long - 99

Procedure (West Publishing Co.: St.

Paul, Minn., 1986), §17.4, p. 213. In

other words, due process is in itself

essentially the same as fairness. Or, at

the very least, due process is the

vehicle used to arrive at fairness

thereby protecting our Fundamental

rights. Accordingly, "a fair trial in a

fair tribunal is a basic requirement of

due process." In Re Murchison, 349 U.S.

133, 75 S.Ct. 623, 99 L.Ed. 942 (1965) at

136. If legislation alters the essential

fairness f a trial then a due process

violation is necessarily implicated. In

Estelle v. Williams, 425 U.S. 501, 96

S.Ct. 1691, 48 L.Ed.2d 126 (1975) it was

specifically stated that "[t]he right to

a fair trial is a fundamental liberty

App. 100

Long - 100

secured by the Fourteenth Amendment." Id.

at 1692. Then, after emphasizing the

superior role the presumption of

innocence plays in our criminal justice

system, the court continued:

To implement the presumption

[of innocence], courts must be

alert to factors that may

undermine the fairness of the

fact-finding process. In the

administration of criminal

justice, courts must carefully

guard against dilution of the

principle that guilt is to be

established by probative

evidence and beyond a

reasonable doubt. Id. at 1693.

The opinion continues with

guidelines for determining whether a

particular procedure diminishes fairness

and is thus violative of due process.

The court commented:

Long - 101

But this Court has left no

doubt that the probability of

deleterious effects on

fundamental rights calls for

close scrutiny . .. [citations

omitted] Courts must do the

best they can to evaluate the

likely effects of a particular

procedure, based on reason,

principle, and common human

experience. Id.

Consequently, in a criminal

prosecution, when viewing legislatively

authorized procedures’ that could be

detrimental to one's fundamental rights,

i.e., "a fair trial in a fair tribunal

‘ca In Re Murchison, supra, the

legislation must be closely scrutinized.

Estelle _ vy. Williams, supra. Such an

examination must be “based on reason,

principle, and common human experience."

Id.

App. 102

Long - 102

Scrutinizing Art. 38.071, §2,

Supra, and applying the predicates of

consideration as suggested in Estelle v.

Williams, Id., it is evident that on its

face Art. 38.071, §2 imposes upon the

defendant a constitutionally unacceptable

burden. The courts of this state and

country have never had to confront and

review a trial procedure that requires

the defendant to call as a witness his

accuser if he wants to question the

witness. Doing so places the defendant

in the proverbial Catch-22' call _ the

complainant and be able to question the

witness; or alternatively, decline to do

so and thereby waive the opportunity to

cross-examine the witness. Either way

the defendant is placed at a distinct and

App. 103

Long - 103

undue disadvantage. Conversely, the

prosecution is’ placed in the unique and

substantially advantageous position of

being able to in essence present its

evidence, then wait r the defendant’ to

call the complainan., thereby allowing

the State to repeat the videotaped

statement. Or, by not calling the

witness fail to contiovert the videotape

statement. It must be continually

remembered that despite the morally and

socially reprehensible nature of this

type of offense the defendant must still

be presumed to be innocent. "[{R]Jeason,

principle, and common human experience,"

Id., dictate that a jury will respond

negatively to a defendant compelling a

child witness to testify after they have

ue)

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Long - 104

already seen the videotape of the child's

allegations. The possible, if not

probable, reaction of the jury to a trial

incident of this nature would be

unduly prejudicial to the

defendant.18

Prejudice, to this extent,

will create a risk that the entire

proceedings were fundamentally unfair. A

risk of this nature does not comport with

the concept of due process. In Lee ¥,

Illinois, 476 U.S. 106 S.Ct.

2056, 90 L.Ed.2d 514 (1986) the Supreme

Court was concerned with both due process

and confrontation violations by an

18 See: Graham, "Indicia of

Reliability and Face to Face

Confrontation' Emerging Issues in

Child Sexual Abuse Prosecutions,” 40

U. Miami L. Rev. 19 (1986).

App. 105

Long - 105

infringement upon the right of

confrontation when a non-testifying co-

defendant's confession was admitted into

evidence and considered as substantive

evidence of the defendant's guilt

Noting initially the historical unanimity

of the court in its commitment to the

defendant's right of confrontation and

cross-examination, the Court recognized

the overlapping due process issue when it

observed that the right of confrontation

and cross-examination "'is an essential

and fundamental requirement for the kind

of fair trial which is this country's

constitutional goal.'" Id. at 2062.

