¶1dissenting. I do not believe the appellant’s confession was voluntarily given because the record discloses that she did not knowingly and intelligently waive her Fifth Amendment right to remain silent. She was tricked into making the inculpatory statement by an expert. I do not rely entirely on the lack of an express waiver in the rights form as the basis for this dissent. The majority correctly holds that it is not an absolute requirement that a waiver be written or expressed. Without a doubt a proper written waiver would be most helpful. I can think of no valid reason why the state police should not use a proper form in such matters. Several years after the statement in Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1983), there is still no evidence of change. Such change would save time and expense to the police and the courts. An accused does not waive his rights merely by having them explained to him.
¶2The appellant was thirty-seven years of age and had not completed high school, although she had twice tried to obtain a GED. This was her first encounter ever with the law. She had been held in jail overnight before being hooked up to a polygraph machine for testing. The results of the test, even if incriminating, would not have been admissible. After completing the test and finding it to be inconclusive, the officer did not reveal the results to her, but rather told her that her husband had been man enough to give a written statement and come clean about the matter and she ought to do likewise. The officer admitted it was routine to act disappointed if the tests were inconclusive. This gives him a psychological advantage, especially over uneducated and inexperienced persons. He stated his purpose well when he said, “I felt it was my job to get that statement from her that day.” When it is considered that her husband had confessed and in doing so had exonerated her, and she had previously maintained her innocence, it becomes clear that the police had overreached their authority in order to obtain the written confession. A confession was the state’s only hope at this point of the case.
¶3The court allowed videotaped depositions upon the word of a social worker that she felt it would always be easier for children to testify by videotape; No doubt it would. The same statement would apply to about ninety-nine percent of all witnesses. There was no reason given other than it was in the best interests of the children. “Many factors can and should be considered in determining what is good cause” to take video depositions. McGuire v. State, 288 Ark. 388, 706 S.W.2d 360 (1986). The legislature might as well have left the words “for a good cause shown” out of the statute if it is entirely up to the prosecutor, or a social worker to subjectively decide whether to take videotaped instead of live testimony. These children told a lot of conflicting stories and did a goodly amount of “acting out” sexual acts even after they were in foster homes. They said it just came naturally. They should have been subjected to the same procedures of confrontation as any other witnesses.
¶4I would remand for a new trial.