In The

Supreme Court of the United States




Decided June 29, 1988

Justice O’Connor, Concurring

Topic: Criminal Procedure*Court vote: 6–2
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Joining O'Connor opinion: Justice WHITE Justice WHITE
Citation: 487 U.S. 1012 Docket: 86–6757Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, with whom JUSTICE WHITE joins, concurring.

I agree with the Court that appellant's rights under the Confrontation Clause were violated in this case. I write separately only to note my view that those rights are not absolute, but rather may give way in an appropriate case to other competing interests so as to permit the use of certain procedural devices designed to shield a child witness from the trauma of courtroom testimony.

Child abuse is a problem of disturbing proportions in today's society. Just last Term, we recognized that

[c]hild abuse is one of the most difficult problems to detect and prosecute, in large part because there often are no witnesses except the victim.

Pennsylvania v. Ritchie, 480 U. S. 39, 480 U. S. 60 (1987). Once an instance of abuse is identified and prosecution undertaken, new difficulties arise. Many States have determined that a child victim may suffer trauma from exposure to the harsh atmosphere of the typical courtroom, and have undertaken to shield the child through a variety of ameliorative measures. We deal today with the constitutional ramifications of only one such measure, but we do so against a broader backdrop. Iowa appears to be the only State authorizing the type of screen used in this case. See generally App. to Brief for American Bar Association as Amicus Curiae 1a-9a (collecting statutes). A full half of the States, however, have authorized the use of oneor twoway closed-circuit television. Statutes sanctioning one-way systems generally permit the child to testify in a separate room in which only the judge, counsel, technicians, and in some cases the defendant, are present. The child's testimony is broadcast into the courtroom for viewing by the jury. Two-way systems permit the child witness to see the courtroom and the defendant over a video monitor. In addition to such closed-circuit television procedures, 33 States (including 19 of the 25 authorizing closed-circuit television) permit the use of videotaped testimony, which typically is taken in the defendant's presence. See generally id. at 9a-18a (collecting statutes).

While I agree with the Court that the Confrontation Clause was violated in this case, I wish to make clear that nothing in today's decision necessarily dooms such efforts by state legislatures to protect child witnesses. Initially, many such procedures may raise no substantial Confrontation Clause problem, since they involve testimony in the presence of the defendant. See, e.g., Ala.Code § 15-25-3 (Supp.1987) (one-way closed-circuit television; defendant must be in same room as witness); Ga.Code Ann. § 17-8-55 (Supp.1987) (same); N.Y.Crim.Proc.Law §§ 65.00-65.30 (McKinney Supp.1988) (two-way closed-circuit television); Cal.Penal Code Ann. § 1347 (West Supp.1988) (same). Indeed, part of the statute involved here seems to fall into this category, since, in addition to authorizing a screen, Iowa Code § 910A.14 (1987) permits the use of one-way closed-circuit television with "parties" in the same room as the child witness.

Moreover, even if a particular state procedure runs afoul of the Confrontation Clause's general requirements, it may come within an exception that permits its use. There is nothing novel about the proposition that the Clause embodies a general requirement that a witness face the defendant. We have expressly said as much, as long ago as 1899, Kirby v. United States, 174 U. S. 47, 174 U. S. 55 (1899), and as recently as last Term, Pennsylvania v. Ritchie, 480 U.S. at 480 U. S. 51. But it is also not novel to recognize that a defendant's "right physically to face those who testify against him," ibid., even if located at the "core" of the Confrontation Clause, is not absolute, and I reject any suggestion to the contrary in the Court's opinion. See ante at 487 U. S. 1020 -1021. Rather, the Court has time and again stated that the Clause "reflects a preference for face-to-face confrontation at trial," and expressly recognized that this preference may be overcome in a particular case if close examination of "competing interests" so warrants. Ohio v. Roberts, 448 U. S. 56, 448 U. S. 63 -64 (1980) (emphasis added). See also Chambers v. Mississippi, 410 U. S. 284, 410 U. S. 295 (1973) ("Of course, the right to confront... is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process"). That a particular procedure impacts the "irreducible literal meaning of the Clause," ante at 487 U. S. 1021, does not alter this conclusion. Indeed, virtually all of our cases approving the use of hearsay evidence have implicated the literal right to "confront" that has always been recognized as forming "the core of the values furthered by the Confrontation Clause," California v. Green, 399 U. S. 149, 399 U. S. 157 (1970), and yet have fallen within an exception to the general requirement of face-to-face confrontation. See, e.g., Dutton v. Evans, 400 U. S. 74 (1970). Indeed, we expressly recognized in Bourjaily v. United States, 483 U. S. 171 (1987), that "a literal interpretation of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is unavailable," but we also acknowledged that "this Court has rejected that view as unintended, and too extreme.'" Id. at 483 U. S. 182 (quoting Ohio v. Roberts, supra, at 448 U. S. 63 ). In short, our precedents recognize a right to face-to-face confrontation at trial, but have never viewed that right as absolute. I see no reason to do so now, and would recognize exceptions here as we have elsewhere.

Thus, I would permit use of a particular trial procedure that called for something other than face-to-face confrontation if that procedure was necessary to further an important public policy. See ante at 487 U. S. 1021 (citing Ohio v. Roberts, supra; Chambers v. Mississippi, supra ). The protection of child witnesses is, in my view and in the view of a substantial majority of the States, just such a policy. The primary focus therefore likely will be on the necessity prong. I agree with the Court that more than the type of generalized legislative finding of necessity present here is required. But if a court makes a case-specific finding of necessity, as is required by a number of state statutes, see, e.g., Cal.Penal Code Ann. § 1347(d)(1) (West Supp.1988); Fla.Stat. § 92.54(4) (1987); Mass.Gen.Laws § 278:16D(b)(1) (1986); N.J.Stat.Ann. § 2A:84A-32.4(b) (Supp.1988), our cases suggest that the strictures of the Confrontation Clause may give way to the compelling state interest of protecting child witnesses. Because nothing in the Court's opinion conflicts with this approach and this conclusion, I join it.

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