The Court continues and pertinently

states:

Long - 106

On one level, the right to

confront and cross-examine

adverse witnesses contributes

to the establishment of- a

system of criminal justice in

which the perception as well as

the reality of fairness

prevails. To foster such a

system, the Constitution

provides certain safeguards to

promote to the greatest

possible degree society's

interest in having the accused

and the accuser engage in an

open and even contest in a

public trial. The

Confrontation Clause advances

these goals by ensuring that

convictions will not be based

on the charges of unseen and

unknown--and hence

unchallengeable--individuals.

Id. at 2062.

Under Art. 38.071 §2, supra the

essentia state's witness, the

complainant, will be what due process and

the confrontation clause endeavor to

prevent’ "unseen" and "unchallengeable”

witnesses. Id. Unless, of course the

App. 107

Long - 107

defendant takes the step of calling to

testify the essential prosecution

witnesses to testify. Nowhere and at no

time in Anglo-American jurisprudence has

an accused ever been required to call as

a witness the accuser in order to enjoy

the fundamental right fe) £ cross-

examination. That is, until Art. 38.071

§2, supra. It is an illogical as well as

unconstitutional scheme to place a

defendant, who, again, must be presumed

innocent, in the untenable position of

either requiring the child to testify and

thereby run the very real risk of

incurring the wrath of the jury or forgo

the right to invoke “'the greatest legal

engine ever invented for the discovery of

App. 108

Long - 108

truth,'" California v. Green, supra,--

cross-examination.

It must also be noted that the

public's response to the unfortunate

victims of sexual child abuse has been

and continues to be great.+9 The

protective attitude of the legislatures

and the courts to child victims is

indicative of a public policy that

understandably leans quite heavily in

favor of the child empathy for the plight

of the child victims.?9 So long as the

7 Gene. Be, 33;

20 See: Buckley, "Introduction'

Background and Review of Child

Sexua] Abuse: Law Reforms in the

Mid-1¢60s, " 40 U. Miami L. Rev. 5

(1985); Note, "The Testimony of

Child Victims in Sex Abuse

Prosecutions: Two Legislative

(continued on next page)

ue)

Long - 109

victim remains within the confines of

constitutionally protected rights’ then

the attitude and resulting actions are

both laudable and appropriate. It is

patently unfair, however, in both a

practical and due process sense, to

require a defendant to offend public

policy and compel a child victim to

testify in open court, or, as_ before,

effectively, abandon cross-examination.

It is a violation of due process to

statutorily impose upon an accused person

the necessity of electing between

violating public policy interests and

demanding a constitutional right. To

(continued from prior page)

Innovations," 98 Harv. L. Rev. 806

(1985).

App. 110

Long - 110

do otherwise would constitute a

noticeable intrusion upon our. concept

wie a fair trial which is’ this

country's goal,'" Lee Vv. Illinois,

Supra, and would generate doubt as to the

"ultimate integrity of the fact finding

process.'" Ohio Vv. Roberts, supra.

Authorizing a trial procedure that

seemingly in itself defeats the purpose

of the statute, Art. 38.071 §2, supra

does authorize the State to call the

child to testify, which, as previously

noted, was what occurred in the present

case. This and the defendant's cross-

examination, according to the State,

Satisfies the problem bé@cause the

defendant did get face-to-face

confrontation. Such contention is

Long - lll

persuasive until one takes notice of the

collateral procedural consequences of

such action.

As stated, in the present case, the

State called the complainant to testify

as a rebuttal witness. However, her

testimony was simply repetitious of her

videotape statement and, as the

appellant's attorney observed in his

objection, not actually rebuttal. 21

21 In this state rebuttal testimony

does not necessarily have to be

directed against newly elicited

evidence. Lackey Vv. State 638

S.W.2d 439 (Tex.Cr.App. 1982).

Allowing new evidence to be

introduced as rebuttal (after the

opposing party has_ rested in its

presentation of evidence) is

discretionary with the court and is

permissible consistent with the

administration of justice. Id.

Whether the same can be said for

(continued on next page)

App. 112

Long - 112

And, as such it was unquestionably

bolstering of an unimpeached witness.

