¶1dissenting.
¶2I respectfully dissent from the majority opinion. The majority has observed correctly that the Indiana statute does not violate the constitution of the United States. However, the majority finds that the statute does violate the "face-to-face" requirement of the constitution of Indiana.
¶3I believe the majority opinion in the Court of Appeals correctly addressed this question. At the time our constitutions were written and the dictionary definitions of "face to face" were written, society did not have the benefit of the various electronic devices which now are available for the preservation and presentation of evidence.
¶4There is no question that the "face-to-face" rule is an essential part of our judicial system and should be guarded carefully to assure due process. The Indiana statute, at issue here, demonstrates that the legislature was fully aware of this need and at the same time was addressing a very serious social problem of the extreme psychological impingement resulting from the requirement of in-court testimony of child victims of molestation.
¶5The statute sets out guidelines and requires those guidelines to be implemented by the trial court before ordering the videotaping of a child. When those guidelines are followed, the accused has every opportunity, through his attorney, or by himself, if he is appearing pro se, to face his accuser and fully explore the possibilities that her version of the incident is not correct.
¶6On the one hand, I can see little if any impairment to a defendant's ability to defend himself under the implementation of the statute. On the other hand, I see great potential harm to the psyche of the child witness if required to appear in open court. In some cases the harm might be so great as to cause a lifetime impairment.
¶7In preserving the rights of a defendant, I do not think we should become so technically involved that we unnecessarily traumatize the victim. I believe the statute is drawn carefully and was implemented properly in this case.
¶8I would affirm the trial court.
¶9KRAHULIK, J., concurs.
¶10dissenting.
¶11I respectfully dissent from the majority opinion.
¶12Brady alleges that Indiana Code Section 35-37-4-8, the statutory provision allowing for videotaped testimony of child witnesses to be admitted in lieu of actual appearance at trial is unconstitutional under both the Sixth Amendment of the United States Constitution and article 1, § 13 of the Indiana Constitution. Because I do not believe that the statute is constitutionally deficient under either the Federal or the Indiana Constitution, I dissent.
¶13The majority correctly concludes that the statute passes muster under the Federal Constitution's requirement of confrontation. I believe that the statute also is appropriate under the provisions of the Indiana Constitution.
¶14Unlike the Sixth Amendment of the United States Constitution, which guarantees the accused in a criminal proceeding the right "to be confronted with the witnesses against him," Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), Article I, Section 13, of the Indiana Constitution provides that all criminal prosecutions, the accused shall have the right ... to meet the witness face to face." Al though little is known about the actual intention of the framers when drafting this language, it can naturally be assumed that they were guided by a desire to provide protections similar to those guaranteed by the 6th Amendment. See generally, Debates of Indiana Convention, 1850. In accomplishing this task they chose words that conveyed specific meanings. By examining the generally accepted common and legal meanings of the words selected 'we can ascertain what principles the framers singled out for protection. These are the ideas to which we must be true.
¶15In Noah Webster's American Dictionary of the English Language, published in *9911856, "face to face" is defined as the "state of confrontation." Bouvier's Law Dictionary, published in 1883 provides the following definition of "confrontation":
The act by which a witness is brought into the presence of the accused, so that the latter may object to him, if he can, and the former may know and identify the accused and maintain the truth in his presence.
¶16Bouvier's Law Dictionary, 1883, Vol. 1 at 369.
¶17These definitions suggest that the drafters designed the confrontation provision of Article I, Section 13 to accomplish three essential objectives: to allow the witness to make an identification of the accused, to afford the defendant the opportunity to challenge or examine the witness, and to create a setting that would impress the witness with the importance of his task and encourage his truthful testimony.
¶18Of these elements, the right of the defendant to examine the witness is most sacred. "Indiana courts have clearly determined that cross-examination is the primary interest secured by the confrontation right in Article I, Section 13, of the Indiana Constitution." Miller v. State (1987), Ind., 517 N.E.2d 64, 69. In Miller, a decision upholding the constitutionality of I.C. § 35-37-4-6 (Burns 1987 Supp.), which provided for the admissibility of videotaped statements of sex abuse victims under the age of ten, this court adopted a description of the vital elements of confrontation at trial provided in Mattox v. United States as:
[A] personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and shifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.
