¶1dissenting.
¶2The trial court committed no abuse of discretion in permitting the child witness, appellant’s natural daughter, to testify by means of closed-circuit television. From the psychological evidence presented and from the inherent nature of the parent-child relationship, the child witness would have been traumatized by being required to testify against her father, face-to-face.
¶3The Supreme Court of the United States recognized in Maryland v. Craig, 497 U.S. 886, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), that the Sixth Amendment right of confrontation does not in every case require an in-person meeting between the witness and the accused. The Court held that to require such confrontation would result in the exclusion of virtually all hearsay testimony despite the universal existence of many exceptions to the hearsay rule. (Kentucky recognizes twenty-three such exceptions. KRE 803.) Rather, the Court determined that a child witness need not be subjected to such psychological trauma, particularly where it would impair the child’s ability to communicate, providing a procedure was in place which insured the reliability of the evidence by subjecting it to adversarial testing and preserving the essence of effective confrontation.
¶4In Commonwealth v. Willis, Ky., 716 S.W.2d 224 (1986), this Court upheld the constitutionality of KRS 421.350(3) and (4) by which a trial judge is granted discretion to utilize closed-circuit television to prevent a child victim from observing the defendant. We also held that Section 11 of the Constitution of Kentucky should be consonantly construed with the Sixth Amendment to the Constitution of the United States. Thus, Maryland v. Craig would be highly persuasive.
¶5While the statute referred to hereinabove addresses only child victims, by virtue of our determination that it is not unconstitutional, it follows that a trial court would have inherent power to fashion a similar means of protection for non-victim child witnesses. Provided there are proper safeguards and provided the trial judge determines that a means such as closed-circuit television is necessary to obtain the testimony and protect the child, there is no constitutional violation and no abuse of discretion.
¶6SPAIN and WINTERSHEIMER, JJ., join this dissenting opinion.
¶7dissenting.
¶8I must respectfully dissent from the majority opinion because the trial judge did not commit reversible error when he allowed a child to testify by closed circuit television. The defendant received a fundamentally fair trial. I appreciate the views expressed in the concurring and dissenting opinions but I wish to state my opinion separately.
¶9The 8 year old rape victim testified in open court. This appeal centers around the video testimony of her 12 year old half-sister who witnessed the crime. Full cross-examination was permitted. The defendant was the father of the witness and the stepfather of the victim.
¶10Commonwealth v. Willis, Ky., 716 S.W.2d 224 (1986) upheld the constitutionality of KRS 421.350(3) and (4) which allowed use of closed circuit television for crime victims. Willis, supra,also held that Section 11 of the Kentucky Constitution should be construed as being consistent with the 6th Amendment to the U.S. Constitution. Williscontains an in depth review of the legal philosophy underlying use of closed circuit television testimony.
¶11Now we face the question of a child witness who is not a direct victim. The language of the statute does not address this situation. The legislature does not have exclusive authority in this area. The doctrine of separation of powers can be applied so that the responsibility of the trial judge to admit testimony cannot be limited by statute. However, the rational basis for the constitutionality of the video procedure can be logically applied to a child witness. The problem solved by the statute is fear; it is the same problem for a child witness as a child victim.
¶12Application of any right, constitutional or otherwise, must pass a balancing test. Here the concern for ascertaining the truth is of primary importance. The rights of the ae-*944cused are important but the victim and witnesses have an expectation to be free of fear. Cf. Willis. The proper balance is the duty of the trial judge. The sensibilities of the witnesses must be of great concern to the search for truth and the proper conduct of any judicial proceeding. The major consideration is whether the testimony is truthful and accurate. A witness who is intimidated or paralyzed by fear is of a questionable value.
¶13State v. Sheppard, 197 N.J.Super. 411, 484 A2d 1330 (1984) upheld a trial court which permitted, without an authorizing statute, the use of closed circuit television testimony under circumstances similar to those described in KRS 42.350. Willis. It could be argued that the perfect solution would be the enactment of a statute extending protection to child witnesses. Certainly the legislative adoption of a discretionary method for admission of evidence is not violative of separation of powers. Cf. Willis.
¶14However, the trial judge controls the conduct of the trial. The rights of the accused must be balanced with the need for a truthful fact finding process. Cf. Willis, p. 229.
¶15Guidelines which could be applied by any trial judge in such a case may be found in Sheppard, supra.They include but are not limited to long range emotional consequences and accuracy of testimony. See Sheppard, 484 A.2d pp. 1332 and 1344; Willis p. 230-31.
¶16I would affirm the conviction.
¶17SPAIN, J., joins in this dissent.