Pless V. State, 576 S.W.2d 83

(Tex.Cr.App. 1978); Cf. Hulin v. State,

438 S.W.2d 551 (Tex.Cr.App. 1969). So,

before the appellant was able to cross-

examine the child the State introduced

into evidence the ex parte, recorded,

sterile, unencumbered testimony of the

complainant (videotape) and later live

testimony that was simply a reiteration

of the incidents that were detailed in

the videotape session. Due process does

(continued from prior page)

purely repetitious evidence is

doubtful. But, the admissibility of

purely repetitious evidence is not

fundamental error. Douthit Ve

State, 482 S.W.2d 155 (Tex.Cr.App.

1972).

App. 113

Long - 113

not authorize legislative bodies to alter

accepted trial procedures to the extent

that the prosecution can enjoy such a

benefit at the expense of the defendant.

It is just, quite simply, unfair. The

procedure that permits the prosecution to

in essence introduce their case-in-chief

twice, and thereby bolster their version

of the facts unconstitutionally alters

the system to the extent that both "the

perception as well as the reality of

fairness . ..," Id. are exchanged for

the advantage integral to the duplication

of evidence. Due process will not

condone such a monumental abuse.

This opinion is contrary to the

decisions courts in other states have

reached under remotely Similar

Long - 114

circumstances. That, however, is what is

significant' the circumstances were just

similar and not identical. The Arkansas

videotape statute and the Arkansas

Supreme Court's decision regarding that

statute are instructively supportive of

Our opinion. According to Ark. Stat.

Ann. §43-2036 (Supp. 1985), in summary,

a videotape deposition of a child under

the age of seventeen years may be ordered

by the trial court in response to a

motion by the state, provided "good cause

- « ef" Id., is shown and opposing

counsel is notified. Further, the

deposition is to be taken “before the

judge in chambers in the presence of the

prosecuting attorney, the defendant and

his attorneys." Id.

’

Long - 115

Noting, among other things, that

their statute “requires face-to-face

confrontation between the victim, the

defendant and his attorney at the time

the deposition is taken, and provides the

opportunity for cross-examination of the

victim by the defendant," McGuire _ v.

State, 706 S.W.2d 360 (Ark. 1986), the

Arkansas Supreme Court understandably

declared that state's videotape statute

constitutional.

The Supreme Court of South Carolina

also ruled that their videotape statute

was constitutional. However, the South

Carolina statute they reviewed, s.C.

Code Ann. §16-3-1530(6) (1985), was

restricted to specific cases and

special..witnesses, i.e., children, the

Long - 116

elderly and handicapped people. It

requires a motion and court order.

Further, the defendant must be present at

the deposition, but out of the victim's

vision, and cross-examination is

permitted by the defendant's attorney

contemporaneous with the statement.

State v. Cooper, 353 S.E.2d 451 (S.C.

1987).

In State v. Sheppard, 484 A.2d 1330

(N.J. 1984), the court granted the

State's motion for permission to

videotape a child witness' testimony

prior to the trial. In their excellent

opinion the Superior Court reviewed cases

from other states and emphasized that the

means they were authorizing required that

"the defendant as well as the judge, the

a =

a i ans

Long - 117

jury, and the [trial] spectators, will

see and hear her [the child] clearly."

RG.” @8> 23434 And, most significantly,

"[a]dequate opportunity for cross-

examination will be provided." Id.

Similar court decisions are found in

State v. Vigil, 711 P.2d 28 (N.M. App.

1985); People v. Johnson, 497 N.E.2d 308

(Till. App. 5 Dist. 1986); State Vv.

Melendez, 661 P.2d 654 (Ariz. App.

1982).

We have discovered no case from any

jurisdiction that is exactly in point.

The statutes most comparable to Art.

38.071 §2, supra are those in Louisiana

and Kentucky. Because of procedural

defects Louisiana courts have yet to

confront the confrontation issue

Long - 118

directly, see: State v. Guidroy, 498

S.D.2d 108 (La. Ct. App. 5th Cir. 1986);

State v. Interest of R.C., Jr., 494

SO.2d 1350 (La. Ct. App. 2nd Cir. 1986).

Very recently, the Kentucky Supreme

Court, however, declared their .dentical

statute unconstitutional. The basis’ for

their decision was not that it violated

confrontation--that was not discussed.