¶19Miller at 68, quoting, Mattox v. United States (1895), 156 U.S. 237, 242-48, 15 S.Ct. 337, 339, 39 L.Ed. 409, 411.
¶20Therefore, confrontation requires the government to provide procedures that give the accused the ability to test the witness' accuracy and credibility before the trier of fact. Any method accomplishing those objectives is sufficient under the Constitution's confrontation provision.
¶21The procedures outlined in LC. § 35-87-4-8 do not impair the defendant's right or ability to cross-examine the witness. The accused's interest in participating in his defense in a meaningful way is insured. Under either of the prescribed protocols listed in the statute, the defendant retains the ability to see and hear the witness' testimony as it is given. He may communicate with his counsel contemporaneously for the purpose of making observations and suggestions. Additionally, the trier of fact, under both the closed-circuit or pre-taped arrangement, will view the witness' examination for the purpose of assessing demeanor and credibility. The arrangement provided in the statute does not hinder cross-examination, it merely requires that it be done in a less threatening setting than in a full court room.
¶22A second rationale for requiring the witness to make his charges in the defendant's physical presence is that by requiring the accused to look the defendant in the eye he is more likely to be truthful. In molestation cases, however, face to face confrontation may do more to hinder full, honest testimony by the witness than to encourage it. The nature of the relationship between the witness and the accused, the highly embarrassing character of the testimony and the courtroom setting itself combine to create a stressful, traumatic environment likely to make the child a reluctant, unreliable witness. Particularly, in cases where the accused is a family member or trusted friend the child is likely to be intimidated from giving clear, honest testimony out of fear, respect for authority, or even love of the accused.
¶23Opponents of these alternate methods of testimony argue that although it is unfortunate that in-court testimony is difficult for the witness, such "trial by ordeal" is necessary to expose the witness who has *992been coached or is lying. Although logical, this argument mischaracterizes the nature and purpose of witness examination. Trial testimony, although naturally somewhat stressful, is not intended to be an ordeal for the witness. Rather, it is designed to be an engine for seeking and attaining truth. The revelation of an untruthful witness is properly the result of skillful cross-examination and not of a "stare-down" from the accused. The statute does not deprive the defendant of the right to conduct a thorough, vigorous, cross-examination in full view of the jury. The statute is designed merely to allow the witness to testify in a less intimidating setting and thereby fmnerease the chances for complete, honest testimony while decreasing the trauma to the child.
¶24At least thirty-four other states have accepted these and other similar arguments and drafted statutes allowing videotaped testimony for child victims of or witnesses to certain types of crimes. Miller at 67-68, n. 4. Twenty-three have established procedures for testimony over closed-circuit television. Id. at 68, n. 5. Although the statutes vary greatly, each evidences a belief that some measure must be taken to provide additional protection for child witnesses and that these safeguards can be created without endangering the constitutional rights of an accused.
¶25A majority of the statutes challenged in their state court have been upheld. Nota bly, the constitutions of several of these states contain the same "face to face" language found in our Constitution. See eg., Kentucky Constitution section 11. Kentucky's highest court upheld the constitutionality of their statute in Commonwealth v. Willis (1986), Ky., 716 S.W.2d 224.
¶26Indiana's requirement of face-to-face meetings is not to be read for its literal language but for the intentions conveyed by that language. Miller at 71. The framers' objective in including Article I, Section 13, was to ensure protection of the defendant's right to conduct a cross-examination of the witness that could be viewed by the trier of fact. The choice of the "face-to-face" language stemmed from the inability to predict technology that would meet its objectives without requiring actual physical presence of the witness in the courtroom. The accused does not have a constitutionally protected right to stand eyeball to eyeball with his accuser. The essential issue is whether the procedure in question ensures the rights outlined by the framers. I believe it does.
¶27GIVAN, J., concurs.