K.R.S. 421.350 was declared

unconstitutional because it permitted the

testimony of a child witness who had not

been declared competent by the trial

judge an..d did not require that the

child take the oath. This, according to

the court, constituted a violation of the

separation of powers doctrine in that it

legislatively usurped the trial court's

App. 119

Long - 119

responsibility in determining the

competency of witness. Gaines v.

Kentucky, S.W.2d _ (Ky. Sup.

4 No. 86-SC-39-MR, delivered 3/12/

87), 55 U.S.L.W. 2527 (April 7, 1987).

Vil.

Based on our’ previous

and authorities and for

stated, we find that Art.

supra is both facially

applied to the

observations

the reasons

38.071, §2,

and as it was

appellant a n

unconstitutional deprivation of his right

of confrontation under the

Fourteenth

States Constitution.

Amendments to

Sixth and

the United

In addition, and independent of the

above finding, we further find that Art.

38.071, §2, supra is both facially and as

Long - 120

it was applied to this appellant an

unconstitutional deprivation of his state

guaranteed right of confrontation under

Art. I, §10 of the Texas Constitution. 22

We further find that Art. 38.071,

§2, supra is violative of the due process

clause of the Fourteenth Amendment. In

22 Our decision that Art. 38.071, §2,

Supra, is unconstitutional under

both Art. I, §10 and Art. I, §19 of

the Texas Constitution (1876) is

made after a thorough analysis of

the statute, the applicable

constitutional provisions, and

available case law. It was also

made independent of our analysis of

the comparable constitutional

provisions (Sixth and Fourteenth

Amendments). Further, any federal

case@ that were cited in our

analysis of the state constitution

were used only for the purpose of

guidance, and do not’ themselves

compel the result that the Court has

reached.

Loy

mH HH HH HHH HHH HE EF EE

Long - 121

addition, and independent of our finding

that the federal due process guarantee is

offended by Art. 38.071, §2, supra we

Find that Art. 38.071, §2, supra

violates the due course of law guarantee

of Art. I, §19 of the Texas Constitution

(1876).°3

The legislative activity that

produced Art. 38.071, supra, was, as we

have recognized, well intended. However,

when the legislature imposes barriers on

an accused's constitutional rights it

should do so narrowly and only with great

caution and concern. In the instance of

child protection statutes the effort is

essentially aimed at reconciling

23 See fn. 23.

App. 122

Long - 122

opposites' the innocence of youth stained

by experience of age. Although it is not

an impossible task it is one that is made

difficult by the concerns we must by

necessity have for the rights of people

accused of crimes, no matter how vile and

repulsive the alleged offense. This area

of the law is dominated by emotion, which

is understandable in light of the

interests society wants to protect--

abused children. But irrespective of the

interests to be protected of greater

concern should be the adherence to our

constitutional rights. We cannot ever

permit emotion-charged issues to erode

our fundamental liberties. To do so

would produce emotionally pragmatic

deviations from established standards and

~~ ” a __— - » ew ee aE -ae ett we mel LL AIOE EL I PT OE, Oe

Long - 123

that will inevitably and ultimately

result in a complete erosion of those

rights that make us a free society.

Accordingly, the Court of Appeals is

affirmed and the cause remanded to the

trial court.

M. P. DUNCAN III, JUDGE

(Delivered July 1, 1987)

EN BANC

PUBLIC

App. 124

JAMES EDWARD LONG, PETITION FOR DIS-

Appellant CRETIONARY REVIEW

NO. 867-85 vs. FROM THE COURT OF

APPEALS, FIFTH THE

THE STATE OF SUPREME JUDICIAL

TEXAS, Appellee DISTRICT OF TEXAS

[Dallas County]

CONCURRING OPINION

Contrary to what many commentators,

trial and appellate court judges and

justices, legal scholars, law school

professors, prosecutors, defense

attorneys, defendants, victims, special

interest groups, etc., might believe, the

issue that is before this Court to

resolve is, in principle at least, not

one of first impression believe that

Judge Duncan, the author of the majority

opinion, has attempted to point this out

in his gargantuan effort for the Court

ue)

se)

)

LONG - 2

However, aS seen by Judge McCormick's

dissenting opinion, he has’ probably

failed in his herculean effort. The truth

of the matter is that the emperor, in

urging this Court to adopt what Judge

McCormick suggests, see the dissenting

opinion that he has filed in this’ cause,

comes to us only wearing a different form

of garb.

To appreciate Judge Duncan's

majority opinion for the Court, believe

that one must focus his attention on the

State's case in chief. Reader: Forget

what happened beyond this point.

Judge Duncan points out on pages 3

and 4 of his majority opinion for the

Court the trial procedure that was

followed in this cause reflected thereon,

App. 126 =

LONG - 3

when the State presented its case in

chief again appellant, the complaining

witness, although then available a

willing to testify against appellant, was

not called by the prosecute to testify

against him. Rather than call _ the

available and willing complaining witness

to testify against appellant during his

case in chief, the prosecutor, over

objection, but pursuant to the provisions

of Art. 38.071, V.A.C.C.P., chose to

substitute in her stead the record of the

pretrial videotape interview that had

been conducted the assistant director of

the Dallas Rape Crisis Center of t

complainant, who was not an officer of

the court. Neither the appellant nor his

attorney were present when the interview

App. 127

LONG - 4

took place. Indeed, by the

applicable provisions of Art. 28.07

Supra, they could not then be _ present.

Thus, appellant was not given the

opportunity to cross-examine the

complainant during the pretrial interview

session, nor was he given the opportunity

to cross-examine the complainant during

the State's case in chief.

Unquestionably, the record of the

pretrial videotape interview been

excluded for evidence during the State's

case in chief, and had the prosecutor n

called the complaining witness to testify

during that time, it clear from this

record that after the State rested its

cnc tags calli Se ES a

- Siren ae ~~

case appellant would have moved for and

the learned trial judge would have grant

Rey ere neem temens oa

a on

—

LONG - 5

his motion for an instructed verdict of

not guilty. If this had occurred, the

issue that Judge McCormick poses would

— _._ then perhaps present for this Court to

resolve.

Thus, what may have occurred after

the State rested its case chief is

irrelevant and immaterial to the issue

that is before us decide, which is rather

Simple, namely, was appellant denied his

rig to confront his accuser and cross-

examine her when the State present its

case in cnief, or, to put it another way,

was the State entitled to substitute in

the place of the complaining witness the

pretrial videotape interview of her, when

appellant was never given the opportunity

pretrial to cross-examine her. Given the

App. 129

LONG - 6

historical right of confrontation and

cross-examination, and court decisions,

the answers to these questions should be

obvious even to a normally intelligent

ten year old child.

The only real question that must be

answered in this cause is the following:

Whether the State, in presenting its case

in chief against appellant, was entitled

to substitute the above ex parte hearsay

pretrial videotape interview of the

complaining witness in the place of the

complaining witness' physical presence,

when she was then available and willing

to testify for the State but was not

called to testify at that time, and

neither appellant nor his attorney had be

given the opportunity to cross-examine

‘

;

‘

;

‘

LONG - 7

; & ;

the complainant when the pretrial

interview took place?

I find that the answer to the posed

question is controlled by t principles of

law announced in Pointer v. Texas, 380

U.S. 400, S.Ct. 1065, 13 L.Ed.2d 923

(1965), and California v. Green, 399 U.

149, 90 §.Ct. 1930, 26 L.Ed.2d 489

(1970). Judge McCormick suggestion that

the Supreme Court recently held in

Kentucky v. Stincer, -U.S.~-, -S.Ct.-, -

L.Ed.2d- (1987), to the contrary is sore

misleading.

In Kentucky v. Stincer, supra, an

aggressive and assertive majority of the

Supreme Court, which is’ hell bent on

mimicking the way trials are usually

conducted and held in countries such as

ue)

LONG - 8

Russia merely held that the exclusion of

the defendant, but not his counsel from a

hearing held to determine the competency

of two child witnesses was not violative

of the defendant's right of

confrontation. However, the two witnesses

testified during the prosecution's case

in chief and the defendant not only had

the opportunity but did fully and

completely cross-examine the witnesses at

that time. Of course, whether the above

majority of the Supreme Court will in the

future hold that a defendant may be

excluded from the courtroom while his

trial is being conducted, and he is not

guilty of such misconduct that warrants

his removal, remains to be seen.

LONG - 9

I will first address this Court's

decision of Pointer v. State, 375 S.W.2d

293 (Tex.Cr.App.1964, which was decided

when this Court was looked upon much like

many of us look upon the Supreme Court of

the United States today - with pity.

In Pointer v. State, supra, an

examining trial was held in that cause.

The opinion reflects that the defendant

was not represented by counsel at the

examining trial. The opinion by the

Supreme Court reflects that although the

defendant did not personally cross-

examine the complaining witness he

apparently tried to cross-examine some of

the other State's witnesses. The case was

bound over to the Grand Jury and the

defendant was later indicted for robbing

LONG - 10

the complainant. In presenting its case

in chief against the defendant, the State

did not seek to have the complainant, who

had moved from Texas to California after

the offense had occurred, testify but,

instead, relied upon the witness'

examining trial testimony. Art. 750 of

the 1925 Code Criminal Procedure, which

then controlled, see now Art. 39.12,

V.A.C.C.P., provided: "The deposition of

a witness taken before an examining court

Or a jury of inquest, and reduced to

writing, a certified according to law, in

cases where the defendant was present

when such testimony was taken, and had

the privilege afforded him of cross-

examining the witness, may be read in

evidence as is provided in [Art. 749,

SSS

4°)

ue)

LONG - ll

C.C.P., which provided in part that same

was admissible if the witness had removed

himself beyond the limits of the State]

for the reading in evidence of

depositions." The defendant was

convicted. This Court affirmed. In

affirming the conviction, this Court held

that the proper predicate had been

established for the admissibility of the

"deposition", as all of the prerequisites

had been met. Through the testimony of

the complainant's sister, the State

established that the witness not only had

permanently moved to California, he was

at the time of trial physically present

in California and thus unavailable to

testify at trial. The State apparently

made no effort to obtain the witness'

App. 135

LONG - 12

physical presence for the trial, opting

instead to rely entirely upon the above

statute. This Court rejected the

defendant's contention that because he

was not represented by counsel at the

examining trial, the “deposition” was

inadmissible evidence. In rejecting this

contention, the Court simply held that a

defendant was not entitled to the

appointment of counsel at an examining

trial and further held that an examining

trial was not a critical stage of the

proceeding. Interestingly, there is not

a single word in the unanimous opinion by

this Court about the right of the

defendant to confront cross-examine the

complaining witness during the examining

trial.

LONG - 13

The Supreme Court of the United

States, in Pointer vy. Texas, supra,

granted certiorari in order to decide

whether the Fourteenth Amendment's

guarantee of a defendant's right "to be

confronted with the witness against him"

was applicable to the States by virtue of

the Fourteenth Amendment, and answered

the question in the affirmative.

Previously, the Supreme Court had ruled

that for purposes of the Six Amendment

that right was guaranteed to federal

defendants. The Supreme Court also held

that under the circumstances of the case,

the use of the complaining witness'

examining trial transcript to convict the

defendant denied him rights guaranteed by

the Sixth and Fourteenth Amendments to

App. 137

LONG - 14

the Federal Constitution: “We hold today

that the Sixth Amendment's right of an

accused to confront the witnesses against

him is like [the right to counsel, which

is] and is fundamental right and made

obligatory on the States by the

Fourteenth Amendment[,] . . . and the

right of cross-examination is included in

the right of an accused in a criminal

case to confront the witnesses against

him. . . and to deprive an accused of

the right to cross-examine the witnesses

against him is a denial of the Fourteenth

Amendment's guarantee of due process of

law.." 380 U.S. at 403, 85 S.Ct. at 1068.

In passing, the Supreme Court observed:

"The case before us would be quite a

different one had [the complainant's]

App. 138

LONG - 15

statement been taken at a full-fledged

hearing at which petitioner had been

represented by counsel who had been given

a complete and adequate opportunity to

cross-examine [the witness]." U.S. 380

at 407, 85 S.Ct. 1069-1070. In a

relatively short period of time, a little

over 5 years later, the Supreme Court was

presented with just such a case.

In California v. Green, 399 U.S.

719, 88 S.Ct. 1318, 20 L.Ed2d 255 (1968),

in the presentation of its case in chief,

due to the fact that the State's “star”

witness had become "markedly evasive and

uncooperative on the stand", the

prosecution was permitted to rely upon

the transcript from the preliminary

hearing that had been held in that cause,

App. 139

LONG - 16

as substantive evidence during its case

in chief to establish the defendant's

guilt. The transcript was admissible

pursuant to a California statute which

provided that "evidence of a statement

made by a witness is not made

inadmissible by the hearsay rule if the

statement is inconsistent with his

testimony at the hearing and is offered

in compliance with 770", which merely

required that the witness be given an

Opportunity to explain or deny the prior

Statement at some point during the trial.

t the preliminary hearing, the defendant

was represented by counsel and the

witness was subject to full and complete

Ccross-examination _ by counsel. The

California Supreme Court reversed the

LONG - 17

conviction, holding that § 770 was

unconstitutional insofar as it permitted

the substantive use of prior inconsistent

statements of a witness to convict the

defendant, even though the statements

were subject to cross-examination at the

prior hearing. The Supreme Court of the

United States reversed.

In reversing the California Supreme

Court's decision, the Supreme Court held

that the issue before it was whether a

defendant's constitutional right "to be

confronted with the witnesses against

him" is necessarily inconsistent with a

State's decision to change its hearsay

rules of evidence to permit the

substantive use of prior inconsistent

statements to convict the defendant on

App. 141

LONG - 18

the theory that the usual dangers of

hearsay are largely nonexistent where the

witness testifies at trial, and answered

the question in the negative. In _ so

holding, the Supreme Court pointed out

that "there is good reason to conclude

that the Confrontation Clause is not

violated by admitting a declarant's out-

of-court statements, as long as the

declarant is testifying as a witness and

subject to full and effective cross-

examination." (My emphasis.) 399 U.S. at

159, 90 §.Ct. at 1935.

LONG - 7

Thus, the Supreme Court merely held

in Green, supra, that the California

statute, § 770, supra, was not

unconstitutional on its’ face. It also

ue)

‘

LONG - 19

held that the Confrontation Clause of the

Sixth Amendment to the Federal

Constitution did not preclude the

introduction of the witness' out-of-court

declaration, which came from the

preliminary hearing, which had been taken

under oath at which the witness had been

subjected to full and complete cross-

examination, to prove the truth of the

matters asserted therein. The Supreme

Court in passim referred to the fact that

the declarant was not only available as a

witness at the defendant's trial, he was

actually called to testify and did

testify for the prosecution in its case

in chief, even though when testifying he

was "markedly evasive and uncooperative

on the stand." The prosecutor used the

ue)

—"

LONG - 20

transcript from the preliminary hearing

to “refresh” the witness' memory, and

apparently not for impeachment purposes.

Thus, there was no inability Or

unavailability of the witness exception

present in that case.

The State in this cause, in urging

that under the circumstances of this

case, the applicable provisions of

Article 38.071, supra, are facially

constitutionally valid, has obviously

chosen to selectively pluck certain

language out of context from California

v. Green, supra, to support its position.

The State would do well to read and re-

read what Justice Harlan stated in the

initial paragraph of the concurring

opinion that he filed in that case, in

a”

re ee ee ee ee ee ee ee Oe Oe

App. 144

LONG - 21

order that it might understand what the

Supreme Court actually decided in Green,

Supra: "The precise holding of the Court

today is that the Confrontation Clause of

the Sixth Amendment does not preclude the

introduction of an out-of-court

declaration, taken under oath and subject

to cross-examination, to prove the truth

of the matters asserted therein, when the

declarant is available as a witness at

trial." 90 S.Ct. at 1942. (My emphasis.)

The case at Bar does not encompass

Or implicate the situation where the

accused and his counsel were given the

opportunity to be present and cross-

examine the complaining witness pretrial,

which occurred in California Vv. Green,

supra. The issue here concern whether

— ee

App. 145

LONG - 22

the applicable provisions of Art.

38.071, supra, should be upheld in order

to permit the State to introduce into

evidence during its case in chief an ex

parte out-of-court hearsay statement of

witness, that was recorded pretrial ona

videotape, at which appellant was not

given the opportunity to be present and

cross-examine the witness, and the

witness waS available and willing to

testify against the defendant during the

State's case in chief.

I find that too much attention is

focused upon the Fact that the

complaining witness testified as a

rebuttal witness at trial, and too little

attention is given to what was admitted

into evidence during the State's case in

App. 146

LONG - 23

chief. See Judge McCormick's dissenting

opinion.

It is now axiomatic that proof

beyond a reasonable doubt is among the

essentials of due process and due course

of law. "The requirement that guilt of a

Criminal charge be established by proof

beyond reasonable doubt dates at least

from our early years as a Nation. . ‘

[and] unless there remains any doubt

about the constitutional stature of the

reasonable-doubt standard, we {the

Supreme Court] explicitly hold that the

Due Pr

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